The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This is an employment discrimination case brought Plaintiff,
Hedrick Humphries ("Humphries"), pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and
42 U.S.C. § 1981. Defendant, CBOCS West, Inc. ("Cracker Barrel"),
has moved to dismiss Humphries' Title VII claims of the
complaint, with prejudice, on the basis that they were untimely
filed. For the reasons set forth below, the motion to dismiss is
Humphries had been employed at Cracker Barrel Restaurant for
three years as an associate manager. Upon termination from
Cracker Barrel, in December of 2001, he filed a two-count
discrimination claim with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of race
and retaliation in violation of the Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000 et seq. and 42 U.S.C. § 1981.
In turn the EEOC, dismissing Humphries' complaint, issued him a
Notice of Right to Sue on March 3, 2003. The notice informed
Humphries that if he wanted to commence a civil action, he was
required to file a complaint with the court within 90 days of his
receipt of the notice. Accordingly, Humphries had until June 5,
2003 to file the complaint.
On June 2, 2003, three days prior to the expiration of the
90-day statutory period, Humphries filed the lawsuit, along with
a motion for the appointment of counsel and an application for
leave to proceed In Forma Pauperis ("IFP"). On June 25, 2003,
we denied Humphries' IFP application on the basis that, first,
his income was above the poverty threshold level and, second, the
petition lacked other pertinent information necessary to make a
determination as to his financial circumstances.
Subsequently, Humphries amended the IFP application to include
the missing financial information and resubmitted the request to
this court on October 14, 2003. Denying the amended application
on October 22, 2003, we determined that Humphries was not
indigent and, therefore, was ineligible to proceed IFP. Following the second denial, Humphries, again amended the IFP
application and submitted it to this court on December 2, 2003.
Upon reviewing the third request, we denied the petition and
ordered him to pay the filing fee. On January 12, 2004, 195 days
beyond the 90-day statutory of limitations period, Humphries paid
the filing fee.
The legal issue before this court is whether Humphries'
complaint was timely "filed" within the meaning of
42 U.S.C. § 2000e-5(f)(1), since the filing fees were paid outside of the
90-day statute of limitations period.
Cracker Barrel contends that since Humphries paid the filing
fees 184 days after the expiration of the 90-day statute of
limitations period, Humphries' complaint was untimely filed under
42 U.S.C. § 2000e-5(f)(1). Thereby, pursuant to the Federal Rules
of Procedure Rule 12(b)(6), defendant has moved to dismiss the
complaint, "for failure to state a claim upon which relief can be
granted". Fed.R. Civ. P. 12(b)(6).
In determining whether to grant a 12(b)(6) motion to dismiss,
the Court will accept "the well-plead allegations in the
complaint as true and draw all reasonable inferences in favor of
the plaintiff." Hentosh v. Herman M. Finch University of Health
Sciences 167 F.3d 1170, 1173 (7th Cir. 1999). "A court may
dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). "We view the facts in the complaint in the light most favorable
to the non-moving party." Hentosh, 167 F.3d at 1173.
42 U.S.C. § 2000e-5(f)(1) requires that a plaintiff must file a
civil action within 90 days of receiving the EEOC Notice of the
Right to Sue. A "civil action is commenced by filing a
complaint with the court." Fed.R. Civ. P. 3. Emphasis added.
According to the Northern District of Illinois Local Rules, a
complaint is "filed" when the complaint, accompanied with the
appropriate filing fee, is submitted to the clerk. Local Rule
3.3. However, a court "may authorize the commencement . . . of
any suit . . . without prepayment of fees and costs" if the
plaintiff is unable to pay. 28 U.S.C. § 1915(a); see
Williams-Guise v. Board of Education of the City of Chicago,
45 F.3d 161, 162 (7th Cir. 1995). Where the plaintiff is unable to
pay the filing fee, he may submit a petition to the court to
proceed IFP. If the judge approves the IFP petition, the
complaint is deemed "filed" either on the date of the judge's
order or on date the complaint and IFP petition was placed in
custody of the clerk. Local Rule 3.3; see Williams-Guise,
45 F.3d 161, 162 (7th Cir. 1995); Stephenson v. CNA Financial
Corporation, 777 F. Supp. 596, 589 (N.D. Ill. 1991); Quiles v.
O'Hare Hilton, 572 F. Supp. 866, 867 (N.D. Ill. 1983).
However, in cases where the judge rejects an IFP petition, the
complaint is not deemed "filed" until the date the filing fees
are paid. Williams-Guise, 45 F.3d 161 at 162; Robinson v. America's Best Contacts and Eyeglasses,
876 F.2d 596, 597 (7th Cir. 1989). For purposes of the statute of
limitations, when an IFP petition is submitted to the clerk, the
court will temporarily suspend or toll the limitations period
while the court determines whether to grant or deny the IFP
petition. However, the limitations period resumes running upon
the date the plaintiff receives notification of the denial.
Williams-Guise v. Board of Education of the City of Chicago,
45 F.3d 161, 162 (7th Cir. 1995); Triplett v. Midwest Wrecking
Co., 155 F. Supp. 2d 932, 935 (N.D. Ill. 2001); see Jarrett v.
U.S. Sprint Communications Co., 22 F.3d 256, 259 (10th Cir.
In the instant case, Humphries received the Notice of the Right
to File on March 6, 2003. The notice provided that in order to
file a civil action, Humphries must file suit within 90 days, or
by June 5, 2003. Accordingly, Humphries timely submitted his
complaint and his first IFP petition on June 2, 2003, three days
before the expiration of the 90-day statute of ...