(PC) Witkin v. Thomas

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL AARON WITKIN, No. 2:22-cv-01310 DJC DB P 12 Plaintiff, 13 v. ORDER R. THOMAS, 15 Defendant.

17 Plaintiff, a former state prisoner, proceeds without counsel in an action brought under 42 18 U.S.C. § 1983. On February 28, 2023, plaintiff was granted leave to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915(a).

20 On September 11, 2023, defendants filed a motion to revoke plaintiff’s IFP status. (ECF No. 23.) Defendants argue plaintiff made false allegations of poverty, and in addition, that his financial circumstances have improved. (ECF No. 23.) Defendants also seek to have the case dismissed as malicious under 28 U.S.C. § 1915(e)(2)(B)(i). (Id.) The motion is fully briefed. For the reasons set forth below, the court orders plaintiff to submit, within 21 days of the date of this order, an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (“AO 239”).1 This form is available at https://www.uscourts.gov/forms/fee-waiver-application- forms/application-proceed-district-court-without-prepaying-fees-or.

1 “IFP status may be acquired or lost during the course of the litigation, and the court may || waive or order payment of costs for any of the benefits that may arise under the statute.”

3 | Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), aff’d in part, vacated in part on | other grounds sub nom. Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995); see also Evans v. | Croom, 650 F.2d 521, 525 n. 12 (4th Cir. 1981). The court may revoke plaintiffs IFP status “if | there is sufficient evidence that plaintiffs financial condition has improved to the point that | plaintiffs economic situation is no longer a significant barrier to maintaining the action.” Murphy | v. Jones, 801 F. Supp. 283, 289 (E.D. Mo. 1992); see also Carter v. Telectron, Inc., 452 F. Supp. 9 | 939, 942 (S.D. Tex. 1976) (“if the allegation of poverty is no longer true because of a subsequent | improvement in the economic status of plaintiff, it is within the authority of this Court to dismiss | the proceeding... or... require that the costs of the litigation to date be paid by plaintiff in lieu of | dismissal” (internal citations omitted)).

13 In accordance with the above, IT IS ORDERED as follows: 14 1. Within 21 days of the date of this order, plaintiff shall submit a fully completed 15 and signed Application to Proceed in District Court Without Prepaying Fees or Costs (Long | Form) (“AO 239”).

17 2. Plaintiff is cautioned that failure to submit a fully completed and signed AO 239 | form will result in a recommendation that this action be dismissed for failure to obey a court | order.

20 | Dated: November 27, 2023 23 wiak1310.tp long ORDH BARNES UNITED STATES MAGISTRATE JUDGE