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La Tanya Palmer v. Dollar Tree

October 9, 2012


Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge



For the reasons stated below, Defendant's motion to dismiss [39] is denied.

O[ For further details see text below.] Docketing to mail notices.


I. Background

On November 15, 2010, Plaintiff La Tanya Palmer filed a complaint alleging that her former employer, Dollar Tree, discriminated against her on the basis of sex in violation of Title VII, 42 U.S.C. § 2000e et seq. That same day, Plaintiff filed her first application for leave to proceed in forma pauperis ("IFP") [4]. The application form begins with instructions: "Please answer every question. Do not leave any blanks. If the answer is 'none' or 'not applicable (N/A),' write that response." Despite that instruction, Plaintiff did not answer the only two questions on the first page: question 1, "Are you currently incarcerated?" and question 2, about current or previous employment. Plaintiff answered the remaining application questions, noting that her son receives social security payments of $530 and that her children receive $400 of food assistance. She also reported that she owns a 1997 Land Rover Discovery, which she valued at $4,000. On November 18, 2010, the Court granted Plaintiff's IFP application [6]. In the same order, the court denied without prejudice Plaintiff's motion for appointment of counsel.

On July 29, 2011, Plaintiff filed a renewed motion for appointment of counsel and, along with it, a second IFP application [23]. The Court denied the renewed motion for appointment of counsel and, because the first IFP application had been granted, struck the second as moot [25]. In the second IFP application, Plaintiff answered the question about her employment, stating that she was not currently employed but that she had worked for Civic Staffing from April 2010 to April 2011 at $8.25 per hour. She did not say how much she worked. Unlike the first IFP application, the second did not disclose social security income and claimed food assistance of $300 instead of $400. Through discovery, Defendant acquired tax forms and a job application showing that Plaintiff earned $10,515 from Civic Staffing and $904 from the YMCA in 2010, and was employed by Salon North through January 2010.

Defendant now moves to dismiss [39] based on the misstatements and omissions in Plaintiff's IFP applications. Defendant believes dismissal is required under 28 U.S.C. § 1915(e)(2)(A), which states: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that * * * the allegation of poverty is untrue."

II. Analysis

The purpose of the IFP statute is to make it possible for a person to bring claims or assert defenses in federal court even if that person is unable to afford the fees and costs of litigation. See 28 U.S.C. § 1915(a)(1). "The opportunity to proceed in forma pauperis is a privilege provided for the benefit of indigent persons and the court system depends upon the honesty and forthrightness of applicants to ensure that the privilege is not abused." Chung v. Dushane, 2003 WL 22902561, at *2 (N.D. Ill. 2003) (citing Denton v. Hernandez, 504 U.S. 25, 27 (1992)). To prevent abuse, the privilege is guarded by a severe sanction: if "the allegation of poverty is untrue," the court must dismiss the case. 28 U.S.C. § 1915(e)(2)(A).

In assessing a person's ability to pay court costs, the Court (at minimum) reviews the IFP application to learn whether the applicant is incarcerated, employed, or married; whether the applicant or anyone living in his or her residence has received more than $200 from any of various sources in the previous twelve months, or if the applicant or cohabitant has more than $200 in cash or in a bank account, or any stocks, bonds, or securities; whether the applicant or anyone living with the applicant owns any real estate, automobile, boat/trailer/mobile home; and whether the applicant has any dependents.

Critical to this case, it is not possible for the Court to properly assess a plaintiff's claim of indigence without understanding whether he is, or recently has been, employed. Here, Plaintiff admits that she failed to provide the Court with that important information in her first IFP application but denies intentionally misleading the court. The omission, she says, was just a misunderstanding. As Plaintiff puts it, "I did not understand that I had to include all income from the past twelve months on the IFP. I assumed the form was asking for information only at the time I was filling out the forms." In any event, Plaintiff argues, her mistake was "not material" because her allegation of poverty was "not false."

The Court concludes that Plaintiff made a mistake by failing to answer the employment question on her first IFP application. She answered the question the second time, and the Court does not believe that she was trying accomplish deception by confession. A simpler and more plausible theory of Plaintiff's conduct is that she is just not very good with forms. This view is supported by the complaint that she filed in this case [1]. The fill-in-the-blanks complaint is scarcely more complicated than the IFP application, but hers nevertheless contains glaring mistakes. For instance, the form says that the plaintiff should "Choose paragraph 7.1 [if the defendant is not a federal government agency] or 7.2 [if the defendant is a federal government agency]. Do not complete both." Despite that direct instruction, she completed both. Paragraph 9 asks if the EEOC has issued a Notice of ...

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