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Dismissal with Prejudice Proper For Financial Misrepresentation

On July 3, 1990, the U.S. Eighth Circuit Court of Appeals held that
dismissal with prejudice was a proper sanction for filing a false affidavit
of poverty.

Plaintiff Earl Romesburg, a Missouri state prisoner, filed suit against
prison officials for being deliberately indifferent to his medical needs
with regard to injuries sustained, from a fall, and constipation. Romesburg
moved for in forma pauperis (IFP) status, and the U.S. District Court for
the District of Missouri granted his motion.

One week before trial was set to begin, prison officials filed a motion to
revoke Romesburg's IFP status and dismiss his complaint. Romesburg had
stated in his affidavit of poverty, filed in support of his request for IFP
status, that he owned no property. In support of their motion, however,
prison officials submitted copies of a title search and warranty deed
indicating Romesburg co-owned with his wife a house and at least four
apparently unencumbered lots in Missouri.

Romesburg argued the real estate had no bearing on his ability to pay for
an attorney because it was worth only $5,000 and his elderly wife lived in
the house on the property. He further stated that the affidavit of poverty
was completed pursuant to the advice of a jailhouse lawyer who told, him
real estate ownership was not relevant to IFP status. The district court
nevertheless found Romesburg's omission to be a conscious, deliberate, and
intentional act and rejected his reasons for the inaccuracies, stating
that he was not entitled to substitute his judgment for that of the Court
regarding [IFP] eligibility....

In an issue of first impression in the circuit, the district court
dismissed Romesburg's case with prejudice pursuant to 28 U.S.C. § 1915(d),
which authorizes a district court to "dismiss [a] case if the allegation
of poverty is untrue, though it does not specify whether the dismissal is
to be with or without prejudice." The district court purportedly recognized
that dismissal with prejudice was a drastic sanction but argued that the
alternative of allowing Romesburg to proceed without a court-appointed
attorney would not be an adequate deterrent.

Aligning itself with the Third, Sixth, and Eleventh Circuits, the Eighth
Circuit affirmed holding that a district court has the discretion to
dismiss a case with prejudice where a plaintiff has in bad faith filed a
false affidavit of poverty. In the instant case, the appellate court held
there was sufficient evidence of bad faith to support the District Court's
decision. See: Romesburg v. Trickey, 908 F.2d 258 (8th Cir. 1990).

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Related legal case

Romesburg v. Trickey

Romesburg v. Trickey, 908 F.2d 258 (8th Cir. 07/03/1990)

[1] UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT


[2] No. 90-1284EM


[3] 908 F.2d 258


[4] filed: July 3, 1990.


[5] EARL ROMESBURG, APPELLANT,
v.
MYRNA TRICKEY; DR. ATURO TACA; AND JUDY FANNING, APPELLEES


[6] On Appeal from the United States District Court for the Eastern District of Missouri.


[7] COUNSEL


[8] Counsel who represented the appellant was pro se.


[9] Counsel who represented the appellee was Joseph M. Hepworth, St. Louis, Missouri.


[10] Arnold, John R. Gibson, and Wollman, Circuit Judges.


[11] Author: Arnold


[12] ARNOLD, Circuit Judge.


[13] Earl Romesburg, a Missouri inmate, appeals the District Court's*fn1 order dismissing his 42 U.S.C. ? 1983 action with prejudice as a sanction for his intentional misrepresentation of his financial status on his affidavit of poverty, filed in order to proceed in forma pauperis. We affirm.


[14] Romesburg's motion to proceed in forma pauperis was granted by a magistrate, and his complaint was filed in the District Court. Romesburg requested appointment of counsel, which the District Court granted. An amended complaint was filed by counsel alleging that defendant prison officials displayed deliberate indifference to Romesburg's serious medical needs (injuries from a fall and constipation).


[15] The parties engaged in a significant amount of discovery. A week prior to trial defendants filed a motion to dismiss the complaint and to revoke Romesburg's in forma pauperis status. Defendants alleged that Romesburg had misrepresented his assets in his affidavit seeking in forma pauperis status by stating that he owned no real estate. Attached to defendants' motion were copies of a warranty deed and title search indicating that Romesburg owned (with his wife) at least four apparently unencumbered lots in Hickory County, Missouri. Romesburg responded by stating that his ownership of the property did not alter his ability to pay an attorney to prosecute his action, because his elderly wife lived in the house on the property, and the property was worth only $5,000. He also argued that he completed the affidavit with the advice of a "jailhouse lawyer" who told him that real estate ownership was not relevant to in forma pauperis status.


[16] The District Court found Romesburg's omission of his real estate holdings to have been a conscious, deliberate, and intentional act. The Court rejected Romesburg's reasons for the inaccurate affidavit, stating that Romesburg was not entitled to substitute his judgment for that of the Court regarding in forma pauperis eligibility, and that he was not excused by his receipt of poor advice, inconsistent on its face with the Court's form of affidavit. The District Court recognized that dismissal with prejudice was a severe sanction, but stated that the alternative of allowing Romesburg to proceed without a court-appointed attorney would not be an adequate deterrent.


[17] As the District Court recognized, this is apparently a case of first impression for this Circuit. 28 U.S.C. ? 1915(d) authorizes a court to "dismiss [a] case if the allegation of poverty is untrue," but it does not specify whether the dismissal is to be with or without prejudice. Although dismissal with prejudice is a drastic sanction which should be exercised sparingly, Brown v. Frey, 806 F.2d 801, 803 (8th Cir. 1986), we agree with the Third, Sixth, and Eleventh Circuits that district court has the discretion to dismiss a case with prejudice where a plaintiff has in bad faith filed a false affidavit of poverty. Harris v. Cuyler, 664 F.2d 388, 389-91 (3d Cir. 1981); Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983) (per curiam); Dawson v. Lennon, 797 F.2d 934, 935 (11th Cir. 1986) (per curiam).*fn2 Here, there is sufficient evidence of bad faith to support the District Court's decision. Romesburg's motion for appointment of counsel on appeal is denied.


[18] Accordingly, the judgment of the District Court is affirmed.



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Opinion Footnotes

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[19] *fn1 The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri.


[20] *fn2 Two district courts in other circuits have chosen to follow Harris. See Richmond v. Housewright, 101 F.R.D. 758, 759 (D. Nev. 1984); Ferguson-Bey v. Lever Bros. Co., 586 F. Supp. 1435, 1441-42 (D. Md. 1984).