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Ondrick v. Chatham County

United States District Court, S.D. Georgia, Savannah Division

August 13, 2014

MARK ONDRICK, II, Plaintiff,
v.
CHATHAM COUNTY, GEORGIA, Defendant.

ORDER

G.R. SMITH, Magistrate Judge.

Mark Ondrick II, proceeding pro se , has filed three 42 U.S.C. § 1983 lawsuits. Like his other two cases, this one appears to be based on his state court guilty plea and conviction for criminal trespass. See doc. 1 at 2-3 (complaining that he "never got appeal hearing for my bond!"); attached state court record. He also moves for leave to proceed in forma pauperis (IFP). Doe. 2. Located at the address that he provides (doc. 1 at 5) is a 5-bedroom, 4-bathroom home ( see attached print-out), yet on an IFP form that he's left largely blank, he claims to be completely penniless. Doc 2at 1-2.

Of course, the obvious question must be posed to this convicted criminal: How exactly does he live? Courts have inquired:

In an effort to prevent fraud, courts required the supporting affidavit to state facts concerning the plaintiffs poverty with some level of "particularity, definiteness, and certainty." Jefferson v. United States , 277 F.2d 723, 725 (9th Cir. 1960) (per curiam). Courts also retained the authority to deny IFP status if a plaintiff deliberately failed to report available assets. See, e.g. , Cofield v. Ala. Pub. Serv. Comm'n , 936 F.2d 512, 517-19 (11th Cir. 1991) (affirming the lower court's denial of IFP status because it appeared that the applicant had access to an unknown amount of money either through his family, his extortion activities, or his legal work on behalf of fellow inmates). But see Acevedo v. Reid , 653 F.Supp. 347, 348-49 (S.D.N.Y. 1986) (excusing an inmate's failure to report his veterans' benefits and prison salary on his application for IFP status where (1) there was no evidence that he had acted in bad faith, and (2) he would have been eligible for IFP status even if those assets were taken into account). Similarly, courts could deny IFP status if they found that an applicant had intentionally depleted his resources in order to qualify for a fee waiver. See, e.g. , Collier v. Tatum , 722 F.2d 653, 655 (11th Cir. 1983) (authorizing the lower court to examine the plaintiffs financial dealings during the time period immediately preceding the filing of the suit to determine whether he had intentionally shifted or wasted assets that he otherwise could have used to finance the action).

Julia Colarusso, Out of Jail... But Still Not Free to Litigate? Using Congressional Intent to Interpret 28 U.S.C. § 1915(b)'s Application to Released Prisoners , 58 AM. U. L. REV. 1533, 1566 n. 41 (2009).

It undeniably costs money to live, but Ondrick declares "under penalty of perjury" that he has zero assets of any kind. Doe. 2 at 1-2. The Court doubts the credibility of that statement. Wary of such indigency claims and cognizant of how easily one may consume a public resource with no financial skin in the game, [1] this Court demands supplemental information from dubious IFP movants. See, e.g. , Kareem v. Home Source Rental , 986 F.Supp.2d 1345 (S.D. Ga. 2013); Robbins v. Universal Music Group , CV412-292, 2013 WL 1146865 at * 1 (S.D. Ga. Mar. 19, 2013).[2]

To that end, it tolerates no lies. Ross v. Fogam , CV411-114, 2011 WL 2516221 at * 1 (S.D. Ga. June 23, 2011) ("Ross, a convicted criminal, chose to burden this Court with falsehoods, not honesty. The Court thus rejects Ross's show cause explanation, as it is clear that he purposefully chose to disguise his filing history and financial status."); Johnson v. Chisolm , CV411-127, 2011 WL 3319872 at * 1 n. 3 (S.D. Ga. Aug. 1, 2011) ("This Court does not hesitate to invoke dismissal and other sanctions against inmates who lie to or otherwise deceive this Court."); see also Moss v. Premiere Credit, LLC , CV411-123, doe. 54 (S.D. Ga. Mar. 6, 2013) (Eleventh Circuit Order: "Moss's [IFP on appeal] motion is DENIED because her allegation of poverty appears to be untrue in light of her financial affidavit and filings in the district court.").[3]

Given the totality of the circumstances, it will do likewise here.[4] Therefore, within 14 days from the date of this Order, Ondrick shall disclose to the Court the following information:

(1) What he spends each month for basic living expenses such as food, clothing, shelter, and utilities, and the dollar value of any public or private assistance he may receive;
(2) Where he gets the money to pay for those expenses (include all "off-the-books" income, whether in cash or in-kind);
(3) Whether he owns any means of transportation and, if he does not, whether he has regular access to same, as owned by another (including a rental company);
(4) Whether he possesses a cellular telephone, TV set, and any home electronics equipment (include estimated value and related carrying expenses, such as carrier and subscription fees);
(5) Whether he has any credit or debit cards;
(6) Whether he is the account owner, or has signature power, as to any accounts with a bank or other financial institution;
(7) Whether he anticipates any future income within the next year.
(8) A list of any other cases (beyond those noted here) showing an indigency-based, filing fee reduction or waiver granted by any other court (include the full case name, case number and the name of the court granting same).
(9) Any other source of financial support (friends, relatives, etc).

Answering these points will better illuminate Ondrick's true financial condition. In that regard, he must again declare the facts he pleads to be true under penalty of perjury.[5] If he does not use a preprinted IFP form to respond (hence, if he uses a blank sheet of paper), he must insert this above his signature: "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." 28 U.S.C. § 1746(1). The Clerk is DIRECTED to serve with this Order a blank IFP form for Ondrick's convenience. In his response to this Order he must reproduce each enumerated item above and legibly write (or type) his complete answer directly after it. Failure to comply with this directive will result in a recommendation of dismissal. Kareem v. Home Source Rental , 2014 WL 106632 at *1 (S.D. Ga. Jan. 9, 2014) (advising dismissal for non-compliance in similar IFP-information case), adopted , 2014 WL 2700632 (S.D. Ga. Jun 13, 2014).

SO ORDERED.


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