form a proper us application and method very end of that application to hand typed in a request to have the entire filing fee taken out of his release account under wisconsin law at the time in wisconsin law and now he was entitle to use those release funds to pay the filing fee to proceed with his litigation the trial court in dismissing this action for improper or false statements on that i f b application made a finding that mr kennedy was attempting to avoid paying the fee that finding was clear error mr kennedy asked it in the eye of p application and followed up with a specific letter to the clerk of courts in closing his prison account statements and in that letter handwritten said directed poverty and whether i asked you know list all the funds he said proximately ten dollars that was incorrect your honor the statement that he was in poverty and he believed he did not have sufficient assets to pursue his litigation was proved that was not false his estimate of ten dollars as i was not false was not fools he couldn't pay the fees and course not that statement on the form was in fact this wasn't a handwritten statement by him this is part of the form but that was not true he did have the money to pay it which is why he asked it on page four and they then have just ten dollars in this  dismiss the case at any time of the court determines that the allocation of poverty is untrue correct and what that standard means is when you take into account the assets that are not disclosed on the form and you add them to the assets that are disclosed looking at that correct picture is that individual in poverty or are they not in poverty that's what the east circuit held in the lead versus mcdonnell case and that's the correct application given the harshness of that sanction and when you take mr kennedy seven hundred thirty nine dollars and add one thousand four hundred thirty three dollars to it i contend and we have argued he remained in poverty to pursue a complicated medical malpractise and deliberate indifference case that was going to require at a minimum of several depositions x for testimony a lot of costs and a lot of pursuit and the eye of p getting that status is not just being excused from the feet and mind you prisoners aren't excuse anymore they just pay over time but being granted i a piece status allows a person to request the appointment of counsel to represent them and allows them to be excused from paying certain costs excuses him from having to post bond when one is necessary  o it provides what the u s supreme court said in rolland the series of benefits given that series of benefits when one stacks up mr kennedy's and you know what all it is what is the justification for is having said he had only ten dollars his own justification is at the time he did not know how much was in the child support account and that was his asked well you could say it is no but he said ten dollars he said in his deposition that at the time he didn't know how much was in there and that was his fair estimate and the money was not in the prison account the money all there ever was right he could have done that i agree that's conceded it was a possibility and he did and the question is for the failure to do that in this context where it adds up to two thousand one hundred seventy two dollars does that require dismissal does the the mr judge examined some other possible sanctions that explain why he thought they would be adequate what do you think would have been an appropriate sanction in this case and why one of two sanctions i think a monetary fine would have been an appropriate sanction at the time mr kennedy may not have had the money to pay it but that sanction would travel with him the next press i think it said an appropriate precedent that when they all say ten dollars i don't know i don't know it's in like ten dollars fifty cents but if they were all saying ten dollars are making misstatements and the net some of the misstatement was to use their release account funds to pay the filing fee versus another count to pay the filing fee the harm to the system is not the same as in the thomas case where the individuals trying to avoid the fee entirely in lying to the court about receiving sixty thousand dollars from retirement account what the what the district court concluded at the end is what mr kennedy was trying to do was not to have to use those external funds that he was using to buy christmas presents for his kids and his mother right there after but rather use his release of confidence which was his money to pay the fee he wasn't trying to get out of the fee he was trying to pay the fee from one account rather than the other and i submit when dismissal with prejudice is the most severe sanction available so why did these say approximately ten dollars his testimony as that's what he believed that balance was at that time and i can't add to his testimony i can tell you what he said it was wrong the district court found it was a lie and even on that record given the entirety of the case and what that what that lie ended up being aimed at which is not to fraud in the system he wanted to pay the whole fee here or a separate letter to the clerk asking for it he filed a motion to get the money taken out of his account when it was simply a matter of trying to use some extra funds to buy presents for his kids and wanted to use his own funds to pay for his lawsuit and when you add all that assets together when he still was in poverty dismissal with prejudice was an inappropriate sanction in the normal civil world where i practice ordinarily dismissal with prejudice almost never happens it is not an ordinary sanction by any means it is the greatest sanction and here for this level where it had no impact on the litigation where he was asking unlike so many of these other person a litigant c was asking to pay the full fee dismissible creditors was a step too far there was something less that could be done and the district court judge hamilton by the way did also examine the strength of mr kennedy's case in there i think he clearly erred in saying it was not a strong case because in developing the case through depositions we had a physician from the university of wisconsin medical school testify and this was not a hired expert this was just reading into chronology as to rick linnik that dr adler was negligent when he didn't examine the ultrasound when it came back in june instead put it in a drawer until september dr davis said that caused harm the tumors grew by fifty percent during the time when he got the ultrasound results in the time you pull them out of his drawer to look at them and ask you about some of the troubles me in this room the the district judge  invited a kind of informal evaluation of the case from a plane a small practice firm i did and is it correct that that firm had been directly adverse to mr kennedy who had represented the estate of and whose the victim who was killed in the accident that yes every time that analysis was done his firm was representing the state of the victim of his crime in suing mr kennedy that troubles me i am certain it was unknown to judge response i'm not certain whether it was known to mr attorney t c was in a different office of habit he's up in the green beriah on that case was going on in milwaukee so i i'm giving the benefit of the doubt there but in my  mind that tainted that assessment and beyond that that assessment to me has very little weight it was done early in the case based upon the pleadings and just limited selection of medical records and the ultimate conclusion was it's too expensive on the expert side for a private firm to take to carry the case because the damages wouldn't be great enough that was all the opinion was it wasn't that he had no case and hour later discovery i think firmly set us up for trial and for winning tr the first one is that when a district court finds that an allegation of poverty is untrue that finding goes to the ability to pay the filing fee and it's reviewed by this court for clear air the second point i want to make is just to reiterate that the district court did not abuse its discretion by dismissing with prejudice in this case where the court found that mr kennedy intentionally misrepresented his financial circumstances in a way that was meant to manipulate the system the district court here found that kennedy lied about his financial circumstances and as i have people to action and this is the finding that mandated dismissal under the u s code and which this court review is for clear air the allegation of poverty that we talk about a lot and that we're referring to a lot from our position is the allegation of poverty in the eye of people titian which was cited by this court just a few minutes ago and which says i declare under penalty of perjury that the following facts are true i am unable to prepay the fees and costs of this proceeding or give security because of my poverty the district court found that this was simply untrue and mandated dismissal and that is what is reviewed pre clear is our position kennedy claims that this lie doesn't matter to you that the lie doesn't matter because regardless of the fact that he lied about his financial circumstances on his eye of people titian he still was poor enough to kind of generally be impoverished in the sense general sense of the word but what this argument is really asking this court to do is to change the standard overview in these cases and to add a whole nother level of analysis that this court has not undertaken in the past what he really asked this court to expand the review so that even after a district court finds that an allegation of poverty is untrue and based upon a lie that the court should then go into an additional analysis on well what constitutes poverty is he still impoverished in the sense of the word and that not only exercising their discretion i would say than the discomfort noted it i wouldn't say it was a big consideration by i think it is noted in the decision will it's the kind of thing that would if i were a district judge might might affect the decision between with or without prejudice and let me just ask you i mean i'm troubled by the idea that the firm the judge asked for this advice was directly adverse to that the the letter was really drawn up because in the process of trying to find assistance from mr kennedy with his case but the district court did note it in its decision it's our position that it's not really the basis of the decision to dismiss with that with prejudice we were really to be troubled i don't think it would be inappropriate to consider it whether if it were the sole basis for a dismissal with prejudice it would be a it would be a different case but i i would be troubled by that but here i don't think it is at all the court goes into pretty thorough detail on why the court was so disturbed by mr kennedy's behavior and the court specifically found that not only did he lie on his petition but that he actually actively tried to hide this trust account and he belittled defense counsel in the process well while she was trying to uncover this account and that she really was or that mr kenny was really trying to manipulate the system to access a prescriptive account or the paragraph i'm looking at the bottom of page ten of all the top level of the district judges he apparently has no evidence that it resulted in any significant harm to him given these factors along with the fact the dismissals mandated under nine hundred fifteen the dismissal with prejudice is the only appropriate saying the plaintiffs actions  in sound to me like it's just a notation i would i hadn't read that i guess a little differently than you i thought the factor is there is kind of a concluding statement where he's talking about all the things that he just talked about for pages and e lawyers suggest an alternative sanction no it was i think the state asked for dismissal with prejudice based on kind of the extent of of manipulation that kind of went on throughout the process this case went on for a long time before it was kennedy's lawyer or kennedy for that matter suggest an alternative sense know that the second big point i want to make here is that that the allegation of poverty does not to some general sense of whether an individual is rich enough to pursue an complex litigation as kennedy's attorney suggests it's pacifically rates that are relates their ability to prepay their filing fees and that is consistent with the language of the actual allegation of poverty in the eye of people titian and this court's case law this court has consistently used a two step approach in this case not a three step approach kennedy's advocating three steps there's really just two one is it did the district court committee clear error by finding that that kennedy lied about his ability to pay a filing fee and the second question goes then directly to dismissal with or without prejudice because dismissal at that point is mandated so the second question then is did the district court abused its discretion in dismissing with prejudice and this is as i said this is consistent with the the code is consistent with the have language where there's actually an a specific allegation of poverty that we're talking about and it's consistent with the case law of this court in the circuit the second thing i want to talk about here this morning is the fact that the district court did have a good basis to dismiss with prejudice and that that decision was reasonable i understand the course concerned with the question on whether or not it was appropriate to can consider this letter from a private law firm but but the judge's decision in this case i would submit is very thorough and considers a lot of different facts in this case the judge made a lot of specific factual findings about the extent of the deception and the misrepresentations that kennedy made kind of trying to double down as the court say or hide certain facts from the from the defendant's attorney is throughout discovery in order to keep the trust fund hidden and the sense is that the district court was really disturbed by mr kennedy's behavior in this case and his his misrepresentations and he found them intentional and precedent from this court and other courts have held that it is appropriate to dismiss with prejudice where a litigant lies to the court and i think this is a pretty classic case of that i don't think i think the court accurately looked at alternatives and found that since since he filed this complaint kennedy has now used all his money in his accounts or distributed them so now if you were to refile this case he would probably get i have peace status and all the benefits that go with it so the court did not find it shows that a lot of it went to payments i can tell you specifically some payments to his mother payments as mr condit's attorney mentioned two legal fees it's my understanding that that the court was really trying to get assistance from mr kennedy i understand that it obviously didn't ultimately help him in the correct correct and i'm i'm trying to understand and believe me from the district judges perspective i understand why you might reach out for this kind of input particularly given pressure our court is putting on district judges particularly with respect to prisoner health care which is chronically lousy at least in the circuit but for example i was looking for example the special master rule which does have provisions for  disqualification and objectivity and so on so where would you fit it in and i don't have a good answer for you on that one ok this morning and i thank you but i don't think that it was the basis of the decision to mr o'neill rather annoyed burned for all my time originally saul be quick first i do believe in the briefing before the district court while i was appointed counsel for mr kennedy we did suggest lower sanctions other prejudice with with the statue of limitations had run by then you would have run on the malpractise claim it's a three year statute of limitations in wisconsin and at that point were three years out from the time at which mr kennedy was aware of the malpractise which happened in two thousand and eleven but there was another charge the other charge was deliberate indifference under section one thousand nine hundred three which borrows a six year statute from the state of wisconsin so you're suggesting that dismissal without prejudice would have been a sanction of sorts for this sort of eliminated there's no right because i am saying yes did you argue your if i recall your honor and i had was not looking over my briefs in the district court preparing if i recall i do believe i suggested alternative sanctions would be appropriate last then dismissal with prejudice like what as i said as i stand here i don't remember i don't recall if i gave a specific recommendation but the identified in the case law the questions are dismissal with prejudice dismissal without prejudice or other lesser fine such as other lesser sanction such as a fine also in quick rebuttal i disagree with the stated standards by the state with their position is that any misstatement application mandates dismissal on under one hundred fifteen feet too and i think that is incorrect i think the court has to follow up and find out whether with all assets considered the prisoner is or is not in poverty if they remain in power mandated dismissal then it becomes a discretionary call i believe the cord abused its discretion for all the reasons i stated thank you sonu were appointed when i was so we pa