Johnson v. Great Windows/ Next Day Blinds

Filing 144

MEMORANDUM AND ORDER denying 140 Motion to Alter/Amend Judgment. Signed by Judge William M Nickerson on 2/20/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROGER A. JOHNSON

v.

NEXT DAY BLINDS CORP. et al.

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Civil Action No. WMN-09-2069

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MEMORANDUM AND ORDER
On November 1, 2012, the Court dismissed this action
pursuant to 28 U.S.C. § 1915(e)(2)(A) and on the ground that
Plaintiff made false representations to the Court in his sworn
affidavit in support of his motion to proceed in forma pauperis.
Plaintiff has filed a motion seeking reconsideration of that
dismissal.

ECF No. 140.

Defendants opposed that motion, ECF

No. 141, and Plaintiff filed a reply in further support of his
motion, ECF No. 142.

The Court will deny the motion.

In urging the Court to reconsider its decision, Plaintiff
first argues that the undersigned’s decision was “inextricably
linked” to a decision of Magistrate Judge Gallagher to which he
was not permitted sufficient time to file objections.

In a

letter order dated October 18, 2012, Judge Gallagher held that
Plaintiff would not be permitted to file a surreply in further
opposition to Defendant’s motion to dismiss.

ECF No. 134.

As

one reason for her decision, Judge Gallagher noted that the bank
statements that Plaintiff sought to introduce through the
surreply should have been produced to Defendant pursuant to a
previous discovery order and that the Plaintiff’s proffered
justification for his failure to produce them in discovery was
insufficient.

She also noted that, under the Local Rules,

surreplies are highly disfavored and that Plaintiff offered no
explanation as to why the information in the proposed surreply
could not have been included in the opposition.
Plaintiff argues that his bank statements would have
provided evidence of his dwindling resources and thus undermined
the conclusion that his statements regarding his poverty in his
in forma pauperis (IFP) application were untrue.

The

undersigned, however, dismissed this action based upon
Plaintiff’s failure to disclose on his IFP affidavit
approximately $50,000 that he had received as salary in the
twelve months immediately prior to his completing the affidavit.
The undersigned also noted that Plaintiff failed to correct the
information in his IFP affidavit despite having been alerted to
the discrepancy in his deposition.

Plaintiff’s proffered bank

statements provide nothing to excuse his failure to declare his
substantial income which was the basis for the dismissal.
In his reply memorandum, Plaintiff raises new arguments, or
rather, variations of arguments raised in opposing the motion to
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dismiss.

Plaintiff again suggests that the forms provided by

the Court for him to complete “did [n]ot require Plaintiff’s
disclosure of his income for the preceding 12 months.”
142 at 1.

ECF No.

Because Question 1 asked questions related to the

applicant’s employment, Plaintiff concludes that Question 2 was
not seeking employment related income.

ECF No. 142 at 4.

Plaintiff readily acknowledges, however, that he failed to
answer the portion of Question 1 that clearly did ask about
monthly income from employment.

In an argument that is somewhat

difficult to follow, Plaintiff suggests that, because the
application states that “the Court will not consider [his]
Motion unless all of the questions are answered,” Plaintiff “was
on notice” that, because Plaintiff failed to fully complete his
application, his motion would not be considered.

Id. at 3.

In

the very next paragraph, however, Plaintiff admits that the
Court denied his motion.

Id.

In a related argument, Plaintiff suggests that, because the
Court denied his motion to proceed in forma pauperis, that
denial concluded any application of 28 U.S.C. § 1915 to his
case.

The statute provides, however, that “[n]otwithstanding

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 . . . the allegation of poverty is untrue.”
U.S.C. § 1925(e)(2)(A) (emphasis added).
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Thus, the statute

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remains applicable, despite the Court’s partial1 denial of
Plaintiff’s motion.
Accordingly, for these reasons and the reasons stated in
the Court’s memorandum dated November 1, 2013, IT IS this 20th
day of February, 2013, by the United States District Court for
the District of Maryland, ORDERED:
1) That Plaintiff’s Motion to Alter or Amend Judgment, ECF
No. 140, is DENIED; and
2) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

1

Based upon the information provided in Plaintiff’s application,
the Court reduced the filing fee by one half. Inexplicably,
Plaintiff suggests that the Court reduced the fee, “sua sponte,”
and draws the “inference” that it was not based upon the statute
but was, instead, “based on the Court’s own inherent powers.”
ECF No. 142 at 3. Notwithstanding Plaintiff’s unsupported
inference, the Court reduced Plaintiff’s filing fee based upon
the information provided by Plaintiff in his application.
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