McGhee, Laderian v. Suliene, Dalia et al
Filing
75
ORDER denying defendants' 59 Motion to Dismiss. Signed by District Judge Barbara B. Crabb on 4/12/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - LADERIAN McGHEE,
OPINION AND ORDER
Plaintiff,
15-cv-258-bbc
v.
DALIA SULIENE and KAREN ANDERSON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Plaintiff and prisoner Laderian McGhee is proceeding on a claim that healthcare staff
at the Columbia Correctional Institution failed to provide him adequate medical treatment
for his seizures, in violation of the Eighth Amendment and state negligence law. Defendants
Dalia Suliene and Karen Anderson have not sought summary judgment on the merits, but
they ask the court to dismiss the case on two procedural grounds. Dkt. #59.
First, they say that, when plaintiff submitted his request to proceed in forma pauperis
nearly two years ago, he lied about his financial status. Second, they say that plaintiff’s
claim in this case is barred by the settlement agreement in McGhee v. Suliene, No. 13-cv-67bbc (W.D. Wis.).
Although defendants missed the deadline for filing dispositive motions and they did
not explain why they waited so long to file a motion that they could have filed as early as
August 2015, Magistrate Judge Stephen Crocker allowed briefing on the motion and plaintiff
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did not object to the timeliness of the motion in his opposition brief.
Dkt. #63.
Accordingly, I do not consider whether defendants’ motion is untimely.
In an order dated March 22, 2017, dkt. #72, I rejected defendants’ second argument
because the settlement agreement in case no. 13-cv-67-bbc was limited to issues related to
plaintiff’s shoulder.
However, I deferred a decision regarding plaintiff’s alleged
misrepresentation because defendants had cited new evidence in their reply brief and I gave
plaintiff an opportunity to respond.
Now that I have reviewed all of the parties’ submissions, I conclude that defendants
have failed to show that plaintiff engaged in sanctionable conduct. Accordingly, I am
denying the motion to dismiss.
OPINION
Defendants’ request for sanctions has two prongs. First, defendants say that dismissal
of the case is required because plaintiff made a false claim of poverty in his request to proceed
in forma pauperis. 28 U.S.C. § 1915(e)(2)(A) (“[T]he court shall dismiss the case at any
time if the court determines that . . . the allegation of poverty is untrue.”). Second,
defendants say, even if plaintiff qualifies for pauper status under § 1915, the court should
exercise its discretion to dismiss this case as a sanction because plaintiff’s affidavit of
indigency contains a false statement.
In their opening brief, defendants alleged that plaintiff under-reported his assets by
$5000, which was the amount of the settlement he received in case no. 13-cv-67-bbc.
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Although they acknowledged that $5000 generally is not enough to lift someone out of
pauper status, they argued that prisoners are different from most litigants because the state
pays for most of their living expenses.
Alternatively, defendants argued that a false
statement in an affidavit of indigency is still an appropriate ground for dismissal under the
court’s inherent authority, even if dismissal is not required by § 1915(e)(2)(A).
In his opposition brief and supporting declarations, plaintiff denied that he had made
false statements in his affidavit of indigency. First, he acknowledged that he settled case no.
13-cv-67-bbc for $5000 and that he did so so before he submitted his financial information
for this case to the court. However, he said he was not supposed to receive that settlement.
Rather, as shown by a letter submitted from defense counsel in the earlier case, dkt. #65-1,
the settlement check was written sent to his mother. Both plaintiff and his mother averred
that their intent was for the money to be used for a debt his mother owed and expenses for
plaintiff’s daughter. Dkt. #65, ¶ 7; dkt. #66, ¶¶ 3-5.
The potential problem with plaintiff’s story is that he received two electronic transfers
from his mother—one for $300 and one for $400—around the same time that he sent his
financial information to the court, but he included neither of those deposits in his affidavit
of indigency. Plaintiff’s explanation for that is that, at the time he sent his financial
information to the court, he was not aware that he would be receiving those deposits.
Timing is key. Plaintiff says he mailed his financial information to the court on April
28, 2015, dkt. #65, ¶ 14, but he did not know about the deposits to his account until he
received receipts from prison staff, which occurred on April 29, 2015, and May 3, 2015.
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(Neither plaintiff nor defendants provided copies of those receipts to the court.) Both
plaintiff and his mother aver that she did not tell plaintiff in advance that she would be
sending him that money. Dkt. #65, ¶ 11; dkt. #66, ¶ 6.
If this account is true, plaintiff did not engage in any sanctionable conduct. Although
defendants suggest that plaintiff gave money to his mother to avoid paying his filing fee, they
cite no evidence for that view. They also cite no authority for the view that plaintiff should
have reported a settlement he did not believe he was going to receive.
Defendants do not argue that plaintiff was required to amend his financial disclosures
if he did not learn about the deposits until after he sent his information to the court. I see
no reason why he would have been required to do so. The court’s financial form that
plaintiff completed does not instruct the prisoner to amend his financial information if his
circumstances change after he mails the form to the court. Further, if plaintiff had informed
the court about the deposits, that information would not have changed anything. A deposit
of several hundred dollars would not be enough to disqualify a prisoner from proceeding in
forma pauperis. Although that amount of money could make a difference in calculating a
prisoner’s initial partial payment of the filing fee, the court does not rely on a prisoner’s selfreporting when making that calculation. Rather, the court relies on the prisoner’s trust fund
account statement from the previous six months, a document prepared by prison staff. In
this case, plaintiff submitted his trust fund account statement with his affidavit of indigency,
so it did not include more recent information. Dkt. #4.
Defendants’ primary argument in their reply brief is that plaintiff is lying when he
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says that he was not aware of the new deposits when he sent his financial information to the
court. They cite no documentary evidence showing that plaintiff received notice of the new
deposits before he submitted his financial information to the court and they do not dispute
plaintiff’s averment that he did not receive receipts for the new deposits until after he
submitted his financial information. However, they rely on purchases he made around the
same time as circumstantial evidence of what he knew. In particular, they cite documents
showing that plaintiff had only $18.76 in his account before he received the money from his
mother, but that he purchased $80 in canteen items on April 27, 2016 and placed an order
with a third-party vendor for $144 on April 28, 2016. Dkt. ##68-3, 68-4 and 68-5. (The
documents do not identify what the items were and defendants do not otherwise provide the
missing information.) Defendants say that plaintiff would not have made those purchases
unless he knew that more money was coming. Because defendants had not included this
evidence with their opening brief, I gave plaintiff an opportunity to respond.
In a declaration accompanying his surreply brief, plaintiff acknowledges that he
placed the orders that defendants cited, but he stands by his previous testimony that he did
not know that he was going to be receiving any additional money at the time he placed the
orders. Rather, he avers that, on April 26 or 27, 2015, he told his father that he needed
money to purchase several items. Dkt. #74, ¶ 5. (Plaintiff does not identify what the items
were.) Plaintiff’s father told plaintiff to “go ahead and place the orders and he would see
what he could do about getting [plaintiff] money.” Id. at ¶ 6. Plaintiff was skeptical of his
father’s representation because his father “has failed to follow through on his promises time-
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and-time again,” id. at ¶ 12, but plaintiff decided to place the orders anyway because he “had
nothing to lose by placing the orders. Either way, [he] would still receive $18.76 in canteen
items, which is the amount [he] knew [his] trust account contained.” Id. at ¶ 14. Because
of the uncertainty about whether his father would give him the money, he decided not to
disclose any potential gift on his affidavit of indigency. Id. at ¶ 15.
Although plaintiff’s explanation may leave some room for doubt, I conclude that
defendants have not met their burden to show that plaintiff has engaged in sanctionable
conduct. Perhaps one could argue that if plaintiff was confident enough to make a purchase,
he should have been confident enough to disclose the additional funds on his affidavit of
indigency. However, it is one thing to say that plaintiff should have erred on the side of
disclosure; it is quite another to say that plaintiff’s case should be dismissed as a sanction
because he failed to do so. Defendants have not submitted any evidence that plaintiff
actually knew that he had received additional money by the time he mailed his financial
information. I decline to hold that a prisoner must anticipate money that he may receive
in the future or risk dismissal of his claims.
In sum, the evidence defendants have submitted does not show that plaintiff made
false statements in his affidavit of indigency. Accordingly, I am denying defendants’ motion
to dismiss.
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ORDER
IT IS ORDERED that the motion to dismiss filed by defendants Dalia Suliene and
Karen Anderson, dkt. #59, is DENIED.
Entered this 12th day of April, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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