Robert Balthrope, II v. Sacramento County Department o, et al, No. 09-17213 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ROBERT BENNING BALTHROPE, II, Plaintiff - Appellant, No. 09-17213 D.C. No. 2:09-cv-01874-FCDKJM v. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES; et al., MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding Submitted September 22, 2010 ** Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges. The district court did not abuse its discretion by applying judicial estoppel because Robert Benning Balthrope, II, ( Balthrope ) attempted to pursue legal claims that he did not disclose during his bankruptcy proceedings. See Hamilton v. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). State Farm Fire & Cas. Co., 270 F.3d 778, 784 (9th Cir. 2001) (applying judicial estoppel where debtor failed to disclose a pending claim as an asset in a bankruptcy proceeding). Contrary to Balthrope s contention, he was required to amend his bankruptcy petition to include the post-petition claim because his Chapter 13 bankruptcy proceeding had not been closed, dismissed, or converted, and the property of the bankruptcy estate had not revested in him. See 11 U.S.C. § 1306(a)(1); see also Hamilton, 270 F.3d at 784 ( Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset. ) (citation omitted). The district court did not abuse its discretion by denying Balthrope s motion to proceed in forma pauperis after considering his income and assets as set forth in his bankruptcy action. See 28 U.S.C. § 1915(e)(2)(A) (case must be dismissed if the allegation of poverty is untrue ); O Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). Balthrope s remaining contentions are unpersuasive. AFFIRMED. 2 09-17213
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