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Benjamin Waters v. Officer S. King

May 24, 2012


The opinion of the court was delivered by: Jesse M. Furman, District Judge:


Benjamin Waters, detained by the New York City Department of Correction ("DOC") on Rikers Island, brings this action, pro se, against DOC Officers Sophia King and Jane Doe alleging incidents of verbal and physical abuse that caused him to sustain an injury to his left foot. Defendant King moves to dismiss the complaint, pursuant to 28 U.S.C. § 1915(e)(2), on the ground that Waters made false statements in his Request to Proceed In Forma Pauperis ("IFP"). Specifically, King contends that Waters's complaint should be dismissed with prejudice because, in filing his IFP application, Waters failed to disclose that he had received $600 in the settlement of another case approximately three weeks earlier. Alternatively, King requests that Waters's IFP status be revoked.

For the reasons stated below, King's motion to dismiss is GRANTED, albeit without prejudice to Waters bringing a new suit within 60 days upon prepayment of the filing fee. Further, Waters is released from any remaining obligations to pay the filing fee for the instant case. More specifically, the Clerk of Court is directed not to charge Waters the $350 filing fee for this action, and the Warden or Superintendent having custody of Waters is ordered not to deduct or encumber funds from his prison trust account for this lawsuit and to return any funds already collected for this lawsuit.


On April 23, 2011, Waters commenced the instant suit by delivering his complaint and his IFP application to authorities at Rikers Island, where he was (and still is) detained. Question Three on the IFP application asked Waters if he had "received, within the past twelve months, any money from any source" and, if so, the name of "the source and the amount of money" received. (Docket No. 1). In response to that question, Waters wrote: "No, None." (Id.). He gave the same answer to Question Four, which asked if he had "any money, including any money in a checking or savings account." (Id.). The form included the following acknowledgment: "I understand that the Court shall dismiss this case if I give a false answer to any questions in this declaration. In addition, if I give a false answer I will be subject to the penalties for perjury." (Id.). Waters signed the form, declaring "under the penalty of perjury" that it was "true and correct." (Id.).

Despite Waters's declaration, the IFP form was not "true and correct." In particular, Waters failed to disclose that, approximately one month before, he had received a check for $600 in connection with the settlement of an earlier, unrelated lawsuit, Waters v. Rodriguez, No. 08 Civ. 8788 (AKH) (S.D.N.Y. Feb. 9, 2011). (Richards Decl. Ex. B). The check was dated March 18, 2011. (Id.). It was endorsed by Waters, but instead of being deposited into Waters's inmate trust account - which would have been reported to the Court and automatically used to pay the filing fees in this case - it was deposited into a credit union account. (Id.). A computerized notation on the back of the check indicates that the credit union cashed the check on March 31, 2011 - more than three weeks before Waters submitted his complaint and IFP application. (Id.).

As a result of this omission, King moved on December 7, 2011, to dismiss Waters's complaint with prejudice. (Docket No. 16). Waters responded in a letter to the Court dated December 16, 2011. (Docket No. 26). In his letter - which he referred to as a "sworn affidavit" even though it was not actually made under oath - Waters did not dispute that he had received the $600 payment or that he had failed to include it on his IFP application. Instead, he claimed that "there was no intentional fraud intend [sic]" because he had received the settlement payment "the same evening that the complaint was mailed earlier that day [sic]." (Id.) On the basis of that claim, Waters maintained that the complaint should not be dismissed. "In addition," Waters noted at the end of the letter, "when the attack on the plaintiff happened the very beginning of February 2011, at which time no funds were received or 12 months prior [sic]." (Id.).

On May 15, 2012, the Court held a telephone conference. Notably, when asked for an explanation of his failure to report the $600 payment on the IFP application, Waters did not initially repeat his claim that the payment had been received later on the same day that he had mailed the complaint and IFP application. Instead, Waters maintained that he had misunderstood Question Three on the IFP application to require disclosure of money received in the 12 months prior to the incident giving rise to the lawsuit - that is, the 12 months prior to February 5, 2011 - rather than the 12 months prior to filing the lawsuit. (Tr. of May 15, 2012 Conf. at 5, 8).


Under the in forma pauperis statute, a prisoner may apply to the Court for authorization to commence a lawsuit without prepayment of filing fees upon a showing that he or she is unable to pay the fees. See 28 U.S.C. § 1915(a)(2). The purpose of the statute "is to insure that indigent persons have equal access to the judicial system." Hobbs v. Cnty. of Westchester, No. 00 Civ. 8170 (JSM), 2002 WL 868269, at *1 (S.D.N.Y. May 3, 2002). To obtain IFP status, the prisoner must submit an affidavit that includes a statement of all assets the prisoner possesses. See 28 U.S.C. § 1915(a)(1). The prisoner must also submit a certified copy of his or her inmate trust fund account summary (or institutional equivalent) for the six months prior to filing of the complaint from each facility in which the prisoner is or was confined. See id. § 1915(a)(2). If IFP status is granted, the prisoner is still required to pay the filing fee, but he or she is permitted to pay it in installments from the prison trust account. See id. § 1915(b); see also, e.g., Vann v. N.Y.C. D.O.C.A. Comm'r, No. 10 Cv. 6777 (PKC), 2011 WL 3501880, at *1 (S.D.N.Y. Aug. 9, 2011); Cuoco v. U.S. Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y. 2004).

Even when a prisoner has paid some or all of the filing fee, Section 1915(e)(2) provides that "the court shall dismiss the case at any time if the court determines that . . . the allegation of poverty is untrue." The core purpose of Section 1915(e)(2)(A) "is not to punish litigants whose affidavits contain insignificant discrepancies, but to weed out the litigants who falsely understate their net worth in order to obtain in forma pauperis status when they are not entitled to that status based on their true net worth." Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990); accord Vann, 2011 WL 3501880, at *1. Thus, "[n]ot every inaccuracy in an affidavit of poverty, no matter how minimal, should be construed as a false allegation of poverty so as to cause loss of in forma pauperis eligibility and dismissal of the complaint." Camp v. Oliver, 798 F.2d 434, 438 n.3 (11th Cir. 1986); accord Vann, 2011 WL 3501880, at *1 ("A misrepresentation by a plaintiff as to his or her financial assets is not necessarily fatal to the plaintiff's claims."). Instead, the central "question before the Court is not the accuracy of every specific representation made by Plaintiff in support of his application to proceed in forma pauperis, but whether Plaintiff's allegation of poverty is untrue." Hobbs, 2002 WL 868269, at *2 (citations and internal quotation marks omitted).

At the same time, it is well established that the ability to proceed IFP is a privilege, not a right, and that "the court system depends on the honesty and forthrightness of applicants to ensure that the privilege is not being abused." Cuoco, 328 F. Supp. 2d at 467 (internal quotation marks omitted). Thus, courts have held that dismissal of a complaint is appropriate when a "plaintiff 'misrepresents [his or] her financial arrangements in bad faith to obtain IFP status.'" Vann, 2011 WL 3501880, at *1 (alteration in original) (quoting Cuoco, 328 F. Supp. 2d at 468). Bad faith includes "conceal[ing] a source of income in order to gain access to a court without prepayment of fees." Cuoco, 328 F. Supp. 2d at 468. It also includes the forging of a signature on an affidavit regarding the plaintiff's inmate trust account balance, even if the factual allegations in the affidavit are themselves true. See Lay v. Justices-Middle District Ct., 811 F.2d 285, 285-86 (5th Cir. 1987).*fn1 As the Fifth Circuit explained in a case involving the latter situation, "[s]uch conduct is directly related to the litigant's privilege to proceed at the expense of the government and the district court has the power to ensure that this privilege is properly granted." Id. at 286.

Applying these principles here, the Court concludes that dismissal of Waters's complaint is appropriate. Waters indisputably misrepresented his assets by omitting the $600 settlement check from his IFP application. Further, notwithstanding the relatively small amount of the settlement, the Court finds that Waters did so in a bad faith attempt to conceal the funds in order to gain access to the court without prepayment of the fees. That finding is supported by the fact that Waters received, and endorsed, the check within weeks of his completing and signing the IFP application under penalty of perjury. Given that timing, and the fact that Waters did not deposit the check into his inmate trust account (where it automatically would have been used to pay the filing fee), it is highly improbable that he "innocently overlooked [his] obligation to report those funds." Cuoco, 328 F. Supp. 2d at 467.

Equally significant, when confronted with his failure to disclose the check, Waters did not provide a valid excuse. Instead, he claimed that he had received the check later on the same day that he mailed the IFP application to the Court - a claim that is demonstrably false given the bank's notation on the rear of the check indicating that it was cashed on March 31, 2011. He also claimed that he misunderstood the question on the application to require disclosure of money received in the 12 months prior to the incident giving rise to the lawsuit rather than the 12 months ...

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