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Murphy v. Clinical Solutions, LLC

United States District Court, M.D. Tennessee, Nashville Division

November 20, 2019

VERNEKA MURPHY, Plaintiff,
v.
CLINICAL SOLUTIONS, LLC, Defendant.

          Trauger Judge.

          REPORT AND RECOMMENDATION

          Jeffery S. Frensley United States Magistrate Judge.

         This 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.

         I. INTRODUCTION

         Plaintiff 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 claims.

Docket No. 2, p. 1.

         One 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. Id.

         Defendant 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).

         II. LAW AND ANALYSIS

         Defendant 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.

         Plaintiff 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.[1] 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.

         Defendant 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 calculation. Id.

         An 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 ...


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