CACD Federal MTD — IFP Bad-Faith Dismissal (§ 1915)

Federal courts have a statutory duty to dismiss in forma pauperis (IFP) cases when the plaintiff's poverty allegations are untrue. 28 U.S.C. § 1915(e)(2)(A) ("the court shall dismiss the case at any time if the court determines that . . . the allegation of poverty is untrue"). The Ninth Circuit reads bad faith into the statute as a substantive requirement, but where bad faith is found, dismissal can be with prejudice and accompanied by sanctions.

Bad-faith requirement

Dismissal under § 1915(e)(2)(A) requires a finding of bad faith. Escobedo v. Applebee's, 787 F.3d 1226, 1234 n.8 (9th Cir. 2015). Bad faith exists where there is "deliberate concealment of income in order to gain access to a court without prepayment of filing fees." Vann v. Commissioner of N.Y. City Department of Correction, 496 F. App'x 113, 115 (2d Cir. 2012). Inadvertent omissions do not qualify.

Indicia of bad faith

CACD orders apply a three-factor pattern when assessing bad faith:

1. Litigation experience. Plaintiffs with substantial prior litigation in the District are presumed to know the IFP rules. Serial pro se plaintiffs cannot rely on inexperience to excuse misrepresentations.

2. Pattern of multiple misrepresentations. "[O]ne omission, in isolation, may be inadvertent." But multiple misrepresentations of different and material facts (e.g., settlement income from prior suits, unemployment benefits, contract income) constitute a pattern "supporting an inference of bad faith."

3. Continued failure to correct the record. Despite notice and admonitions, the plaintiff has not corrected the misrepresentations — including failing to address the § 1915(e)(2)(A) argument in opposition. Failure to oppose is itself a concession. Stichting Pensioenfonds ABP v. Countrywide Financial Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011).

With-prejudice authority

Where bad faith is found, dismissal "may be with prejudice." Steshenko v. Gayrard, 2015 WL 1503651 (N.D. Cal. 2015). With-prejudice dismissal is appropriate to deter future misconduct in cases of pattern misrepresentations.

CACD-distinctive features

• The CV-60 IFP form. CACD uses a specific Application to Proceed In Forma Pauperis form (CV-60) that asks separately about each income category in the past 12 months. Misrepresentations on the CV-60 form supply the textual record for the bad-faith finding.
• Cross-judge coordination via judicial notice. Where serial plaintiffs misbehave, CACD judges actively take judicial notice of each other's prior dismissals on the same grounds. Fed. R. Evid. 201(b). The judicial-notice mechanism turns prior misrepresentations in unrelated cases into present bad-faith evidence.
• Sua sponte sanctions OSC. A distinctive Wright II move: pair the dismissal with an Order to Show Cause re sanctions equal to the filing fee ($405). Available authority:
  • Inherent authority. Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001); United States v. Stoneberger, 805 F.2d 1391 (9th Cir. 1986); Roadway Express, Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) (requires specific bad-faith finding).
  • Rule 11(b)(1) and (b)(3). Filings "not . . . presented for any improper purpose" with factual contentions having "evidentiary support." Pro se litigants are subject to Rule 11. Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir. 1996).

Reach the dispositive ground first

Where a defendant moves on § 1915(e)(2)(A) AND Rule 12(c) merits, the court typically reaches only the IFP-screening ground. The substantive merits remain undecided.

How CACD applies it (corpus examples)

• 456067797 (Cash v. Resurgent Capital Services — Wright II): granted with prejudice under § 1915(e)(2)(A); plaintiff had filed 25 actions in three years, with at least four prior CACD dismissals for the same defect across multiple judges; CV-60 form checked "No" to every income category despite settlement income and unemployment benefits; pattern of misrepresentations + failure to correct the record + failure to oppose the motion in briefing all supported the bad-faith finding; OSC re $405 sanctions issued under inherent authority and Rule 11; court did not reach the FCRA/FDCPA Rule 12(c) merits.

If you're the moving party (defendant)

• Pull the plaintiff's full litigation history within the District. Prior dismissals on the same IFP defect are the load-bearing evidence.
• Compare the CV-60 form responses to publicly available records: settlement filings, employment records, unemployment-benefits disclosures.
• Request judicial notice of prior CACD orders against the same plaintiff under Fed. R. Evid. 201(b).
• Move under § 1915(e)(2)(A) first; the merits of the underlying claims are typically not reached. Consider also requesting a sua sponte sanctions OSC.
• Document the failure to correct the record — prior court admonitions, missed opportunities to amend.

If you're the opposing party (IFP plaintiff)

• Address the § 1915(e)(2)(A) argument squarely in opposition. Failure to respond is a concession under Stichting Pensioenfonds.
• Disclose every income category on the CV-60 form, including settlements, unemployment benefits, and contract income.
• If a prior misrepresentation has occurred, correct the record affirmatively before opposition is due. Continued silence is a load-bearing bad-faith indicator.
• For inadvertent omissions, plead specific facts showing inadvertence (e.g., misunderstanding of categories, late receipt of records). Generic "oversight" is unlikely to defeat the pattern-based bad-faith finding.