Easterling v. U.S. Department of Commerce

Filing 51

OPINION AND ORDER granting 42 motion to dismiss under 28 U.S.C. 1915(e)(2)(A) and the Second Amended Complaint is dismissed without prejudice to proceeding in a new case after paying the filing fee. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines, and close the file. Signed by Judge John E. Steele on 6/21/2019. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RODERICK F. EASTERLING,
Plaintiff,
v.

Case No:

2:17-cv-441-FtM-29MRM

WILLIAM
ROSS,
Secretary,
U.S. Department of Commerce,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant's Motion to
Dismiss Under 28 U.S.C. § 1915(e)(2)(A) (Doc. #42) filed on April
11, 2019.

Plaintiff filed a Brief Opposing Dismissal (Doc. #49)

on May 31, 2019.

Defendant seeks to dismiss the case pursuant 28

U.S.C. § 1915(e)(2)(A) based on misrepresentations and omissions
of fact that render plaintiff’s allegations of poverty untrue.
Plaintiff filed an Affidavit of Indigency (Doc. #2) on August
2, 2017, seeking to proceed in forma pauperis.

Therein, plaintiff

states that his date of last employment was 2010.

Plaintiff

identified a 2009 Mercedes CLK350 with $16,793 still owing and a
monthly payment of $350 a month; $625.00 in total cash in hand;
and a monthly rental expense of $1525.

Plaintiff left blank

paragraph 2.c, which required him to list “monies received during
the last twelve (12) months into your hands, into banks, savings

and

loan

associations,

prisoner

accounts,

other

financial

institutions, or other sources”, including pensions, annuities, or
life insurance, gifts or inheritances, stocks, or bonds.
#2, pp. 2-4.)

(Doc.

Plaintiff signed and notarized the Affidavit under

the following statement:
I UNDERSTAND that any false statement(s) of a
material fact contained herein may serve as
the basis of prosecution and conviction for
perjury or making false statements. FURTHER,
I CERTIFY that all questions contained herein
have been answered and are true and correct to
the best of my knowledge and belief.
(Doc. #2, p. 5.)

On August 21, 2017, the Magistrate Judge reviewed

the Affidavit under 28 U.S.C. § 1915, and allowed plaintiff to
proceed
indigent.

without

prepayment

of

costs

finding

plaintiff

was

(Doc. #9.)

Defendant seeks to dismiss the Second Amended Complaint (Doc.
#36) under subsection (A) of § 1915 based on plaintiff’s deposition
testimony taken on March 20, 2019.

Under Section 1915(e),

(2) 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-(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief
may be granted; or

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(iii)
seeks
monetary
relief
against
defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2) (emphasis added).

a

“The in forma pauperis

statute, 28 U.S.C. § 1915, ensures that indigent persons will have
equal access to the judicial system.”

Attwood v. Singletary, 105

F.3d 610, 612 (11th Cir. 1997).
The purpose of section 1915(d) is not to
punish litigants whose affidavits contain
insignificant discrepancies, but to weed out
the 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. [ ] 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.
[ ]. In the absence of a finding of bad faith
misstatement of assets, litigiousness or
manipulative tactics, however, dismissal with
prejudice is not warranted. [ ].
Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990).

The

Eleventh Circuit “has held that dismissal with prejudice is an
appropriate sanction in cases involving a bad-faith misstatement
of assets.”

Id. 902 F.2d at 880 (citing Dawson v. Lennon, 797

F.2d 934, 935 (11th Cir. 1986) (dismissal with prejudice, although
a last resort, is appropriate in cases involving bad faith)).

The

Court first determines whether “considering the facts as a whole”,
the

inaccuracies

by

plaintiff

proceed in forma pauperis.

would

foreclose

eligibility

to

Camp v. Oliver, 798 F.2d 434, 438

(11th Cir. 1986).

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During his deposition, plaintiff admitted that he owns a
second Mercedes outright but he did not disclose it because “they
only gave me one spot” and because it says “automobile” not
“automobiles”.

(Doc. #42-1, p. 206.)

Plaintiff did not disclose

a $32,478.78 distribution he received in September 2016 from his
401(a).

Plaintiff’s reason was that it says payments, and he made

a withdrawal and closed the account so it was “totally different.”
(Id., pp. 210-211.)

Plaintiff argued that he did not receive the

money because it went straight to “the car man” for the purchase
of a Mercedes for his daughter.

(Id., pp. 100, 213.)

Plaintiff

later admitted that the money had to be deposited into his bank
account first and then it went to the car dealer.

Plaintiff

admitted that it was something that should have been disclosed.
(Id., pp. 215-216.)
Plaintiff also admitted that he in fact did receive two
payments from the family trust in the preceding 12 months before
filing

the

Affidavit,

$7,000

and

$3,000.

(Id.,

p.

209.)

Plaintiff stated that he has two Rolls-Royces, a Model T, and some
Cadillacs, plus “a lot of apartment buildings and houses and stuff”
in the Easterling Peterkin Dudley trust, and he uses them in car
shows.

(Id., pp. 102, 104, 106.)

Plaintiff admitted he made an error in not including his VA
disability benefits.

(Id., p. 210.)

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Plaintiff stated that he

received almost $3,000 a month in VA benefits for each of the 12
months

before

the

filing

of

the

Affidavit.

(Id.,

p.

217.)

Plaintiff would not say that the facts in the affidavit were
untrue, but rather “misrepresented.”

(Id.)

In his opposition to defendant’s motion, plaintiff admits
that he did not disclose the 401(a) distribution, or the VA
benefits.

Plaintiff argues that the distribution was a severance

retirement payment, and that the VA disability payments are not
taxable and “do not have to be reported as income or monies based
on Federal law.”

Therefore, plaintiff argues that his allegation

of poverty were true.
Based on the above established facts regarding plaintiff’s
income, the Court finds that indigent status would have been
denied.

Having

so

determined,

the

Court

must

whether dismissal with prejudice is warranted.

next

consider

This requires a

finding of bath faith in the filing of a false affidavit of
poverty.

Dawson v. Lennon, 797 F.2d 934, 935 (11th Cir. 1986).

The Court cannot unequivocally say that the “misrepresentations”
were made in bad faith.

The Court will dismiss the case without

prejudice but close the file.

If plaintiff wishes to be heard on

the merits, he may file a new case after paying the filing fee.
Accordingly, it is hereby
ORDERED:

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Defendant's Motion to Dismiss Under 28 U.S.C. 1915(e)(2)(A)
(Doc. #42) is GRANTED and the Second Amended Complaint is dismissed
without prejudice to proceeding in a new case after paying the
filing fee.

The Clerk shall enter judgment accordingly, terminate

all deadlines and motions as moot, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2019.

Copies:
Plaintiff
Counsel of Record

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21st

day