United States District Court, M.D. Tennessee, Nashville
REPORT AND RECOMMENDATION
BROWN United States Magistrate Judge
pending is the sole Defendant Renal Care Group, Inc.'s
motion to dismiss(Docket Entry 17) on the grounds that the
Plaintiff filed a false application to proceed in forma
reasons stated below, the Magistrate Judge recommends that
the motion be denied; however, based on the pleadings which
show that the Plaintiff is presently employed and has been
since July 4, 2016, that the granting of the IFP (Docket
Entry 7) be revoked and the Plaintiff be allowed 14 days in
which to pay the filing fee and to reimburse the United
States Marshals Service the cost of the service of process.
Plaintiff, proceeding IFP with the assistance of an attorney,
alleged violations of Title VII of the Civil Rights Act of
1964, Title I and V of the Americans With Disabilities Act of
1990, and Title I of the Civil Rights Act of 1991. In the
application to proceed IFP (Docket Entry 2 dated 8-27-16) the
Plaintiff stated that her average monthly income amount
during the past 12 months was zero. At the bottom there was
an asterisk stating “Has not worked since August
2015.” She also stated that she did not expect any
income for the succeeding month. She did state she had worked
for the Defendant from September 2012 to August 2015 and had
a gross monthly pay of $1, 900.
response (Docket Entry 22) the Plaintiff argues that she
presented an accurate payment average income and that there
was “nominal income for several weeks outside the
10-month period.” She further point out that the
application was Dated: May 27, and because of Plaintiff's
counsel's busy scheduling and being out of the country
for a couple of weeks he was somewhat delayed in filing the
actual lawsuit until July 28, 2016. In an affidavit by
Plaintiff's counsel he took responsibility for not
updating her IFP application to reflect that she was
re-employed by the Defendant.
Defendant has filed a reply (Docket Entry 27) repeating their
argument that the Plaintiff gave inaccurate information about
her income over the prior 12 months and failed to report that
she was working for the Defendant.
Docket Entry 18-1 it appears that the Plaintiff's gross
income for a two-week period is $1, 148.75 with a net income
of $915.39. The matter is now ready for a decision.
Defendants are correct that 28 U.S.C. § 1915(e)(2)
provides that the court shall dismiss the case at any time if
the court determines that . . . the allegations of poverty is
untrue. There is clear Sixth Circuit authority to dismiss a
case where the application is clearly false. Thompson v.
Carlson, 705 F.2d 868 (6thCir. 1983);
Steelman v. Mason, 843 F.2d 1392 (6th
other hand, if the application is found to be incomplete or
inaccurate but not deliberately false, there is authority to
allow the Plaintiff to reapply to file an amended IFP, which
can then be ruled on. The amended IFP can either result in
the denial of IFP status and the requirement to pay the
filing fee and costs of service or to grant the new
application and proceed. See Report and
Recommendation, Richardson v. Russell, 2016 WL
2939909 (April 25, 2016) and the District Judge's order
affirming the report and recommendation in Richardson v.
Russell, 2016 WL 4264862 (Aug. 12, 2016).
Magistrate Judge, I originally approved the IFP (Docket Entry
7). I have now reviewed it again in light of the present
pleadings. I do not find that the application was
deliberately false. Although the Plaintiff gave an incorrect
average monthly income during the past 12 months when she
stated that it was zero, she did qualify it with the
statement that she had not worked since August 2015. The
Plaintiff certainly should have applied an average. However,
she did alert the Court that she had not worked since August
2015. In retrospect, I should have requested a clarification
of this. It would appear that if she made the same salary as
she made upon returning to work, she should have reported a
12-month average monthly income of slightly in excess of
application is dated May 27, 2016, and at that time the
Plaintiff was not working. The application should have been
updated as of the date of the filing of the complaint.
However, this appears to be the error of Plaintiff's
counsel and not the Plaintiff since she would not ...