United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
Jeffery S. Frensley United States Magistrate Judge.
matter is before the Court upon Defendant's Motion to
Dismiss Plaintiff's Complaint with Prejudice. Docket No.
10. Defendant has additionally filed a supporting Memorandum
of Law. Docket No. 11. Plaintiff has filed a “Rebuttal
of Defendant's Motion to Dismiss Plaintiff's
Complaint with Prejudice”, (Docket No. 20) to which
Defendant has replied (Docket No. 22). For the reasons set
forth herein, the undersigned recommends the Motion be
GRANTED in part, and DENIED in part.
filed this action pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et. Seq., and
“state law.” Docket No. 1, p. 1. Plaintiff
alleges that her employer, Clinical Solutions, LLC
(“Defendant”), subjected her to a hostile work
environment and fired her in retaliation for “engaging
in legally protected activity”. Id. at 3-4.
Plaintiff subsequently filed an Application for Leave to
Proceed In Forma Pauperis
(“application”). Docket No. 2. The application
states, in pertinent part:
I am a plaintiff or petitioner in this case and declare that
I am unable to pay the costs of these proceedings and that I
am entitled to the relief requested. I declare under penalty
of perjury that the information below is true and understand
that a false statement may result in a dismissal of my
Docket No. 2, p. 1.
portion of the application requires Plaintiff to estimate her
average monthly income from the past 12 months. Id.
The instructions state Plaintiff should “use gross
amounts, that is, amounts before any deductions for taxes or
otherwise.” Id. (emphasis added). Plaintiff
estimated that her average monthly income over the past 12
months was between $1600-$3200. Id. The application
was signed by Plaintiff and dated November 13, 2018.
alleges that Plaintiff intentionally misrepresented her
financial status on her application and subsequently filed a
Motion to Dismiss Plaintiff's Complaint with Prejudice
Pursuant to 28 U.S.C. § 1915(e)(2). Docket No. 10.
Defendant additionally filed a supporting Memorandum of Law.
Docket No. 11. Plaintiff has filed a response (Docket No.
20), to which Defendant has replied (Docket No. 22).
LAW AND ANALYSIS
argues that Plaintiff's Complaint should be dismissed
because she provided false information about her average
monthly income on her application to proceed in forma
pauperis. Docket No. 11, p. 5. Defendant specifically
argues that Plaintiff's income from Affordable Pharmacy
yields the gross amount of approximately $4, 166.63 per month
which is a drastic difference from the estimate of
$1600-$3200 per month that Plaintiff reported. Id.
Defendant further contends that Plaintiff is fully capable of
completing an unambiguous form given her educational and
occupational background. Id. at 6. Defendant
maintains that the court should dismiss Plaintiff's
complaint with prejudice because Plaintiff intentionally and
in bad faith misrepresented her financial status.
Id. at 5.
argues that she did not misrepresent her financial status on
her application. Docket No. 20, p. 5. Plaintiff contends that
at the time she was filling out her application she did not
have her 1099 form on hand and lacked the requisite resources
to find her proper average monthly income. Id. at 2.
Plaintiff contends that she calculated her average monthly
income by taking her yearly after-tax income of $38, 999.61
minus $600 for a health insurance penalty and dividing that
number by 12. Id. Using the math demonstrated
above, Plaintiff said she calculated her average monthly
income to be $3, 199.97, which is within the range of $1,
600-$3, 200 that she provided. Id. Plaintiff further
argues that Defendant falsely stated that she continues to
average $4, 000 per month from Affordable Pharmacy in the
current year. Id. at 3. Plaintiff contends that this
is incorrect because she could not work for approximately two
months due to being in and out of the hospital for treatment
of a life-threatening blood clot. Id.
replies that there is “no legitimate dispute that
Plaintiff provided false information on her
Application.” Docket No. 22, p. 1. Defendant argues
that it is difficult to see how someone with internet access
would not have the capability to access her monthly income.
Id. at 2. Defendant asserts that, at a minimum,
Plaintiff did not take seriously the information she was
being asked to certify under oath. Id. Defendant
contends that Plaintiff's second argument, that the
information she provided was accurate, fails. Id.
Defendant argues that Plaintiff engaged in
“mathematical gymnastics” to reach an average
monthly income within the $1, 600-$3, 200 range. Id.
Defendant further argues that the application specifically
stated that Plaintiff should use gross amounts in her
indigent Plaintiff may avoid the payment of filing fees by
filing an affidavit of indigency under 28 U.S.C. §
1915(a). However, “the Court shall dismiss the case at
any time if the Court determines that - (A) the allegation of
poverty is untrue[.]” 28 U.S.C. § 1915(e)(2)(A).
Prior to the Act's amendment, the Court had discretion to
dismiss a case if it determined that an allegation of poverty
was untrue; however, the current version includes the
mandatory “shall dismiss” language. See
Thomas v. General Motors Acceptance Corp., 288 F.3d 305,
306 (7th Cir. 2002)(“Because the allegation
of poverty was false, the suit had to be dismissed; the judge
had no choice.”) While dismissal is mandatory when the
allegations of poverty are untrue, “[n]ot every
inaccuracy in an affidavit of poverty, no matter how minimal,
should be construed as a false allegation of poverty so as to
cause loss of in forma pauperis eligibility and
dismissal of the complaint.” Robinson v. Koch Foods
of Alabama, 2014 WL 4472609, at *2 (M. D. Ala. Sept. 1,
2014)(quoting Camp v. Oliver, 798 F.2d 434, 438 n.
3(11th Cir. 1985)). If the allegation of poverty
is untrue, the Court must determine whether to dismiss the
case with or without ...