Waters v. Clayton

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DAVID O’CONEL WATERS, III,
Plaintiff,
v.
STAN CLAYTON,
Defendant.
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No. 2:25-cv-0095-MTS
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff David O’Conel Waters, III’s Application
to Proceed in District Court without Prepaying Fees or Costs. Doc. [3]; see also 28 U.S.C.
§ 1915(a)(1). The Court will deny Plaintiff’s Motion and require him to prepay the entire
$405 filing fee no later than Friday, March 20, 2026, or the Court will dismiss his action.
*
Along with his Application to Proceed in District Court without Prepaying Fees or
Costs, Plaintiff submitted a certified copy of his institutional trust fund account statement.
Doc. [4]; see also 28 U.S.C. § 1915(a)(2). 	The certified account statement he submitted
shows that he blatantly lied on his Application, which he signed “under penalty of perjury.”
Doc. [3] at 2; see also 28 U.S.C. § 1621 (punishing perjury with a fine and imprisonment
of up to five years). 	Plaintiff’s Application states that he has received no wages and no
income from gifts or any other sources in the preceding twelve months. 	Doc. [3]. 	His
certified account statement tells a different story. It shows that Plaintiff received $725.00
over the six-month period that his account statement covers. Doc. [4]. He received both
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regular payroll deposits from his institution and frequent outside deposits from no less than
four individuals. Id. Yet Plaintiff told the Court that he had received nothing over the last
twelve months.
Proceeding in forma pauperis in a civil matter is a privilege, not a right. 	See
Williams v. McKenzie, 834 F.2d 152, 154 (8th Cir. 1987); accord Allen v. Briggs, 331 F.
App’x 603, 604 (10th Cir. 2009) (Gorsuch, J.). 	And a district court has discretion to
dismiss an action with prejudice where the plaintiff has in bad faith filed a false affidavit
of poverty. 	See Romesburg v. Trickey, 908 F.2d 258, 260 (8th Cir. 1990) (affirming
dismissal with prejudice where plaintiff submitted false financial affidavit); accord
Donelson v. Tanner, 768 F. App’x 573, 575 (7th Cir. 2019) (unsigned order) (joined by
Barrett, J.) (affirming dismissal with prejudice where pro se prisoner materially lied in IFP
application about financial status and litigation history). 	Indeed, Plaintiff’s Application
itself warned that “a false statement may result in a dismissal of [his] claims.” Doc. [3] at
2.
While Plaintiff’s conduct here could warrant dismissal with prejudice, the Court
recognizes that such a dismissal, it has been said, is a harsh sanction that “should be
exercised sparingly.” 	Romesburg, 908 F.2d at 260. 	But see Thomas v. Gen. Motors
Acceptance Corp., 288 F.3d 305, 306–07 (7th Cir. 2002) (Posner, J.) (noting dismissal with
prejudice may be “the only feasible sanction” where plaintiff lied on his application to
proceed in forma pauperis, which was “perjury designed to defraud the government”).
Instead of dismissing this action with prejudice, the Court will deny Plaintiff the privilege
of proceeding in forma pauperis. 	See McGee v. Berkeley Police Dep’t, 4:25-cv-0977-
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MTS, 2025 WL 2467715, at *1 (E.D. Mo. Aug. 27, 2025). Besides forfeiting the privilege
via his misrepresentations surrounding his finances, his account statement shows that he
has regular deposits into his account that are sufficient to prepay the filing fee in this
matter.* See Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998) (per curiam) (explaining
that the “only issue” in determining whether a prisoner may proceed in forma pauperis is
deciding whether the prisoner must prepay “the entire filing fee” now or pay it “in
installments over a period of time”).
Accordingly,
IT 	IS 	HEREBY 	ORDERED that 	Plaintiff 	David 	O’Conel 	Waters, 	III’s
Application to Proceed in District Court without Prepaying Fees or Costs, Doc. [3],
is DENIED. No later than Friday, March 20, 2026, Plaintiff shall prepay the $405 filing
fee in full. 	Failure to do so will result in the dismissal of this action without further
notice.
Dated this 3rd day of February 2026.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
* The fact that Plaintiff chooses to quickly spend much of the money deposited into his account is
of no moment. “Prisoners may not intentionally deplete their trust accounts just to avoid paying
filing fees.” McCormack v. Missouri Dep’t of Corr., 2:25-cv-0046-MTS, 2025 WL 2336856, at
*1, n.* (E.D. Mo. Aug. 13, 2025); accord Collier v. Chatham Cnty. Superior Ct., 4:24-cv-0013-
RSB-CLR, 2024 WL 6843547, at *1 (S.D. Ga. Jan. 17, 2024) (collecting cases noting same).
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