ORDER AND FINDINGS & RECOMMENDATIONS
This matter came before the court on August 21, 2009 for hearing of defendants' motion to dismiss plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)(A) on the ground that the allegations of poverty in plaintiff's application to proceed in forma pauperis are untrue. Plaintiff Joanna O. Easterly, who is proceeding pro se, appeared telephonically on her own behalf. Lynn Trinka Ernce, Esq. appeared for defendants. After hearing the parties with respect to plaintiff's in forma pauperis application, the undersigned continued defendants' motion to September 11, 2009, for further hearing in conjunction with defendants' motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On September 11, 2009, plaintiff Easterly appeared telephonically on her own behalf, and Lynn Trinka Ernce appeared for defendants. Oral argument was heard, and the motions were taken under submission.
For the reasons set forth below, the undersigned now recommends that both motions be granted and that this case be dismissed with prejudice.
On December 15, 2008, plaintiff commenced this action by filing a complaint alleging one claim of racial discrimination and one claim of retaliation for having filed an EEO complaint about the racial discrimination. Both claims are based on Title VII and the Fourteenth Amendment. The named defendants are the Department of the Army and Pete Geren, Secretary of the Army. The case was assigned to United States District Judge Frank C. Damrell, Jr. and United States Magistrate Judge Gregory G. Hollows.
In her first claim, plaintiff alleges that race discrimination occurred on November 4, 2005, as follows. Plaintiff's supervisor, Lieutenant Colonel Sonja Banowetz (Banowetz), remarked that she had stubbed her toe and it was "black and blue as a niggertoe," and then she giggled and said her husband had told her she had better stop using the word "nigger." Plaintiff, was shocked and offended. She confronted Banowetz in private, but Banowetz responded with hostility and, pointing to her name tag, told plaintiff to make sure she spelled "Banowetz" correctly when she went to EEO. Banowetz had previously made offensive racial comments directed at plaintiff and other African American personnel. Banowetz referred to other African American personnel as plaintiff's uncle, brother, or sister, and she used the term "you people" in reference to plaintiff and other African American personnel. Banowetz also remarked that she thought she saw some of plaintiff's relatives when Hurricane Katrina victims were shown on the news, and on one occasion Banowetz called out in a loud voice when plaintiff arrived at an off-site Christmas party that all sharp objects should be hidden because a criminal had just walked in. Plaintiff felt that all such comments were meant to show contempt and hatred toward plaintiff as an African American. Plaintiff also felt that a supervisor should have known that use of the word "niggertoe" was offensive and disrespectful. Plaintiff rejected Banowetz's explanation that in her family Brazil nuts are referred to as "niggertoes." Plaintiff believes that the defendants tried to cover up Banowetz's mistake and discriminated against plaintiff by their callous disregard for plaintiff's right to work in an environment that is not injurious to her physical and mental health. Plaintiff continues to take prescribed medication for depression caused by racial discrimination. She seeks damages in the amount of $500,000, plus interest and costs.
In her second claim, plaintiff contends that she suffered retaliation for having complained to EEO about Banowetz's discriminatory remark. In this regard, plaintiff alleges as follows. Banowetz knew that plaintiff had a flex schedule and usually worked from 7:00 a.m. to 3:30 p.m. Shortly after plaintiff met with Banowetz about her discriminatory remark, Banowetz informed plaintiff that she would be transferred to another section because Banowetz needed someone to work from 8:00 a.m. to 5:00 p.m. When plaintiff responded that she had a flex schedule approved by the Chief of Staff, Banowetz went to the Human Resources office, removed plaintiff's approved flex schedule from the file, destroyed the document in plaintiff's presence, and laughed about it. In December 2005, plaintiff was advised that the General's staff was being reorganized and plaintiff was being reassigned because she did not have a security clearance and the position plaintiff encumbered was slated for a state employee. Plaintiff perceived the reassignment as retaliatory because (1) it occurred right after she filed her EEO complaint; (2) she had never had a security clearance and would not have been placed in the Command Section if a security clearance had been needed; and (3) Banowetz replaced plaintiff with another technician who, like plaintiff, was not on state active duty and was not a state civil service employee with a security clearance. The physical and mental emotional distress plaintiff suffered as a result of the retaliatory reassignment led to her medical discharge and loss of her job and career. She seeks $500,000 in damages, plus interest and costs.
On April 8, 2009, Magistrate Judge Hollows found that plaintiff's in forma pauperis affidavit shows inability to prepay fees and costs or give security for them. Magistrate Judge Hollows was unable to determine on the record at that time whether plaintiff's allegation of poverty was untrue or whether the action was frivolous or malicious or failed to state a claim on which relief may be granted. Judge Hollows reserved any decision on those issues until the record was sufficiently developed, but he granted plaintiff's motion to proceed in forma pauperis and authorized service of the complaint by the United States Marshal.
After defendants were served with process, defendants' counsel filed a notice of related cases. The district judge found this case to be related to Easterly v. Department of the Army, et al., case No. CIV S-07-1259 JAM DAD PS. After this case was reassigned, defendants filed their motions to dismiss.
DEFENDANTS' MOTION TO DISMISS PURSUANT TO 28 U.S.C. § 1915(e)(2)
Defendants move to dismiss plaintiff's complaint with prejudice on the ground that the allegations of poverty contained in plaintiff's application to proceed in forma pauperis are untrue. In particular, defendants argue that it is not true that plaintiff did not receive any disability payments in the twelve months preceding the filing of the in forma pauperis application.
"The clerk of each district court shall require the parties initiating any civil action, suit or proceeding in such court... to pay a filing fee of $350...." 28 U.S.C. § 1914(a). However, any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor.
The determination of whether a plaintiff is indigent and therefore unable to pay the filing fee falls within the court's sound discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 506 U.S. 194 (1993). A party need not be completely destitute to be eligible for in forma pauperis IFP status. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). The affidavit supporting an IFP motion is sufficient if it alleges facts showing that the plaintiff, because of poverty, cannot pay or give security for court costs and still be able to provide himself and his dependents with "the necessities of life." Id. at 339.
Notwithstanding any filing fee or partial filing fee 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." 28 U.S.C. § 1915(e)(2)(A) (emphasis added).*fn1 See Igbinadolor v. TiVo, Inc., F. Supp. 2d,, No. 1:08-CV-2580-RWS, 2009 WL 3253946, at *1 (N.D. Ga. Oct. 6, 2009) ("Dismissal of the case is required upon a showing that the allegation of poverty is untrue," and "[t]he only discretion the court has is whether to dismiss the case with or without prejudice."); Oquendo v. Geren, 594 F. Supp. 2d 9, 11 (D. D.C. 2009) ("[D]ismissal is mandatory in the face of untrue allegations of poverty."); Berry v. Locke, No. 1:08cv697 (JCC), 2009 WL 1587315, at *5 (E.D. Va. June 5, 2009) ("Courts that have considered [28 U.S.C. § 1915(e)(2)] have held that dismissal is mandatory when a court finds that allegations of poverty in an IFP application are untrue; the court also has the discretion to dismiss the case with prejudice."); Bell v. Dobbs Int'l Serv., 6 F. Supp. 2d 863, 864 (E.D. Mo. 1998) ("As is explicitly addressed in the statutory language, the fact that plaintiff paid the filing fee after her IFP application was denied does not preclude application of the provision to dismiss her case based on a false allegation of poverty."). Cf. Calhoun v. Hook, F. Supp. 2d,, No. C08-5697 ...