Brainard v. U.S. Department of Homeland Security

Filing 14

Order Plaintiff's motion for leave to proceed in forma pauperis (Doc. 10 ) and Motion to Recognize, etc. (Doc. 9 be, and the same hereby are denied. Leave be, and the same hereby is granted to plaintiff to file and serve her complaint ; subject to the condition that, beginning on or before April 1, 2015, she shall pay $100 as and for the filing fee, and continue to pay such amount on the first of each month until the fee shall have been paid in full; failure to adhere strictly to this timetable shall result in dismissal of her complaint with prejudice. (Re: 10 , 3 , 9 ). Judge James G. Carr on 3/11/15. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mary Brainard,

Case No. 3:14CV1439

Plaintiff,
v.

ORDER

United States Department of Homeland Security,
Defendant.

This is a pro se employment discrimination action in which, pursuant to a prior order of
dismissal without prejudice (Doc. 7), the plaintiff has resubmitted an application for leave to proceed
in forma pauperis. (Doc. 10) and filed a related Motion to Recognize, etc. (Doc. 9).
The gravamen of both motions is that I should allow plaintiff to proceed in forma pauperis.
I disagree: plaintiff is employed with the agency that she claims has engaged in a course of
gender discrimination against her. She continues to receive her salary, which currently is $77,213.
In 2014 her gross salary, inclusive of overtime, was slightly in excess of $80,000.
Plaintiff’s extensive affidavit portrays her difficult, even desperate financial circumstances
due to her efforts to meet other obligations. Her doing so, however, reflects choices that she makes
while continuing to receive a substantial salary. Whether due to mismanagement, on the one hand,
or simply unanticipated, but substantial (and, possibly, ongoing) expenses on the other, the plaintiff
would quite possibly find it difficult to pay the filing fee.
But those facts do not overcome the fact that the fee is, in comparison with the plaintiff’s
income, very modest – perhaps ten to fifteen percent of a month’s net income from her job. It is not

at all unreasonable to expect her to make the investment that others in similar circumstances find the
wherewithal to make. She has a regular cash flow; it’s up to her to divert some of it to make the same
investment in her litigation that others in similar circumstances (including, on occasion, persons who
have lost their jobs) make at the outset of their lawsuit.
Moreover, and more importantly, I agree with the government that the plaintiff’s affidavit
about her circumstances is at best confusing, if not misleading – particularly with regard to her
statement of her income. I find, accordingly, that the affidavit the government has submitted is the
more reliable basis for adjudication of plaintiff’s application.
Missing from her otherwise fulsome description of her financial circumstances is a
straightforward statement of her monthly expenses and her assets and liabilities. It is neither the
government’s responsibility nor mine to try to parse her narrative to discern where her monthly
income goes.
I am persuaded, on consideration of all the circumstances, that plaintiff has the wherewithal
to prepay the filing fee. She is not indigent within the meaning of 28 U.S.C. § 1915.
I shall, however, grant leave to the plaintiff to file her complaint now (whereupon she must
cause service of summons, with a copy of the complaint to made on the proper official of the United
States government).
Once the complaint is filed, the plaintiff shall, beginning on or before April 1, 2015, pay $100
on that date and on the first of each subsequent month until she had made full payment of the filing
fee. Failure to adhere strictly to this timetable shall result in dismissal of her complaint with
prejudice.
It is, therefore

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ORDERED THAT:
1.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 10) and Motion to
Recognize, etc. (Doc. 9) be, and the same hereby are denied; and

2.

Leave be, and the same hereby is granted to plaintiff to file and serve her complaint;
subject to the condition that, beginning on or before April 1, 2015, she shall pay $100
as and for the filing fee, and continue to pay such amount on the first of each month
until the fee shall have been paid in full; failure to adhere strictly to this timetable
shall result in dismissal of her complaint with prejudice.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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