Murphy v. Clinical Solutions, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

VERNEKA MURPHY, )

)

Plaintiff, )

)

v. ) Case No. 3:18-cv-01287

) Judge Aleta A. Trauger

CLINICAL SOLUTIONS, LLC, )

)

Defendants. )

)

MEMORANDUM AND ORDER

Pro se plaintiff Verneka Murphy brings claims against defendant Clinical Solutions, LLC

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and

“state law.” (Doc. No. 1 ¶ 1.) Now before the court is the plaintiff’s “Objection to Magistrate’s

Reported Recommendation for Dismissal of Plaintiff’s Complaint Without Prejudice and Plea

Not to Dismiss My Case” (“Objection”) (Doc. No. 27), to which Clinical Solutions has filed a

Response in Opposition (Doc. No. 28).

The plaintiff objects to the magistrate judge’s Report and Recommendation (“R&R”)

(Doc. No. 26), recommending that the defendant’s Motion to Dismiss Plaintiff’s Complaint with

Prejudice (Doc. No. 10) be granted in part and denied in part. Specifically, in a detailed and

thoughtful opinion, the magistrate judge recommends that the motion be granted in part but that

the action be dismissed without prejudice under 28 U.S.C. § 1915(e)(2), rather than with

prejudice, based on uncontroverted evidence in the record that the plaintiff “significantly

misrepresented her average monthly income on her application to proceed in forma pauperis”

but insufficient evidence that the misrepresentations were made in bad faith. (Doc. No. 26, at 8.)

For the reasons set forth herein, the court will overrule the Objection and accept the magistrate

judge’s recommendations in their entirety.

I. Procedural Background

Prior to her termination in April 2017, the plaintiff was a pharmacist employed by

Clinical Solutions to provide services for the Tennessee Department of Corrections. The plaintiff

filed suit against Clinical Solutions on November 2018, alleging racial discrimination,

harassment, and retaliation in violation of Title VII. (Doc. No. 1.) With her Complaint, the

plaintiff filed an Application to Proceed in District Court Without Prepaying Fees or Costs (“in

forma pauperis application”), in which she estimated, under oath, that her average gross monthly

income from employment during the “past 12 months” was “1600–3200” and that her anticipated

income for the next month was likewise “1600–3200.” (Doc. No. 2, at 1.) She also stated that her

current income from employment was “$2000–3200 with no taxes taken out.” (Id. at 2.) She

alleged that, having been terminated by the defendant, she was earning a third of her previous

salary but still had the same expenses as before, which far exceeded her current income. (Id.

at 5.)

In addressing the in forma pauperis application, although the plaintiff presented a

borderline case of entitlement to proceed without paying the filing fee, the district court

concluded, based in large part on the income estimation, that the allegations were sufficient to

establish that the plaintiff would not be able to pay the filing fee and “still be able to provide

[herself] . . . with the necessities of life.” (Doc. No. 4, at 2 (quoting Adkins v. E.I. DuPont de

Nemours, Inc., 335 U.S. 331, 339 (1948)).) The court granted the in forma pauperis application

and referred the case to the magistrate judge to enter a scheduling order for the management of

the case and to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §

636(b)(1)(A) and (B). (Doc. No. 5.)

In July 2019, the defendant filed its Motion to Dismiss, asserting that the plaintiff had

established under oath during her deposition that the statements regarding her income in her in

forma pauperis application were not truthful and that she, in fact, had earned $49,999.50 in

compensation in 2018 as a pharmacist for Affordable Pharmacy. (See Doc. No. 11, at 1 (citing

Doc. No. 11-1, at 5–6).) In other words, her average gross monthly income from employment for

the year preceding the filing of her in forma pauperis application was more than $4,100, not

$1,600–3,200. The plaintiff’s income remained at that level for the months in 2019 for which

income records were available at the time of her deposition. (See Doc. No. 11-1, at 9–10, 14, 15

(Affidavit and payroll record for 2018 and 2019 from Affordable Pharmacy).) The plaintiff’s

only explanation for the figure she provided on the in forma pauperis application was that she

“did not have actual records available” and simply provided “an estimation on monthly income.”

(Doc. No. 11-1, at 6.)

In her Response in Opposition to the Motion to Dismiss, the plaintiff does not refute the

payroll documentation submitted by Affordable Pharmacy, but she explains that she was a

contract worker rather than an employee. She claims that the $50,000 income was a gross

amount that did not include deductions for income tax or the $600 penalty she had to pay for not

having health insurance. She asserts, as she did in her in forma pauperis application, that her

income is substantially less than it was when she was a full-time employee. She also claims that

she suffered health problems several months after filing suit that resulted in further diminution of

her income. (Doc. No. 20.)

In reviewing the defendant’s motion, the magistrate judge found that the plaintiff’s

representation of her income on the in forma pauperis application, which clearly requested

information regarding gross income rather than net, was untrue. The record irrefutably

establishes that the plaintiff’s income during the relevant period was $50,000, not the $19,200 to

$38,400 represented by the plaintiff’s estimated monthly income. Based on that inaccuracy and

the language of 28 U.S.C. § 1915(e)(2), the magistrate judge recommends dismissal of the case.

Because of insufficient evidence of bad faith, the magistrate judge recommends that the

dismissal be without prejudice.

The plaintiff filed her timely Objection to the R&R, but she does not actually object to

any finding of fact or conclusion of law by the magistrate judge. Instead, she seeks to restate her

case for this court’s de novo review, pointing out some “critical mistakes” she made in

presenting her in forma pauperis application, which she now seeks to explain; describing health

problems that arose in March 2019, several months after she filed this case; admitting that the

income estimates in her application “were slightly off”; and averring that she reported the

information on her in forma pauperis application in good faith and that she was in fact indigent

and in debt when she completed her application. (Doc. No. 27, at 8; see id. at 13 (“The estimated

values were a little off but the picture of poverty painted on my application remains the same.”).)

In its Response to the plaintiff’s Objection, the defendant argues that the plaintiff’s

general and conclusory objection does not satisfy Rule 72(b) of the Federal Rules of Civil

Procedure or Local Rule 72.02 and that dismissal with prejudice under 28 U.S.C. §

1915(e)(2)(A) is appropriate.

II. Standard of Review

Within fourteen days after being served with a report and recommendation as to a

dispositive matter, as here, any “party may serve and file specific written objections to [a

magistrate judge’s] proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The

district court must review de novo any portion of the report and recommendation “that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, the district court “may

accept, reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.” Id.

The district court is not required to review—under a de novo or any other standard—

those aspects of the report and recommendation to which no objection is made. Thomas v. Arn,

474 U.S. 140, 150 (1985). The district court should adopt the magistrate judge’s findings and

rulings to which no specific objection is filed. Id. at 151. “The filing of vague, general, or

conclusory objections does not meet the requirement of specific objections and is tantamount to a

complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001) (see also

Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (issues raised in a

“perfunctory manner, unaccompanied by some effort at developed argumentation,” are waived

(quoting Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir.

2000))). Likewise, “[a] general objection to the entirety of the magistrate’s report has the same

effects as would a failure to object.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,

509 (6th Cir. 1991). Finally, arguments made in an objection to a magistrate judge’s report and

recommendation that were not first presented to the magistrate for consideration are deemed

waived. Becker v. Clermont Cty. Prosecutor, 450 F. App’x 438, 439 (6th Cir. 2011); Murr v.

United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).

Although pro se pleadings and filings are held to less stringent standards than those

drafted by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se

litigants are not entirely exempt from the requirements of the Federal Rules of Civil Procedure.

See, e.g., Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

III. Analysis

The defendant argues that the plaintiff’s objections are not sufficiently specific to warrant

review. See Langley, 502 F.3d at 483; Cole, 7 F. App’x at 356; Howard, 932 F.2d at 509.

Reading between the lines, the court finds that the plaintiff has lodged one clear objection: that

the magistrate judge erred in concluding that the plaintiff’s underestimation of her income from

employment for the preceding year was substantial or material to the overall finding that she was

indigent and entitled to proceed without prepaying the filing fee. In light of this argument, the

court has reviewed the entire record de novo and agrees with the magistrate judge’s findings and

conclusions.

Section 1915(e)(2)(A) states, pertaining to cases filed in forma pauperis: “[T]he court

shall dismiss the case at any time if the court determines that . . . the allegation of poverty is

untrue.” Courts previously had discretion to dismiss a case if an allegation of poverty was

determined to be untrue, but the Prison Litigation Reform Act amended § 1915 to add the

mandatory “shall dismiss” language. Pub. L. 104–134 § 804; see also 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.”). If a court determines that an

allegation of poverty is untrue, the court must dismiss the case, but it has discretion to decide

whether to dismiss the case with or without prejudice.1 See Jones v. Mich. Dep’t of Human

1 The Supreme Court has explained that a dismissal with prejudice operates as an

“adjudication upon the merits” but that a dismissal without prejudice is a “dismissal without

barring the plaintiff from returning later, to the same court, with the same underlying claim.”

Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (citations omitted).

Servs., No. 12-14466, 2013 WL 640771, at *1 (E.D. Mich. Feb. 21, 2013) (“ ‘[A] district court

has the discretion to dismiss a case with prejudice where a plaintiff has in bad faith filed a false

affidavit of poverty.’” (quoting Romesburg v. Trickey, 908 F.2d 258, 260 (8th Cir. 1990))); see

also Thompson v. Carlson, 705 F.2d 868, 869 (6th Cir. 1983) (per curiam) (holding that “the

district court did not err in dismissing plaintiff’s case with prejudice” based on knowingly false

misrepresentations in an in forma pauperis application).

The purpose of 28 U.S.C. 1915(e)(2)(A) “‘is to weed out litigants who falsely understate

their net worth in order to obtain in forma pauperis status when they are not entitled to that status

based on their true net worth.’” Jones, 2013 WL 640771, at *1 (quoting Attwood v. Singletary,

105 F.3d 610, 613 (11th Cir. 1997)). Thus, “‘[n]ot every inaccuracy in an affidavit of poverty, no

matter how minimal, should be construed as a false allegation of poverty so as to cause loss of in

forma pauperis eligibility and dismissal of the complaint.’” Robinson v. Koch Foods of Ala., No.

2:13-cv-557-WKW, 2014 WL 4472609, at *2 (M.D. Ala. Sept. 1, 2014) (quoting Camp v.

Oliver, 798 F.2d 434, 438 n.3 (11th Cir. 1986)).

The evidence in the record clearly establishes that the plaintiff’s actual income from

employment was substantially more than her “estimate,” and her actual employment income

would have been a material factor in determining in the first instance whether the plaintiff was

entitled to pursue this lawsuit without prepaying the filing fee. The misrepresentation was not a

minimal inaccuracy but, instead, a substantial and material misrepresentation of the plaintiff’s

income. As a result, the allegation of poverty in her in forma pauperis application was untrue for

purposes of § 1915(e)(2)(A), and dismissal is required.

The plaintiff’s other arguments, including the difference between her current income and

the income she earned while employed by the defendant and the health problems she has

suffered since filing this lawsuit, are simply not relevant to the magistrate judge’s findings of fact

and conclusions of law or to the determination of whether her in forma pauperis application

materially misrepresented her income from employment.

IV. Conclusion and Order

For the reasons set forth herein, the plaintiff's Objection (Doc. No. 27) is

OVERRULED. The R&R’s findings and conclusions are ACCEPTED and ADOPTED in

their entirety, and the defendants’ Motion to Dismiss (Doc. No. 10) is GRANTED IN PART

and DENIED IN PART. This case is DISMISSED WITHOUT PREJUDICE.

It is so ORDERED.

United States District Judge