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
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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
28 U.S.C. § 1915(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, 902 F.2d 877, 880 (11th Cir. 1990); Romesburg v.
Trickev, 908 F.2d 258, 260 (8th Cir. 1990); Thompson v. Carlson.
705 F.2d 868, 869 (6th Cir. 1983); Harris v. Cuvier. 664 F.2d
388, 390 (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, 993 F.2d 1, 2-3 (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.