Tennial v. Madigan

Filing 28

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 1/30/2012: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN S. TENNIAL

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Plaintiff,
v.
LISA MADIGAN, et al.,
Defendants.

No. 11 C 3092

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion to dismiss. For the
reasons stated below, the motion to dismiss is granted.

BACKGROUND
Plaintiff John S. Tennial (Tennial) alleges that he is currently employed as a
staff assistant by Defendant Office of the Illinois Attorney General (AG’s Office).
Tennial also alleges that the AG’s Office has failed to promote him to the position of
sworn enforcement investigator because of his race. In addition, Tennial alleges that
in November 2010, he sought pension benefits through the Illinois State Police

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Pension Fund (Pension Benefits) based on his prior service as an investigator for the
AG’s Office. According to Tennial, after he submitted certain documentation, an
employee with the State Retirement System indicated to Tennial that he was eligible
to receive Pension Benefits, subject to approval by the AG’s Office. The AG’s
Office allegedly refused to approve the payment of Pension Benefits to Tennial.
Thereafter, Tennial allegedly communicated his intention to file a charge of
discrimination with the Illinois Department of Human Rights (IDHR) and the Equal
Employment Opportunity Commission (EEOC). Tennial alleges that shortly after he
communicated his intention to file a charge of discrimination against the AG’s
Office, he was investigated in connection with a sexual harassment complaint filed
against him by a co-worker.
In the instant action, Tennial has brought claims against Defendant State of
Illinois, Defendant Attorney General Lisa Madigan (Madigan) in her official
capacitiy, the AG’s Office, and in their individual capacities, Defendant Roger P.
Flahaven (Flahaven), Madigan, Spillane, Bazer, Mehan, Saltourn, McConnell, and
Barnes (collectively, the “Individually Named Defendants”), alleging that Tennial
was discriminated against and retaliated against in violation of Title VII of the Civil
Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981 (Section 1981). Defendants
have moved to dismiss all claims in the complaint.

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LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), a court must “accept as true all of the allegations
contained in a complaint” and make reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is “inapplicable
to legal conclusions”); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750,
753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting
in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that
contains factual allegations that are “merely consistent with a defendant’s liability
. . . stops short of the line between possibility and plausibility of entitlement to
relief.” Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

DISCUSSION
Since Tennial is proceeding pro se, in ruling on the instant motion to dismiss,
the court must consider the facts alleged by Tennial in both his original and amended

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complaint, as well as any other consistent facts that Tennial has presented in his
filings. Gutierrez v. Peters, 111 F.3d 1364, 1367 n. 2 (7th Cir. 1997). In addition,
since Tennial is proceeding pro se, the court must liberally construe Tennial’s filings.
McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000)(stating that “pro se
complaints are to be liberally construed and not held to the stringent standards
expected of pleadings drafted by lawyers”). Defendants argue that the instant action
should be dismissed because Tennial provided inaccurate information regarding his
salary on his in forma pauperis application form and because Tennial has failed to
state a claim upon which relief can be granted. Defendants also argue that any
request for punitive damages should be stricken.
In the first instance, Defendants argue that the instant action should be
dismissed because Tennial made false representations to the court regarding his
financial status on his in forma pauperis application form. Pursuant to 28 U.S.C. §
1915(e)(2)(A) (Section 1915), which governs proceedings in forma pauperis,
dismissal of an action is required “at any time if the court determines that the
allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A). On his in forma
pauperis application form, Tennial indicated that his monthly salary was $3,600.00.
Defendants presented evidence showing that Tennial’s salary was actually $4,511.00

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per month. In response, Tennial has attempted to explain the discrepancy by
indicating to the court that he merely estimated his net salary when completing his in
forma pauperis application form. The Defendants then challenged Tennial’s
explanation by pointing out to the court that Tennial’s net salary is $2,432.84 per
month, which is approximately $1,200 a month different than the amount Tennial
indicated on his form. Tennial’s explanation that he was merely estimating the
amount of his salary is unpersuasive, especially in light of the fact that Tennial
claims to be an experienced former investigator. In addition, the in forma pauperis
application form clearly asked Tennial to provide the amount of his monthly salary
and not what Tennial believed his monthly salary to be after certain expenses.
Tennial indicated a lower salary in order to succeed on his in forma pauperis
application form, and after the fact, Tennial has unsuccessfully attempted to explain
away his misrepresentation. Based on the above facts, Tennial clearly provided false
information as to his monthly salary to the court.
In addition, Tennial indicated on his in forma pauperis application form that
he is married, but Tennial failed to respond to the questions on the form relating to
his wife’s employment. However, Tennial indicated later on the in forma pauperis
application form that he and his wife own an automobile and that the monthly

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payments of $490.00 are made by his wife. Thus, on his in forma pauperis
application form, Tennial also made misrepresentations to the court by omissions
relating to his wife’s income.
The Seventh Circuit indicated in Hrobowski v. Commonwealth Edison Co.,
203 F.3d 445, 448 (7th Cir. 2000), that mandatory dismissal under Section 1915 is
only appropriate if a plaintiff has been granted in forma pauperis status. Id.
However, subsequently, the Seventh Circuit indicated that “[w]hether the false
statements actually result in a grant of in forma pauperis status or other relief is
irrelevant under § 1915(e)(2)(A).” McRoyal v. Commonwealth Edison Co., 2008
WL 345345, at *2 (7th Cir. 2008)(unpublished)(also stating that “the wrongful act of
making false statements to the court is always harmful”); see also Thomas v. General
Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002)(stating, without
addressing the plaintiff’s IFP status, that “[b]ecause the allegation of poverty was
false, the suit had to be dismissed; the judge had no choice” and discussing legal
standards applied to a dismissal with prejudice). The court in the instant action
denied Tennial’s motion to proceed in forma pauperis because Tennial failed to
properly complete his application. Now evidence has been presented showing that
Tennial purposefully submitted false information to the court on his in forma

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pauperis application form. Therefore, the instant action must be dismissed. The
question is whether the dismissal will be with or without prejudice.
Providing accurate information as to an individual’s salary or income is
critical to proper adjudication of an in forma pauperis application. When an
individual has a legal claim, but is unable to file such claim in court due to the cost of
filing the action, proceeding in forma pauperis provides that individual access to the
courts. It is imperative that the system not be abused and that applicants provide
accurate information on their in forma pauperis application form, because in a vast
majority of cases, adjudication of an in forma pauperis application occurs before the
opposing party has been served and such party therefore will not have an opportunity
to challenge the facts provided by the applicant. In addition, even if the opposing
party has an opportunity to challenge the facts provided by the applicant, the
opposing party generally might not have the relevant information to challenge the
applicant’s statements on the in forma pauperis application form.
The court is mindful that some pro se plaintiffs might make an honest error
when completing the in forma pauperis application form. However, in this case, one
or more of the Defendants, being the employer of the applicant, was able to
challenge the accuracy of Tennial’s in forma pauperis application form. Also, in this

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case, Tennial who has a decent income, was attempting to proceed in forma
pauperis, and there is a significant discrepancy between the amount Tennial claimed
and the actual amount of his salary, whether compared to his gross income or his net
income. As noted above, Tennial, who claims to be an experienced former
investigator, should know what his monthly salary is, whether gross or net. In
addition, Tennial signed a declaration under penalty of perjury stating that the
information he provided to the court on his in forma pauperis application form was
true and correct. Once again, as a former investigator and a current staff member of
the AG’s Office who claims he is still qualified for a position as an investigator in
the AG’s Office, Tennial should know that such a declaration is not mere words, but
carries with it serious consequences if the information provided is false. See
Thomas, 288 F.3d at 306-07 (stating that “[d]ismissal with prejudice may [be] the
only feasible sanction for this perjury designed to defraud the government[, since
d]ismissal without prejudice would [be] no sanction at all”). The court finds that
Tennial’s misrepresentations to the court and omissions on his in forma pauperis
application form relating to his financial status were significant. Therefore,
Defendants’ motion to dismiss with prejudice is granted. Having dismissed the
instant action, the court need not consider Defendants’ other arguments in support of

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their motion to dismiss.

CONCLUSION
Based on the foregoing analysis, the court grants the motion to dismiss.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge

Dated: January 30, 2012

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