Opinion
No. 02-CV-786A(F).
September 21, 2004
CHIACCHIA FLEMING, LLP, ANDREW P. FLEMING, ESQ., of Counsel, Buffalo, New York, Attorneys for Plaintiff.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER, LLP, JAMES D. DONATHAN, ESQ. And JACQUELINE PHIPPS POLITO, ESQ., of Counsel, Rochester, New York, Attorneys for Defendant.
REPORT and RECOMMENDATION
JURISDICTION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on January 30, 2003 for determination of all pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A), (B), and (C), including all dispositive and non-dispositive motions. It is presently before the court on the Defendant's motion, filed March 7, 2003, to dismiss the complaint on the grounds that Plaintiff's allegations of poverty in his motion to proceed in forma pauperis are false (Docket No. 9).
BACKGROUND and FACTS
Plaintiff, a current Du Pont employee, filed this action pro se on November 12, 2002 alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff alleges that he was harassed and retaliated against on the basis of his national origin after he filed a grievance against a supervisor (Docket No. 1). Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and received a right to sue letter on August 21, 2002.At the time he filed the complaint, Plaintiff filed a request to proceed in forma pauperis ("IFP") (Docket No. 2). Plaintiff stated that his gross monthly wages were $2,000 and, elsewhere on the application, he stated that his total gross monthly income was $2,500. The motion for IFP status was granted on November 14, 2002 (Docket No. 3).
Defendant filed an answer to the Complaint on January 24, 2003, denying any discriminatory conduct and asserting that Plaintiff had misrepresented his income in his motion for IFP status (Docket No. 5, ¶ 9). On March 7, 2003, Defendant moved to dismiss the Complaint on the basis of false allegations in the IFP motion (Docket No. 9). In support of the motion, Defendant offered an affidavit of Deborah A. Brauer, Superintendent of Employee Relations for Defendant, who stated that at the time of the filing of the IFP application, Plaintiff earned a weekly salary of $1,176.24. For the calendar year 2002, Plaintiff earned $53,509.76 (Docket No. 11, ¶ 4).
Plaintiff has now retained an attorney. In response to the motion for summary judgment, Plaintiff filed an affidavit in which he explained that he was unfamiliar with IFP status and completed the application at the suggestion of an employee in the office of the Clerk of the District Court for the Western District of New York (Docket No. 19, ¶ 2). He was confused about the meaning of the term "gross," and mistakenly recorded his "net" income on the application. Id., ¶ 3. Plaintiff stated that his errors were "not fraudulent or in bad faith" and were the result of "an honest misunderstanding of the terms. . . ." Id., ¶¶ 4-5.
Defendant filed a reply affidavit on May 19, 2003 (Docket No. 21). In the affidavit, Ms. Brauer stated that at the time of the filing of Plaintiff's IFP application, his gross monthly pay was $5,466.08 and his net monthly pay was $3,231.75. Id., ¶ 6. Ms. Brauer further stated that it was "abundantly clear that [Plaintiff] was not confused in filling out the application, but rather intentionally misrepresented his income to avoid payment of the appropriate filing fees." Id., ¶ 8.
Oral argument was deemed not necessary. For the reasons that follow, Defendant's motion to dismiss should be DENIED.
DISCUSSION
Title 28 U.S.C. § 1915 governs IFP proceedings. Section 1915(e)(2)(A) provides that the court shall dismiss the case at any time if it determines that "the allegation of poverty is untrue. . . ." Despite this mandatory language, dismissal is addressed to the discretion of the district court, and is a harsh remedy to be reserved for the most extreme cases. Hobbs v. County of Westchester, 2002 WL 868269, *1 (S.D.N.Y. May 3, 2002).
"Dismissal of a case with prejudice is appropriate when an applicant misrepresents her financial arrangements in bad faith to obtain IFP status." Cuoco v. United States Bureau of Prisons, 328 F. Supp.2d 463, 468 (S.D.N.Y. 2004). The question before the court is not the accuracy of every specific representation, but whether the applicant's allegation of poverty is untrue. Hobbs, 2002 WL 868269, at *1. An IFP application is sufficient if the applicant cannot pay the costs of litigation and still provide for his needs and those of his dependents. Id. A review of the caselaw reveals that dismissal of an action under § 1915(e)(2)(A) has been reserved for those egregious cases in which an IFP applicant deliberately concealed finances and property far in excess of the misstatement here. See, e.g., Cuoco, 329 F. Supp.2d at 468 (case dismissed where plaintiff, an experienced prison litigant, omitted $13,500 in court settlements and manipulated prison account system, demonstrating a "total disregard for the truth"); see also Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305 (7th Cir. 2002) (case dismissed where plaintiff failed to disclose retirement distribution of $73,000); Mathis v. New York Life Ins. Co., 133 F.3d 546 (7th Cir. 1998) (case dismissed where plaintiff, experienced in IFP system, failed to disclose home with $14,000 of equity); Bell v. Dobbs Int'l Serv., 6 F.Supp.2d 863, 865 (E.D.Mo. 1998) (plaintiff failed to disclose four properties with value in excess of over $150,000 — court found omitted information to be of "significant magnitude").
Here, Plaintiff understated his monthly income on the IFP application, although he contends it was an honest mistake. Defendant argues that Plaintiff so underestimated even his net earnings that the only conclusion the court can draw is that the misstatement was fraudulent and in bad faith. Despite the fact that Plaintiff understated his monthly net income by over $1,000, there is no proof that Plaintiff intentionally misrepresented his income in an attempt to gain IFP status and avoid the payment of filing fees. Before he filed the application, Plaintiff was not familiar with the IFP system, and completed the form at the suggestion of a court employee. Defendant has not shown that the misstatement of monthly income was fraudulent or in bad faith, warranting dismissal of the case. Taking into account an accurate statement of Plaintiff's income, the court finds that Plaintiff is no longer eligible for IFP status. As such, the proper sanction is a revocation of IFP status nunc pro tunc and an order of dismissal conditioned on the payment of the filing fee should be entered. See Christensen v. Bristol-Myers Co., 1990 WL 6554, *2 (S.D.N.Y. January 22, 1990).
CONCLUSION
The Defendant's motion to dismiss (Docket No. 9) should be DENIED and the Complaint should be dismissed unless, within 10 days following the District Judge's acceptance of this Report and Recommendation, Plaintiff pays the required filing fee to the Clerk of the Court.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.