Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00583—Gl\/IS Document 66-2 Filed 08/15/2005 Page 1 of 2
LEXSEE 2004 U.S. DIST. LEXIS 16933
ROGER ATKINSON, Plaintiff, v. Correctional Officer FRED WAY, Defendant.
Civil Action No. 99-562 JJF
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
2004 U.S. Disc LEXIS 16933
August 25, 2004, Decided
PRIOR HISTORY: Atkinson v. Way, 2004 US Dist. in favor of Plaintiff and against Defendant, Correctional
LEXIS 13702 (D. Del., July 19, 2004) Officer Fred Way. The jury found that Defendant vio-
lated Plaintiffs constitutional rights causing Plaintiff
DISPOSITION: [*1] Defendants motion to dismiss injury. [*2] The jury awarded Plaintiff $ 85,000 in
denied. compensatory damages and S 15,000 in punitive dam-
pages. (Dil. 162, 163.) The juryfalmniieturried verdicts in
LexisNexis(R) Headnotes avor 0 the remaining De en ts, Commissioner
Stanley Taylor, Warden Raphael Williams, Major Perry
Phelps, Sgt. Philip Parker, and Cpl. Green. During cross-
COUNSEL: Richard I-I. Morse, Esquire of YOUNG examination, Plaintiff provided several responses dem-
CONAWAY STARGATT & TAYLOR, LLP, Wilming- onstrating that tluee ofthe answers on his affidavit were
ton, Delaware. Attorney for Plaintiff untrue. Based on these misrepresentations, Defendant
seeks dismissal of this action.
Gregory E. Smith, Esquire, Deputy Attorney General,
STATE or DELAWARE DEPARTMENT or DISCUSSHDN
JIIJIETICE, Wilmington, Delaware. Attomey for Defen- L Parties, contentions
Defendant contends that the Court must dismiss this
.lUDGES: JOSEPH J. FARNAN, JR., UNITED action pursuant to 28 USC. § 1915(e) (2) (A) because
STATES DISTRICT JUDGE. Plaintiff made three false statements in his affidavit in
support of his allegation of poverty. Defendant maintains
OPINIONBY: JOSEPH J. FARNAN, JR. that the word "shall" in 28 US. C. § 1915(e) (2) (A)
mandates dismissal in these circumstances, and that the
OPINION: only discretion left to the Court is whether to dismiss this
MEMORANDUM OPINION action with prejudice.
Plaintiff responds that, despite any "errors" in his af-
Wilmington, Delaware fidavit, his allegation of poverty was true. Plaintiff con-
tends that Defendant has not demonstrated that he en-
Farnan, District Judge. gaged in conscious or [*3] intentional acts or omissions
p......¤, ba.... .1.. com is at Mm. To Dt....... gg; rggrjy·g;;¤;,;g;¤·;;¤*,L§;1;1ggf{,c¤gjj;j; ·gg;¤g·;g;
Under 28 USC. § 1915 filed by Defendant. (D.I. 170.) ’ . . p . .
. . prevented the errors m his affidavit, which was prepared
For the reasons discussed, the Court will deny the Mo- b th b h bl th f
mm y o ers, ecause e was una e to read e crm.
BACKGROUND II. Applicable Legal Standards
Plaintiff filed the Complaint in this action on August Pursuant to 28 USC. § 1915, a court "may author-
20, 1999, along with an "application to proceed without ize the commencement of any suit, action or proceed-
prepayment of fees and affidavit" (the "affidavit"). The ing, civil or criminal without prepayment of fees or
Court granted Plaintiffs application to proceed without security therefor, by a person who submits an affidavit
payment and, following trial, the jury returned a verdict that the person is unable to pay such fees or give security

Case 1:04-cv-00583—Gl\/IS Document 66-2 Filed 08/15/2005 Page 2 of 2
Pa e 2
2004 U.S. Dist. LEXIS 16933, * g
therefor." The statute further provides that "the court 1999, as dismal to the extent of preventing him from
shall dismiss the case at any time if the court determines being able to reasonably sustain the financial burdens of
that (A) the allegation of poverty is untrue[.]" 28 litigating this matter.
iif‘$g£stii]Zi°LEii.$y"s$ iiZii.'isii“i§i In ;<[<1i*g<2¤». th; ,999*, =··=9· Mgt fjtggitff that it-
mandatory language of Section 1915 requires that a court cause 0 . is llmmii . msnglg .gl1€&nS’ c ,26 mls mom;
dismiss tim suit. Thomas it Gmc 288 me 205, 500 [;°°“S°‘°“S Y "‘“ “? a “‘ ““°‘“p‘[ 1 ‘° °°“°°
(ml Cir- 2002)- I e true amount of his finances. (D.I. 173 at 2.) Ptccord-
mgly, the Court views this case to be distinguishable
IH Decision hom the Seventh Circuit‘s approval of the district court's
` dismissal in Thomas v. GM4C, 288 F.3d 305 (7th Cir.
Although Section 1915 mandates dismissal of the 2002), where the district court dismissed the action based
lawsuit if an affiant's assertion of poverty is not [*4] on the plaintiffs failure to disclose that he had received a
true, a court is not required to dismiss provided the true $ 73,714 distribution from a retirement account. Id at
facts demonstrate that the affiant is sufficiently poor to 306-07. nl
qualify for in forma pauperis status. Lee v. McDonald's
Corp., 23] E3d 456 459 (8th Cir. 2000); Hobbs v.
County of Westchester, 2002 US. Dist. LEXIS 8029, N0. nl The Court also concludes that Romes-
00 Civ. 8170 USM, 2002 WL 868269, *2 (S.D.N.Y. but- v. Trio , 908 1Q2d 258 Sth Cir. 1990 ,
May 3, 2002). This interpretation of Section 1915 is con- doe? not cotiiilel a contrary conglusion because
sistent with the plain language of the statute, Hobbs, the district court in Romesburg found that the
2002 US Dist. LEXIS 8029, 2002 WL 868269, *2 (not- plaintiffs omissions in his affidavit were "con—
ing that Section 1915 mandates dismissal only if the "al- scious, deliberate, and intentional," a finding that
legation of poverty is untrue"), and the purpose of the the Court concludes is not supported by the facts
statute in '"weed[ing] out the litigants who falsely under- in this case.
state their net worth in order to obtain in forma pauperis
status when they are not entitled to that status based on I . . ,, ,,
msit sis net ssms.··· sa, isi ssa at rss (quoting ¤ Sue although Plimttfts =·?<¤== is mi *0 ¤=
Atwood V. Smglemm 105 E36, 6m' 6*,3 (1 I th Cir- condoned, the Court concludes that, in the circumstances
1,997) (imm quotations Omit, B (1)). of this case, dismissal would be an unduly harsh result,
particularly [*7] because, m the Court's view, Plamtiffs
In his afiidavit, Plaintiff made three misrepresenta- true fmancial status would not have precluded him from
tions. On question 2(b), Plaintiff answered that he had being able to proceed in this case without payment. Ac-
been self-employed from January 5, 1995, until the date cordingly, the Cotut will deny Defendant's Motion.
he signed the affidavit, February 3, 1999. However, on
cross-examination, Plaintiff [*5] conceded that this an- CONCLUSION
swer was incorrect. (Trial Transcript at 29-30.) On ques- For the reasons discussed, the Court will deny De-
tion 3, Plaintiff answered "no" to the question of whether foodoofs Motion, (1)_]_ ]7()_)
he had received disability or workers' compensation _ _
payments. This answer was also incorrect, as demon- A¤¤¤¤t¤¤t·¤*·=0*d=*w=1*b==¤¤*¤1¤d-
strated by his testimony on cross-examination. Id. at 30. QRDER
Finally, on question 4, Plaintiff represented that he had _ _ _
five dollars in his savings account and no money in his Al W'lm{°gt°“¤ this 25th day sf Augush 2094* is
checking ssssmt. nswsssi, according is s mm state- its 1¤¤»$~¤¤== ·¤S==¤SS¤<* 1¤ the M<=m¤1¤¤di·¤¤ 0¤i¤=<>¤ is-
ment stttsmittsti by nsrsmism, ss sr ivistsn za, 1999 (tits *`·“°" mls dm?
date Plaintiff signed the affidavit), Plaintiff had $ IT IS HEREBY QRDERED [1-mtDcfcnda_nt's Motion
1.043-06i¤hiSs¤vi¤sS¤¤¤9¤¤t-(D-I-170.Ex-€¤t4-) To Dismiss Under 28 usc. § 1915 (D1. 170) is
Alter considering Plaintiffs misrepresentations, his DENIED
actual fmancial status at the time of filing, and the harsh- JOSEPH ]_ FARNAN’ ]R_
ness of dismissal, the Cotut concludes that dismissal is
not warranted in the circumstances of this case. The UNITED STATES DISTRICT JUDGE
Court views Plaintiffs financial status as of March 28,

Case 1:04-cv-00583-GMS

Document 66-2

Filed 08/15/2005

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Case 1:04-cv-00583-GMS

Document 66-2

Filed 08/15/2005

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