Washington v. M. Rodrigue & Son, Inc.

Filing 34

ORDER granting 30 Motion to Dismiss Case. Signed by Judge Martin L.C. Feldman on 4/29/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAY CHARLES WASHINGTON

CIVIL ACTION

v.

NO. 12-938

M. RODRIGUE & SON, INC.

SECTION "F"
ORDER AND REASONS

Before the Court is the defendant's motion to dismiss for
fraudulent statements on pauper affidavit.

For the reasons that

follow, the motion is GRANTED.
Background
This Title VII lawsuit arises from an employee's complaint
that he was subjected to a racially hostile work environment and
retaliation.
On April 11, 2012 Ray Charles Washington instituted this
lawsuit against M. Rodrigue & Son, Inc. by filing with the Court an
application to proceed without prepaying fees or costs.

This

application, or pauper affidavit, as it is known, is made expressly
subject

to

penalty

of

perjury

and

dismissal

of

his

claims.1

Washington completed and signed the Pauper Affidavit, representing

1

Above the signature line on the Pauper Affidavit, it
states: "Declaration: I declare under penalty of perjury that the
above information is true and understand that a false statement may
result in dismissal of my claims."
1

to the Court under oath that he is indigent and unable to pay costs
and

fees;

included

in

the

affidavit

are

representations

by

Washington concerning his income, assets, expenses, dependents, and
general

financial

status.

Based

on

his

pauper

application,

Magistrate Judge Shushan granted Washington leave to proceed in
forma pauperis and his Title VII complaint was entered into the
record on April 13, 2012.
After the magistrate judge denied the plaintiff's request to
appoint counsel and after the defendant filed its answer to the
complaint, the Court granted the plaintiff's motion to enroll
private counsel.

But after a scheduling order was issued and the

defendant's motion to compel discovery responses was granted in
part

and

denied

in

part,

plaintiff's

counsel

withdrew

from

representing the plaintiff. No counsel has been substituted in her
place.
The defendant now requests dismissal of Washington's lawsuit
on the ground that discovery has revealed that he made fraudulent
statements on his pauper affidavit.
I.
District courts may authorize litigants to proceed in a
lawsuit without paying any fees if they submit an affidavit
disclosing

all

of

inability to pay.

their

assets

and

their

28 U.S.C. § 1915(a)(1).

reasons

for

their

However, 28 U.S.C. §

1915(e)(2)(A) calls for dismissal of a claim if at any time it is

2

discovered that a plaintiff's allegations of poverty are untrue:
(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.
28 U.S.C. § 1915(e)(2)(A).2

Thus, a case must be dismissed if it

is determined that a plaintiff's allegations of poverty are untrue:
[C]ourts "shall dismiss" a case upon finding an
allegation
of
poverty
is
false,
28
U.S.C.
§
1915(e)(2)(A), or "the action ... is frivolous or
malicious," 28 U.S.C. § 1915(e)(2)(B)(I), or the
complaint "fails to state a claim on which relief may be
granted," 28 U.S.C. § 1915(e)(2)(B)(ii). Importantly, §
1915(e)(2) is phrased in mandatory rather than permissive
terms....
Castillo v. Blanco, 330 Fed. Appx. 463, 466 (5th Cir. 2009); see
also Thomas v. GMAC, 288 F.3d 305 (7th Cir. 2002).

The statute is

silent as to whether dismissal for false poverty allegations should
be with or without prejudice.

Courts that have addressed this

issue have concluded that dismissal with prejudice under 28 U.S.C.
§ 1915(e) is within the Court's discretion and, indeed, warranted
when there is evidence of bad faith, manipulative tactics, or
litigiousness. See Castillo, 330 Fed. Appx. at 466-67 ("Though the
statute is silent as to whether this dismissal should be with or

2

The predecessor statute, 28 U.S.C. § 1915(d), stated
that a court "may dismiss [a] case [brought in forma pauperis] if
the allegation of poverty is untrue, or if satisfied that the
action is frivolous or malicious."
Humphries v. Various ISINS
Employees, 164 F.3d 936, 940 n.4 (5th Cir. 1999). However, Congress
amended the statute to make dismissal mandatory, rather than
permissive. 28 U.S.C. § 1915(e)(2)(A)(providing that "the court
shall dismiss"...).
3

without prejudice, we noted that cases are appropriately dismissed
with prejudice when 'evidence exists of bad faith, manipulative
tactics, or litigiousness'")(citing Lay v. Justices-Middle District
Court, 811 F.2d 285, 286 (5th Cir. 1987)); Thomas v. GMAC, 288 F.3d
305 (7th Cir. 2002)("Dismissal with prejudice may have been the only
feasible

sanction

for

this

perjury

designed

to

defraud

the

government"); Camp v. Oliver, 798 F.2d 434 (11th Cir. 1986).
II.
The defendant seeks dismissal of Washington's complaint on the
ground that discovery has revealed that Washington has made overt
false representations and deceitful omissions that are sufficiently
egregious to warrant the mandatory dismissal of his case with
prejudice, as a penalty for defrauding the Court and as a deterrent
of future conduct.

The plaintiff opposes the motion, asserting

simply that he "reaffirms that the information contained in the
Pauper Affidavit is true and correct to the best of his knowledge."
The defendant submits record evidence that it says supports a
finding that Washington was untruthful with the Court regarding his
available

income,

real

estate

ownership,

vehicle

ownership,

business interests, status of dependents, and alleged debts.

For

example, the defendant first challenges Washington's truthfulness
in answering Question 3 of the Pauper Affidavit.

Question 3 asked

whether Washington had "in the past 12 months...received income"
from any source. Washington answered "no" for every source listed,

4

except that for income from "[a]ny other sources", he answered
"yes", explaining that he received unemployment benefits that
"ended as of February 2012."

But the defendant submits that

Washington's answer was incomplete and untruthful because he failed
to disclose that during the 12 months prior to filing his Pauper
Affidavit (between February 7, 2011 and July 28, 2011) he had in
fact received compensation from the defendant in the amount of
$18,672.50 and from Furnace and Tube Service, Inc. (in October
2011) in the amount of $6,068.

The record confirms that the

plaintiff was untruthful in his affidavit.
The defendant next points out that Washington also failed to
disclose in his Pauper Affidavit that, during the relevant period,
his wife was continuously receiving $46,000 annually as an employee
of the U.S. Customs and Border Protection Services. This omission,
the defendant suggests, is particularly egregious because at the
same time Washington deliberately omitted his wife's salary from
his

available

income,

he

deceptively

included

Affidavit his and his spouse's joint debts.
confirms

that

Washington,

in

fact,

in

his

Pauper

The record evidence

omitted

from

his

Pauper

Affidavit his wife's income.
The defendant also challenges the truthfulness of Washington's
response to Question 5, which asks whether Washington owned, among
other

things,

"[a]ny

automobiles,

real

estate,

stock,

bond,

security, trust, jewelry, art work, or other financial instrument

5

or thing of value..., including any item of value held in someone
else's name." In response, Washington listed only one item: "2003
Mazda Truck valued at $800.00".

This is untruthful, insists the

defendant, because Washington failed to disclose that he also owned
(1) a tract of real estate with a 3,600 square foot residence at
19489 Lemon Street, Vacerie, Louisiana, which had an appraised
value of approximately $250,000, an initial mortgage of $185,000,
an initial mortgage loan balance of approximately $148,000, and a
current mortgage loan balance of approximately $140,000; (2) a 2011
Chevrolet Cruz; (3) a 2007 Honda Accord; and (4) the sole ownership
of his own general construction contracting company known as Sugar
Ray Construction, L.L.C.

Again, the fact that Washington's Pauper

Affidavit omitted any reference to these other items of value is
confirmed by the record evidence submitted by the defendant.
Next, the defendant points out that Washington was untruthful
in answering Question 7, which asked him to identify "all persons
who are dependent on [him] for support, [his] relationship with
each person, and how much [he] contribute[s] to their support."
Washington listed his 17 year old step-daughter and his 12 year old
step-son as dependent upon him for "100%" of their support.

That

is untruthful, the defendant contends, because those two children
are not dependent upon him for their support.

Washington now

admits, the defendant points out, that the children were not
entirely supported by him but, rather, by his wife's $46,000 salary

6

and one child's biological father.
Finally, the defendant points out that Washington claimed
joint expenses and debts as his own.

These joint expenses and

debts include the regular monthly household expenses he listed in
his answer to Question 6, but also listed in his answer to Question
8, which included the two loans from River Region Federal Credit
Union, the loan from Republic Finance, the loan from Tower Loan,
the loan from Advantage, and the loan from St. James Credit (which
was solely in Washington's wife's name). Considered in the context
of Washington's exclusion of his wife's income from the Pauper
Affidavit, the defendant contends, the inclusion of these joint
debts on his Pauper Affidavit further undermine the truthfulness of
his Pauper Affidavit.

The Court agrees.

Based on the defendant's record evidence, the defendant has
more than amply proved that the plaintiff's allegations of poverty
are

demonstrably

misleading

untrue.

information

in

The

plaintiff

his

Pauper

presented

Affidavit;

false

his

and

perjury

mandates dismissal of his Title VII lawsuit, with prejudice.3
Accordingly, IT IS ORDERED: that the defendant's motion to dismiss
is GRANTED; the plaintiff's complaint is hereby dismissed with

3

Not only has the plaintiff failed to rebut the evidence
submitted by the defendant, but he likewise fails to suggest that
the defendant's evidence is unreliable, and fails to explain his
false and inconsistent statements. In fact, most of the record
evidence consists of plaintiff's own admissions in his responses to
interrogatories,
disclosures,
and
questioning
during
his
deposition.
7

prejudice.
New Orleans, Louisiana, April 29, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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