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Doyle v. Town of Scarborough

United States District Court, D. Maine

January 12, 2017

TOWN OF SCARBOROUGH, et al., Defendants


          John C. Nivison U.S. Magistrate Judge.

         The matter is before the Court on Plaintiff's second Application to Proceed in District Court Without Prepaying Fees or Costs (ECF No. 54), which motion Plaintiff filed in response to the Court's September 14, 2016, Order Granting in Part and Dismissing Without Prejudice in Part Defendants' Motion to Show Cause and Motion for Oral Argument or Hearing. (ECF No. 37.) Defendants object to the application, and ask the Court to dismiss the case with prejudice. (ECF No. 56.)

         Following a review of the parties' submissions, I recommend the Court vacate the Court's prior order granting Plaintiff leave to proceed in forma pauperis, and dismiss Plaintiff's complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2).


         On June 12, 2015, Plaintiff filed a complaint and a motion for leave to proceed in forma pauperis. On the form motion, when asked to disclose his gross “pay or wages, ” Plaintiff reported monthly social security income of $1, 113, but no other gross “pay or wages.” When asked on the form to disclose any other income received in the past 12 months from, inter alia, self-employment, gifts, or other sources, Plaintiff stated he had no such income. (ECF No. 4.) Plaintiff also denied owning a car, having any housing payments, having any loan payments or other monthly expenses. (Id.) Based on Plaintiff's sworn application, the Court granted Plaintiff's motion to proceed in forma pauperis. (ECF No. 4.)

         In a motion requesting an order to show cause, Defendants challenged the accuracy of the information contained in Plaintiff's application. (ECF No. 28.) Based on information revealed during a state court proceeding in which Plaintiff and Defendant Town of Scarborough were involved, Defendants argued that Plaintiff's application did not include all of the information relevant to Plaintiff's financial status, including information regarding Plaintiff's work as an Uber driver. (See, generally, exhibits to Defendants' motion for order to show cause, ECF No. 28.) Defendants also reported that following a hearing regarding Plaintiff's entitlement to a fee waiver in the state court proceeding, on February 27, 2015, approximately 4 months prior to the commencement of this action, the Maine Superior Court determined Plaintiff had failed to disclose relevant information on his application to that Court for leave to proceed in forma pauperis. (Order at 2, ECF No. 28-5.)

         After a review of Defendants' motion and Plaintiff's response, “[t]o make certain [Plaintiff] has not misrepresented his financial situation leading to the granting of his in forma pauperis state and to give [Plaintiff] the opportunity to clarify his financial status, ” the Court ordered Plaintiff to file “a second Application to Proceed in District Court Without Paying Fees or Costs (Form AO 240) with an updated affidavit setting forth the dates he worked for Uber, the month by month income he received from Uber from June 12, 2014 to date, and any other financial information Mr. Doyle deems relevant to the issue of his financial status and his entitlement to in forma pauperis status.” (Order at 3, ECF No. 37.)

         In response to the Court's order, Plaintiff filed a pleading entitled, “Confidential Financial Information from Plaintiff Pursuant to Court Order Dated September 14, 2016.” (ECF No. 44.) Plaintiff also filed a new motion for leave to proceed in forma pauperis. (Motion for Leave to Proceed, ECF No. 54.) In their opposition to Plaintiff's motion, Defendants urge the Court to deny Plaintiff's request to proceed in forma pauperis, and ask the Court to dismiss Plaintiff's complaint with prejudice as a sanction for the misrepresentations on his application. (Opposition at 6, ECF No. 56.)


         Pursuant to 28 U.S.C. § 1915(a)(1), a district court “may authorize the commencement ... of any suit [or] action ... without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor.” “[A] non-prisoner litigant may qualify for IFP status after submitting an affidavit listing all assets and anticipated expenses and substantiating his inability to pay.” Emrit v. Bank of Am., Inc., 566 F. App'x 265 (4th Cir. 2014) (per curiam).

         Plaintiff's renewed motion and related filings contain the following information regarding his 2015 financial status, which information was not included in his original filing: (1) Plaintiff earned gross income of $55, 634.83 from transporting passengers through the Uber referral system;[1] (2) Plaintiff financed the purchase of a 2015 Honda Crosstour and has a monthly payment of $628; (3) Plaintiff claims net revenue of $2, 394 from self-employment through Uber;[2] and (4) Plaintiff claims that he has monthly housing costs of $1, 097.22.[3] (ECF No. 55.)

         Plaintiff's renewed application and related filings thus include significantly more material information regarding his financial status than his original filing, despite specific questions on the form used for the original filing that required Plaintiff to provide the additional information. For example, Plaintiff now reports a substantially higher gross income (i.e., the Uber income plus the social security income) than the income originally reported (i.e., the social security income). Regardless of Plaintiff's arguments regarding his net income, Plaintiff clearly did not provide accurate information when he filed the original application, and he materially understated the income earned and available to him.[4]

         The in forma pauperis statute specifically provides that “the court shall dismiss the case at any time if the court determines that … the allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A) (emphasis supplied). Under the plain language of the statute, dismissal is mandatory.[5] Thomas v. Gen. 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.”) The question is whether the dismissal should be with prejudice as Defendants request.[6]

         Dismissal with prejudice is the most severe sanction and is therefore reserved for the most extreme misconduct. Esposito v. Home Depot U.S.A., Inc., 590 F.3d ...

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