Giordano v. Powell CV-92-522-B 08/05/94

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Vincent Giordano v. Civil No. 92-522-B

Ronald Powell, et al.

O R D E R

On May 27, 19 94, I held an evidentiary hearing on the

state's motion to dismiss (document no. 24). Based on the

evidence presented, I conclude that Giordano willfully made

materially false allegations in the in forma pauperis affidavits

and declarations he filed in this case, and that the misconduct

is part of a pattern of filing false affidavits in other cases.

The egregiousness of this conduct warrants the extreme sanction

of dismissal with prejudice. I therefore grant the defendants'

request.

FINDINGS OF FACT

The State has proved the following facts by a preponderance

of the evidence:

1. Giordano filed two pro se civil rights complaints (Civil

Nos. 92-522 and 92-526) on or about October 8, 1992. These complaints were later consolidated and became the present action.

2. Giordano filed a motion to proceed in forma pauperis and

a supporting affidavit and financial declaration in each case.

3. Giordano executed his affidavit in case no. 92-526 on

September 25, 1992. He executed his affidavit in case no. 92-522

and both financial declarations on October 2, 1992.

4. The affidavits and declarations Giordano filed in both

cases are substantially similar. In each, Giordano alleges that

he earned monthly wages of $30 and that he had less than $90 cash

on hand when the declarations were executed. Both declarations

also state "none" in response to questions seeking information

about savings and checking accounts.

5. When Giordano executed and filed the affidavits and

declarations, he had approximately $2,850 in a savings account at

New Dartmouth Bank (Account No. 06278708), $73 in a checking

account at the same bank (Account No. 420471849) and

approximately $1,010 in a passbook savings account at Concord

Savings Bank.

6. Giordano was aware of the balances in his checking and

savings accounts when he executed and filed the affidavits and

declarations. Giordano claims that he believed that the

affidavits were accurate when executed and filed because (1) he 2 forgot about the checking accounts; and (2) he believed that he

had committed substantially all of the funds in the two savings

accounts to an attorney who had agreed to represent him on one of

his civil rights claims. I specifically reject this claim.

7. Giordano is an intelligent and experienced pro se

litigator who has filed more than a dozen lawsuits. Thus, when

he prepared and filed his affidavits and declarations, he was

well aware of his duty to disclose his checking and savings

accounts.

8. Giordano's failure to disclose his substantial account

balances at New Dartmouth Bank and Concord Savings Bank was part

of a carefully conceived plan to willfully and in bad faith gain

in forma pauperis status. He knew that he would not be eligible

for such status if he disclosed his account balances.

9. Giordano's willfully incorrect statements were material

to the clerk's decision to accord him in forma pauperis status.

II. ANALYSIS

A . Giordano's Explanation Before explaining my rejection of Giordano's claim that he

did not willfully fail to disclose his checking and savings

accounts, I first describe his claim in greater detail.

3 Giordano contends that he was attempting to convince

Attorney David Bownes to represent him on one of his civil rights

claims. According to Giordano, Bownes told him that he would

represent him if he could come up with a $5,000 fee advance.

Although Giordano didn't have $5,000, he claims that he decided

in late September 19 92 to send Attorney Bownes as much money as

he could in an effort to convince Bownes to take his case.

Because Giordano was incarcerated, he did not have direct

access to his bank accounts. However, he was able to access his New Dartmouth account by instructing the bank in writing to debit

his account and write checks on his behalf. In order to access

his passbook account at Concord Savings Bank, Giordano had to

instruct the prison's treasury department to send his passbook to

someone else who would then present the passbook at the bank with

a signed withdrawal slip. Thus, in order to implement his plan,

Giordano claims that he prepared the paperwork necessary to have $2,850 withdrawn from his New Dartmouth account and $975

withdrawn from his Concord Savings Bank account on or about

September 29, 1992. He then claims that he sent the paperwork to

the prison treasury department with a request that his Concord Savings Bank passbook be sent with the paperwork to New Dartmouth

Bank. Giordano further claims that his paperwork instructed New 4 Dartmouth Bank to prepare a $2,850 check and send the check, the

Concord Savings Bank passbook, and a $975 withdrawal slip to

Attorney Bownes. Since these transactions would have

substantially depleted his savings accounts by October 2, 1992,

Giordano claims he did not knowingly misrepresent his financial

condition when he failed to disclose these accounts. He explains

his failure to list his New Dartmouth checking account by

claiming that he simply forgot about it.

I reject Giordano's explanation for several reasons. First,

Giordano admits that he never fully executed his alleged plan.

Indeed, since Giordano's Concord Savings Bank passbook never left

the prison treasury department, the plan never got beyond its

first crucial step. While it is theoretically possible that

prison officials either lost the paperwork or disregarded

Giordano's instructions, these explanations are implausible.

Although Giordano produced copies of the letters he allegedly

sent to New Dartmouth and Attorney Bownes to implement his plan,

these letters are entitled to little weight because they could

easily have been produced after the fact. More telling is

Giordano's inability to produce his copy of the request slip he

allegedly sent to prison officials, instructing them to send his Concord Savings Bank passbook to New Dartmouth Bank. Since

5 Giordano admits that he has several boxes of records concerning

his interactions with prison officials, his inability to produce

his copy of the request slip casts doubt upon the accuracy of his testimony.

Second, after allegedly learning that Attorney Bownes had not received either the New Dartmouth check or the Concord

Savings Bank passbook, Giordano did not behave like a person

whose plan had failed. Ordinarily, if an inmate learns that

prison officials failed to carry out his instructions, and that

his savings account passbook never reached its intended

destination, I would expect the inmate to be concerned enough to

complain to the prison officials who were supposed to carry out

his instructions. However, neither Giordano nor the prison

officials have produced any evidence establishing that he ever asked them to explain why his instructions were not carried out.

Third, even if Giordano's story were true, it does not

explain why, in his financial declarations, he stated "none" in

response to questions concerning checking and savings accounts.

Giordano is an intelligent person who would have been aware that

he still had open savings accounts at New Dartmouth and Concord

Savings Bank, even if his alleged dealings with Attorney Bownes

had come to fruition. If Giordano believed that these account

6 balances were minimal, he could have identified them on his

declarations in the same way he disclosed the minimal balance in

his prison account. His failure to do so is more consistent with

the actions of a person who is deliberately concealing

substantial account balances than a person who fails to disclose

accounts with minimal balances because he believes that the

information is insignificant.

Fourth, I cannot accept Giordano's claim that he forgot

about the $73 in his checking account. For a person who claims

in a financial affidavit that he earns $30 per month and has less

than $90 in his prison account, $73 is a considerable sum. It

would be hard to overlook. Moreover, the $73 checking account

balance is clearly reflected in the bank statements Giordano

admits that he periodically received at the prison.

Finally, by demonstrating that he filed materially false

financial declarations in state court cases on November 13 and

19, 1992, the defendants established that Giordano followed a

pattern of preparing and filing false financial affidavits in

other cases. Since Giordano had no plausible explanation for the

false statements contained in these declarations, his overall

conduct suggests that his false filings in the present case were

part of a larger plan to conceal his assets and improperly obtain 7 the benefits of in forma pauperis status in a number of cases. In summary, after considering Giordano's testimony in light

of the surrounding circumstances, I conclude that his explanation

is false and that it was prompted by a willful effort to conceal

the fraudulent nature of the affidavits and declarations that he

had previously filed. B. The Sanction

(d) authorizes a court to dismiss a case in

which the plaintiff has gained in forma pauperis status by filing

a false poverty affidavit. Although the First Circuit Court of

Appeals has not determined when a false filing may result in

dismissal with prejudice, every other circuit that has considered

the issue has concluded that a court may dismiss a complaint with

prejudice when the filing was willful and in bad faith. Matthews v. Gaither,

(11th Cir. 1990); Romesburg v.

Trickev,

(8th Cir. 1990); Thompson v. Carlson.

(6th Cir. 1983); Harris v. Cuvier.

(3rd Cir. 1981).

Admittedly, dismissal with prejudice is an extremely harsh

sanction that should be reserved for truly extraordinary cases.

See Estate of Solis-Rivera v. United States,

(1st

Cir. 1993). This, however, is one such case. I have already

8 noted that Giordano willfully provided materially false

statements in his in forma pauperis affidavits and declarations.

He then compounded this misconduct by offering willfully false

testimony in an effort to cover up his fraudulent statements. In

view of Giordano's outrageous conduct and the fact that the

misconduct is part of a pattern of filing false in forma pauperis

affidavits in other cases, I conclude that dismissal with

prejudice is the only appropriate means of protecting the court's

processes from this type of abuse.

Il l . CONCLUSION

For the above-stated reasons, the defendant's motion to

dismiss (document no. 24) is granted and the case is dismissed

with prejudice. The clerk's office shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge August 5, 19 94 cc: Martin Bender, Esq. William McCallum, Esq.

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