Conway v. Butler et al

Filing 12

ORDER DISMISSING CASE with prejudice under § 1915(e)(2)(A) as a sanction against Plaintiff for attempting to commit a fraud on the Court, denying, 2 MOTION for Leave to Proceed in forma pauperis filed by D A Carlos Conway. IT IS ALSO ORDERED that Plaintiff is restricted from filing any new civil actions in this Court until such time as his outstanding fees of $1,009.15 have been paid in full. Signed by Judge Michael J. Reagan on 11/19/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
D. A. CARLOS CONWAY, # M-01100,
Plaintiff,
vs.
KIM BUTLER, RICK HARRINGTON,
OFFICER LINDENBERG,
UNKNOWN MAILROOM STAFF,
and OFFICER SHIELDS,
Defendants.

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Case No. 13-cv-01093-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
This matter is before the Court on a motion for leave to proceed in forma pauperis
(“IFP”) brought by Plaintiff D. A. Carlos Conway (Doc. 2). Plaintiff, an inmate at Menard
Correctional Center (“Menard”), seeks leave to proceed IFP in this case without prepayment of
the Court’s usual $350.00 1 filing fee in a civil case. See 28 U.S.C. § 1914(a). Pursuant to
28 U.S.C. § 1915, a federal court may permit a prisoner who is indigent to bring a “suit, action or
proceeding, civil or criminal,” without prepayment of fees upon presentation of an affidavit
stating the prisoner’s assets together with “the nature of the action . . . and affiant’s belief that the
person is entitled to redress.” 28 U.S.C. § 1915(a)(1). However, Plaintiff’s motion is also
subject to 28 U.S.C. § 1915(e)(2)(A), which requires the Court to “dismiss the case at any time if
the court determines that . . . the allegation of poverty is untrue.” The latter statutory provision
dictates the outcome of Plaintiff’s IFP motion and the fate of this case.
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Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.

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IFP Motion
Under penalty of perjury, Plaintiff claims to be indigent in his IFP motion
(Doc. 2, p. 1). In the same motion, Plaintiff admits to receiving income during the past twelve
months from a “business, profession, or other self-employment,” but he fails to disclose the
source, nature, or amount of this income. Although Plaintiff includes a handwritten balance
sheet with the motion, Plaintiff does not refer to it in the motion or explain it in any way.
Plaintiff admits to receiving “gifts or inheritances” within the past twelve months, but fails to
disclose the source or amount. Curiously, Plaintiff goes on to disclose the following expenses:
(1) promotional fees of $25,000/month; (2) advertising fees of $45,000/month; (3) venue costs of
$100,000/month; and (4) wages of $8,325,212/year (Doc. 2, p. 2). Plaintiff also claims to
contribute $57,000/month toward the support of his five children, although he does not claim that
this contribution constitutes court-ordered child support.
This is not the first IFP motion that Plaintiff has filed with this Court. In a prior
IFP motion, Plaintiff disclosed an ownership interest in four commercial properties in New York
and New Jersey (i.e., “Trump Towers, Armani Flagship and Enigma Clothing”), while also
claiming to be impoverished. See Conway v. Atchison, et al., No. 12-cv-662-MJR (S.D. Ill. May
25, 2012) (Docs. 2, 9). It is unclear whether the income Plaintiff now claims to receive from a
“business, profession, or self-employment” is related in any way to his interest in these
commercial properties.

It is also unclear whether the “gifts or inheritances” Plaintiff has

received this past year are tied to this commercial real estate. The Court does not know because
Plaintiff chose not to provide this information. What is clear is that Plaintiff has provided the
Court with contradictory and misleading information regarding his financial status.

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Discussion
The Court finds that Plaintiff’s IFP application contains false allegations of
poverty on its face, warranting dismissal of this action. The Seventh Circuit has made it clear
that “[a] pleader may assert contradictory statements of fact only when legitimately in doubt
about the facts in question.” Am Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1461 (7th Cir.
1996). Plaintiff neither expresses nor appears to be in any doubt about his income, assets, debts,
or obligations. His failure to disclose certain income, gifts, inheritances, or property ownership
therefore appears to be intentional, misleading, and false. Under § 1915(e)(2)(A), the Court must
dismiss Plaintiff’s lawsuit. See Thomas v. GMAC, 288 F.3d 305, 306 (7th Cir. 2001) (citations
omitted) (explaining that where the “allegation of poverty was false, the suit had to be dismissed;
the judge had no choice”). The Court’s authority to order dismissal as a sanction for filing a
false IFP application is “beyond question.” Id.
Further, this dismissal shall be with prejudice. Whether a dismissal based on a
false IFP application is with or without prejudice remains entirely within the district court’s
discretion. See Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1997). Because the
purpose of the IFP application is to encourage forthrightness and discourage fraud, dismissal
with prejudice is widely considered an appropriate sanction for attempting to commit IFP fraud.
See, e.g., Thomas, 288 F.3d at 306. The Court dismissed the last action Plaintiff filed in this
Court as a sanction for submitting a false affidavit of poverty. See Conway v. Atchison, et al.,
No. 12-cv-662-MJR (S.D. Ill. May 25, 2012) (Doc. 9). That dismissal did not deter Plaintiff
from filing another false IFP application. The Court therefore considers a dismissal without
prejudice to be no sanction at all. Accordingly, this action shall be dismissed with prejudice.

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Given Plaintiff’s persistent abuse of the IFP process, further sanctions are
necessary to deter Plaintiff’s misconduct. See In re City of Chicago, 500 F.3d 582, 582 (7th Cir.
2007); see also Campbell v. Clarke, 481 F.3d 967, 969 (7th Cir. 2007) (approving the district
court’s decision to treat “a prisoner who tries to evade the payment of fees . . . as if he had
‘struck out’ under 28 U.S.C. § 1915(g) by filing three or more frivolous suits or appeals”). In
determining the most appropriate sanction, the Court notes that Plaintiff has accumulated unpaid
filing fees of $1,009.15 in multiple actions he has filed in this Court alone. 2 Therefore, Plaintiff
shall be barred from proceeding in forma pauperis under the Prison Litigation Reform Act
(“PLRA”) until all of the fees for Plaintiff’s past and pending litigation are paid in full. See In re
City of Chicago, 500 F.3d at 583. This means that Plaintiff must pay the full filing fee and
docket fees for the complaint and any appeal taken in this matter. Moreover, by attempting to
deceive the district court, Plaintiff has forfeited the privilege of proceeding in forma pauperis in
any other case until he has paid, in full, the outstanding fees and costs for all of his federal
lawsuits. See id. (citing Campbell, 481 F.3d 967).
For the reasons given in Campbell and In re City of Chicago, this Court will enter
an order under Support Systems International v. Mack, 45 F.3d 185 (7th Cir. 1995), to remain in
full force until all fees and costs from all of Plaintiff’s federal lawsuits have been paid. Should
Plaintiff wish to have the Mack order lifted, he must submit an application in writing to this
Court and provide (under oath) a complete list of all his federal suits and proof that he has
satisfied his full financial obligations with respect to each. See In re City of Chicago, 500 F.3d at
583.
2

In addition to the $400.00 filing fee Plaintiff now owes in this matter, Plaintiff has accumulated unpaid
filing fees in the amount of $350.00 in Conway v. Atchison, et al., No. 12-cv-662-MJR (S.D. Ill. May 25,
2012) and $259.15 in Conway v. Rednour, et al., No. 11-cv-506-MJR (S.D. Ill. June 14, 2011), for a total
of $1,009.15.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed IFP
(Doc. 2) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice
under § 1915(e)(2)(A) as a sanction against Plaintiff for attempting to commit a fraud on the
Court.
IT IS ORDERED that all pending motions (Docs. 3, 6, 10, and 11) are DENIED
as moot.
IT IS ALSO ORDERED that Plaintiff is restricted from filing any new civil
actions in this Court until such time as his outstanding fees of $1,009.15 have been paid in full.
This filing restriction does not extend to a notice of appeal from this Order, to the filing of any
petition for a writ of habeas corpus, or to pleadings filed as a defendant in another criminal or
civil case. Plaintiff may seek reconsideration of this Order by filing a motion in this Court no
earlier than two years from the date of entry of this Order.
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4). If Plaintiff does
choose to appeal, he will be liable for the $455.00 3 appellate filing fee irrespective of the
outcome of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger,
547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, because this Court is treating
Plaintiff as though he “struck out,” this Court will not grant him permission to proceed in forma
pauperis on appeal. Finally, if the appeal is found to be nonmeritorious, Plaintiff may also incur
a “strike.”
3

Effective December 1, 2013, this fee increases to $500.00.

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Should Plaintiff attempt to file any new action in this Court, the Clerk of Courts is
DIRECTED to return any documents submitted in violation of this Order to Plaintiff unfiled.
IT IS SO ORDERED.
DATED: November 19, 2013
s/ MICHAEL J. REAGAN
United States District Judge

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