IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Tyenika Effinger

Plaintiff,

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v. ) No. 20 CV 450

Monterrey Security 

Consultants, et al.

Defendants.

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Memorandum Opinion and Order

On January 21, 2020, Tyenika Effinger visited the Clerk’s Office 

of this court and filed a pro se complaint for employment 

discrimination. While there, she filled out an application to proceed 

in forma pauperis and financial affidavit (“IFP application”) as 

well as a motion for attorney representation. In the former, she 

stated that had received $6,000 in wages as well as social security 

and welfare income. She denied having received more than $200 from 

any other source. In addition, plaintiff affirmed that she was 

unemployed and unmarried; that she was solely responsible for the 

support of her daughter; and that no one in her household had more 

than $200 in cash, checking, or savings accounts, or owned stocks, 

bonds, real estate, or any automobile whose value exceeded $1000. 

See DN 4. She declared under penalty of perjury that all of this 
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information was true and correct. Id. I granted her IFP application 

and denied her motion for attorney representation without prejudice.

Monterrey Security Consultants moved to dismiss the complaint 

pursuant to Fed. R. Civ. P. 12(b)(6). I denied the motion summarily 

based on my review of plaintiff’s complaint and recruited counsel

for plaintiff, who had renewed her motion for attorney 

representation. Defendants now seek dismissal pursuant to 28 U.S.C. 

§ 1915(e)(2)(A), asserting that plaintiff made false statements in 

her IFP application. For the reasons that follow, the motion is 

denied.

I.

Defendants enumerate a long list of putative errors and 

omissions in plaintiff’s IFP application, the most salient of which 

is her declaration that she earned $6,000 in wages in the twelve 

months preceding her application, when according to her W2 form for 

that period, she earned more than $12,000 in wages. Defendants also 

observe correctly that plaintiff failed to respond to questions

seeking information about her most recent employment and assert that

she “failed to note other employment, self-employment, an 

alternative residence she shared with others, additional social 

security income, three vehicle titles, and the means by which to 

purchase a car on November 4, 2020.” Mot. at 2. 

Plaintiff’s counseled response admits two of the foregoing 

errors: that she underestimated her wages in the twelve months 
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preceding her application, and that she failed to answer questions

directed to her most recent employment. Plaintiff argues, however,

that these errors do not require dismissal under § 1915(e)(2)(A), as 

they amount to unintentional mistakes that are attributable to her 

learning disability, do not reflect an intent to deceive, and are 

immaterial to her pauper status. With respect to the remaining 

misrepresentations defendants detect, plaintiff denies that the 

information she provided in her application was incorrect and argues 

that defendants’ evidence neither supports the inferences they draw

nor establishes that her allegation of poverty is untrue.

II.

A federal litigant who is unable to pay court fees may proceed 

in forma pauperis, which means that he or she “may commence a civil 

action without prepaying fees or paying certain expenses.” Coleman 

v. Tollefson, 575 U.S. 532, 534 (2015). To qualify for IFP status, 

a plaintiff must fully disclose her financial condition, and she 

must do so truthfully under penalty of perjury. See 28 U.S.C. § 

1915(a)(1). As the Seventh Circuit has explained, “[p]roceeding in 

forma pauperis is a privilege, and courts depend on the plaintiff’s 

honesty in assessing her ability to pay.” Lofton v. SP Plus Corp., 

578 F. App’x 603, 604 (7th Cir. 2014). See also Chung v. Dushane, 

No. 03 C 5955, 2003 WL 22902561, at *2 (N.D. Ill. Dec. 9, 2003)

(“[t]he opportunity to proceed in forma pauperis is a privilege 

provided for the benefit of indigent persons[,] and the court system 
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depends upon the honesty and forthrightness of applicants to ensure 

that the privilege is not abused.”) (citing Denton v. Hernandez, 504 

U.S. 25, 27 (1992)), aff’d sub nom. Chung v. KPMG LLP, 104 F. App’x 

576 (7th Cir. 2004)). The statutory sanction for abusing the 

privilege is mandatory dismissal. See 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.”); Thomas 

v. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002) 

(because “the allegation of poverty was false, the suit had to be 

dismissed; the judge had no choice.”); Peak v. Laborer’s Union Loc. 

#1, No. 19-CV-03351, 2020 WL 1433825, at *1 (N.D. Ill. Mar. 24, 2020)

(“[a]pplicants must tell the truth. If not, the sanction is 

automatic.”).

Moreover, because “the wrongful act of making false statements 

to the court is always harmful,” McRoyal v. Commonwealth Edison Co., 

263 F. App’x 500, 502 (7th Cir. 2008), dismissal is generally 

required when the record indicates that an applicant intended to 

deceive the court, regardless of the magnitude of the falsehood. See 

Kennedy v. Huibregtse, 831 F.3d 441, 443 (7th Cir. 2016) (affirming 

dismissal based on the incarcerated plaintiff’s concealment of a 

$1,400 trust account, which the court considered “a deliberate, 

material lie”); see also Mathis v. New York Life Ins. Co., 133 F.3d

546, 547–48 (7th Cir. 1998) (affirming dismissal where the district 

court found that the plaintiff “knowingly provided inaccurate 
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information” in “attempt to deceive the court”). Further, courts 

routinely infer an intent to deceive when the plaintiff offers 

excuses that are implausible or do not hold up on the record. See, 

e.g., Peak, 2020 WL 1433825, at *4 (N.D. Ill. Mar. 24, 2020)

(dismissing complaint after finding the plaintiff’s “string of

excuses” for concealing income and assets implausible, including 

that he “felt rushed” to complete his IFP application while at the 

clerk’s office, did not understand the questions, did not have his 

reading glasses with him, and was taking painkillers at the time he 

filled out the form); David v. Wal-Mart Stores, Inc., No. 11 C 8833, 

2016 WL 2344576, at *2 (N.D. Ill. May 4, 2016) (finding “unworthy of 

belief” the plaintiff’s excuse that he did not view certain funds in 

his bank account as “truly his”), aff'd, 669 F. App’x 793 (7th Cir. 

2016); Jeffery v. Kraft Foods Glob., Inc., No. 05 C 6458, 2007 WL 

611277, at *4 (N.D. Ill. Feb. 22, 2007) (rejecting argument that the 

plaintiff, who “once owned her own business,” “made honest mistakes” 

because she was a non-attorney and had not completed high school). 

Nevertheless, not every misstatement in an IFP application 

compels dismissal. In Hrobowski v. Commonwealth Edison Co., 203 F.3d 

445 (7th Cir. 2000), the Seventh Circuit reversed dismissal where

the plaintiff initially proceeded in forma pauperis based on an 

application in which he failed to disclose certain assets, but later

“expended considerable money and effort” in the months-long 

proceedings leading up to his trial. Id. at 448. The court reasoned
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that because the plaintiff had not meaningfully “reap[ed] the 

benefits of in forma pauperis status,” the district court was not 

constrained to dismiss the complaint under § 1915(e)(2)(A) and could

have considered a lesser sanction pursuant Rule 11 or its inherent 

authority. Id. District courts have applied the reasoning in 

Hrobowski to deny dismissal, notwithstanding the plaintiff’s untrue 

allegations of poverty, where, for example, the plaintiff’s IFP 

petition was denied, see Harrison v. Illinois Dep’t of Transp., No. 

10-CV-4674, 2011 WL 2470626, at *4 (N.D. Ill. June 21, 2011); where 

the plaintiff “spent considerable money financing the lawsuit and 

was only represented by IFP appointed counsel for a short time 

period,” Kim v. Earthgrains Co., 2010 WL 2610460, at *3 (N.D. Ill. 

June 24, 2010); and where the plaintiff was in fact indigent, and 

the most plausible explanation for the mistakes in her IFP 

application was that “she is just not very good with forms.” Palmer 

v. Dollar Tree, No. 10 C 7340, 2012 WL 4795720, at *2 (N.D. Ill. 

Oct. 9, 2012).

Indeed, although at least one court in this district has held 

that evidence of bad faith is not necessary for dismissal, see Pelmer 

v. Dean, 562 F. Supp. 2d 1006, 1008 (N.D. Ill. 2008) (calling it

“simply wrong” to require a defendant seeking dismissal under 

§ 1915(e)(2)(A) to show that a plaintiff’s “omissions were made in 

bad faith rather than through an innocent oversight”), more recent 

case law make clear that “untrue,” as used in the IFP statute, “means 
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something more than an innocent mistake.” Peak, 2020 WL 1433825, at 

*1 (citing Robertson v. French, 949 F.3d 347, 351 (7th Cir. 2020)

(“Congress meant something like ‘dishonest’ or ‘false,’ rather than 

simply ‘inaccurate’”), and Ruiz v. Bautista, 2020 WL 974896, at *2 

(7th Cir. 2020)). 

In addition, several courts have observed that the statutory 

criterion for mandatory dismissal—falsity of the plaintiff’s 

“allegation of poverty”—is ambiguous. As the court noted in Palmer, 

“[i]t could mean that a case must be dismissed if either (a) any 

nontrivial statement in an IFP affidavit is untrue or (b) the 

applicant told the Court that she is indigent when she is not.” 

Palmer, 2012 WL 4795720, at *3. See also Brantly v. Children’s 

Memorial Hosp., 2010 WL 5174388, at *2 (N.D. Ill. Dec. 14, 2010)

(phrase “allegation of poverty” “could refer generally to an 

applicant’s contention that she is unable to pay. Or it could refer 

to any specific averment in the applicant’s affidavit.”), and David 

v. Geren, 2009 WL 362877, at *1 (S.D. Ind. Feb 11, 2009) (noting 

ambiguity in statutory term “poverty”).

In Palmer, the court examined the case law, considered the 

language and purpose of the IFP statute, and determined that the 

better interpretation is “that § 1915(e)(2)(A) requires the severe 

sanction of dismissal only when a petitioner says that she is 

indigent when she is not.” Palmer, 2012 WL 4795720, at *4. Other 

courts have reached similar conclusions. See, e.g. Chriswell v. Big 
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Score Ent., LLC, No. 11 C 00861, 2013 WL 3669074, at *4 (N.D. Ill. 

July 12, 2013) (“when a plaintiff misstates assets (or omits them) 

on her IFP application, and those misstatements (or omissions) do 

not affect her overall allegation of poverty, dismissal is not 

mandatory”); Moorish Nat. Republic v. City of Chicago, No. 10 C 1047, 

2011 WL 1485574, at *4, *5 (N.D. Ill. Apr. 18, 2011) (declining to 

impose “the ultimate sanction of dismissal” because it was “not 

evident from the record that Plaintiff...would not have qualified 

for IFP status had his application been complete.”); Brantly, 2010 

WL 5174388, at *3 (declining to dismiss where errors did not reflect 

an intent to mislead and the plaintiff’s “general allegation of 

poverty” was correct).

Palmer is particularly instructive here. In that case, the court 

rejected the inference that the plaintiff intended to deceive it by 

omitting information about her past employment, explaining:

A simpler and more plausible theory of Plaintiff’s conduct 

is that she is just not very good with forms. This view is 

supported by the complaint that she filed in this case 

[1]. The fill-in-the-blanks complaint is scarcely more 

complicated than the IFP application, but hers 

nevertheless contains glaring mistakes. For instance, the 

form says that the plaintiff should “Choose paragraph 7.1 

[if the defendant is not a federal government agency] or 

7.2 [if the defendant is a federal government agency]. Do

not complete both.” Despite that direct instruction, she 

completed both. Paragraph 9 asks if the EEOC has issued a 

Notice of Right to Sue. Plaintiff checked box (a) to 

indicate that it had not issued a Notice, but also 

indicated in (b) that a Notice had been issued on September 

19, 2010. The EEOC’s Notice was actually issued on October 

19, 2010.
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Id. at *2. Plaintiff’s submissions in this case contain similar 

mistakes. In fact, plaintiff committed one of the very errors the 

Palmer court identified, completing both paragraphs 7.1 and 7.2 of 

her pro se complaint. DN 1. Additionally, she failed to check any

answer to question 3 of her motion for attorney representation, which 

asked her to indicate whether she was, or was not, represented by a 

court-requested attorney. DN 5. Plaintiff also checked a box 

indicating that she had received assistance completing her forms 

from an attorney at the U.S. District Court Pro Se Assistance 

Program—a questionable response, given the errors just identified. 

And the papers plaintiff filed in conjunction with her roughly 

contemporaneous action in state court are peppered with similar 

mistakes. Indeed, defendants make much of the fact that plaintiff 

provided a different address on the state court forms from the one 

she provided on her IFP application, but in reality, plaintiff 

provided two different addresses in her state papers, including on 

successive pages of her Application for Waiver of Court fees. See DN 

66-4. These are the hallmarks of inattention, inadvertence, or 

confusion, not of an intent to deceive.

Defendants also seize upon the fact that, plaintiff’s IFP 

application discloses a total of $5,000 in social security and 

disability payments and a total of $4,200 in welfare payments, while 

her state court fee-waiver application states that she had received 

a total of $9,012 in the preceding twelve months, including a $781 
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social security payment in the preceding month. Given that the state 

form does not mirror the IFP application—its questions are organized 

and formulated differently, and it does not include, for example,

line items for disability or welfare income—and that there is no 

reason to believe that plaintiff had a copy of the answers she 

provided on the federal form at the time she filled out the state 

form, her answers appear generally more consistent than discrepant.

In any event, the minor differences between them do not suggest an 

intent to mislead.

What is true is that plaintiff should not have offered what 

turned out to be poor estimates of her earnings on forms she signed

under oath. Plaintiff states that she filled out the IFP application 

while at the Clerk’s Office and that she did not believe she could

access her payroll information from there. Even if that is true, the 

record suggests no reason she could not simply have left and come 

back another day after checking her facts. Plaintiff’s willingness

to guess at the answers instead suggests “a disregard for the penalty 

of perjury and a certain nonchalance towards the privilege of 

proceeding in forma pauperis.” Grant v. Kabaker, No. 17 C 7902, 2018 

WL 9988764, at *1 (N.D. Ill. Feb. 7, 2018). This approach is not 

commendable. Nevertheless, it appears from the evidence before me

that plaintiff’s inaccurate reporting of her wages was the result of 

some combination of carelessness, confusion, and failure to 

appreciate the need for precision, and that even if she had disclosed 
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her income accurately, she would have qualified for IFP status. These 

circumstances do not warrant dismissal of her complaint. 

What remains of defendants’ motion is rank speculation based on 

the flimsiest of evidence. First, they leap from the discovery that 

plaintiff incorporated an LLC in September of 2020 to the conclusion

that she must have had undisclosed income as a Principal of that 

entity. Next, they infer, apparently from the appearance of 

plaintiff’s name on the webpage of an entity called Total Life 

Changes, LLC, that exhorts viewers to “Become a Part of Our Family!” 

that plaintiff must have concealed income she earned as a “sales 

associate” for that entity. Finally, they cite a LexisNexis report 

that opens with a lengthy disclaimer alerting readers that it is 

based on public records known to “have errors” and should not be 

relied upon without independent verification to suggest that 

plaintiff failed to disclose information about other members of her 

household. None of this evidence remotely supports the conclusion 

that plaintiff concealed income available to her to pay court fees. 

As for defendant’s evidence of the value of vehicles they assert

plaintiff owns, and a PPP loan they assert she received, plaintiff’s 

response and accompanying evidence roundly controverts the 

inferences they seek to draw.

In short, neither the authorities defendants cite nor the 

evidence on which they rely persuades me that dismissal is warranted.
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III.

For the foregoing reasons, defendants’ motion is denied.

ENTER ORDER:

_____________________________

 Elaine E. Bucklo

United States District Judge

Dated: June 29, 2021