United States District Court, N.D. Florida, Gainesville Division
ORDER AND REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge
initiated this case by filing a Complaint, ECF No. 1, and a
motion for leave to proceed as a pauper, ECF No. 2. Leave to
proceed as a pauper will be granted for the limited purpose
of dismissing this case pursuant to 28 U.S.C. §
allegations of the Complaint stem from an incident at Mayo CI
during which Plaintiff alleges that two officers violated his
constitutional rights by using chemical spray on him without
justification. ECF No. 1.
executed the complaint under penalty of perjury. ECF No. 1 at
8. The Court's civil rights complaint form requires
prisoners to disclose their prior litigation history. Section
IV of the Court's civil rights complaint form requires
prisoners to disclose information regarding other lawsuits,
including whether they have initiated other actions in state
or federal court dealing with the same or similar facts
involved in the instant case, whether they have initiated
other cases dealing with the fact or manner of their
incarceration (including habeas corpus petitions), and
whether they have “ever had any actions in federal
court dismissed as frivolous, malicious, for failure to state
a claim, or prior to service, ” and if so to
“identify each and every case so dismissed.” ECF
No. 1 at 3-4 (emphasis added). The form expressly warns that
“FAILURE TO DISCLOSE ALL PRIOR CIVIL
CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE
UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE
DISCLOSED AS WELL.” ECF No. 1 at 3.
response to these questions, Plaintiff identified one prior
civil rights case: Walker v. Poveda, Case No.
8:15-cv-2814-EAK-TGW (M.D. Fla. 10/26/16) (summary judgment
entered for defendants).
review of the Court's PACER case index reflects that
Plaintiff has filed two additional federal cases that he
failed to disclose: Walker v. Harvin, Case No.
8:06-cv-1781-SDM-TBM (M.D. Fla. 10/5/06) (dismissing civil
rights case for failure to prosecute); Walker v.
Sec'y, Case No. 8:16-cv-1401-SDM-AAS (M.D. Fla.)
(Pending habeas corpus case). The Court has confirmed that
the Plaintiff in the undisclosed cases is the same as in this
case, having DOC # 139961.
absence of any basis for excusing a plaintiff's lack of
candor, failure to disclose and truthfully describe previous
lawsuits warrants dismissal of the complaint for abuse of the
judicial process. See Redmon v. Lake County
Sheriff's Office, No. 10-11070, 2011 WL 576601 *4
(11th Cir. Feb. 10, 2011). In Redmon, the
Eleventh Circuit affirmed the dismissal of a prisoner's
civil rights complaint that did not disclose a previous
lawsuit. The plaintiff argued that he
“misunderstood” the form, but the Court held that
the district court had the discretion to conclude that the
plaintiff's explanation did not excuse his
misrepresentation because the complaint form “clearly
asked Plaintiff to disclose previously filed
lawsuits[.]” Id. The Court determined that
dismissal was an appropriate sanction:
Under 28 U.S.C. § 1915, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative
tactics warrants dismissal.” Attwood v.
Singletary, 105 F.3d 610, 613 (11th Cir.1997). In
addition, a district court may impose sanctions if a party
knowingly files a pleading that contains false contentions.
Fed.R.Civ.P. 11(c). Although pro se pleadings are
held to a less stringent standard than pleadings drafted by
attorneys, a plaintiff's pro se status will not
excuse mistakes regarding procedural rules. McNeil v.
United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
addition to revealing whether a prisoner is subject to the
PLRA's “three strikes” provision, the
information required on the form assists the Court in
efficiently managing prisoner litigation by showing whether a
complaint is related to or is affected by another case. The
failure to exercise candor in completing the form, while
acknowledging that the answers are made under penalty of
perjury, impedes the Court in managing its caseload and
merits the sanction of dismissal. See Redmon, 2011
WL 576601, at *4; Johnson v. Crawson, No.
5:08-cv-300, 2010 WL 1380247, at *2 (N.D. Fla. Mar. 3, 2010)
(“If Plaintiff suffered no penalty for his untruthful
responses, there would be little or no disincentive for his
attempt to evade or undermine the purpose of the form.
Furthermore, if word spread around the prisons that the
questions on the complaint form could be circumvented in such
a manner, the court might be confronted with widespread abuse
from its many prisoner litigants.”); Paulcin v.
McNeil, No. 3:09-cv-151, 2009 WL 2432684, at *2 (N.D.
Fla. Aug. 6, 2009) (“If the court cannot rely on the
statements or responses made by the parties, it threatens the
quality of justice. The court will not tolerate false
responses or statements in any pleading or motion filed
case, the undisclosed habeas corpus case is currently
pending, and therefore Plaintiff cannot plausibly claim that
he should be excused from the disclosure requirement.
Although the other civil rights case was filed around 10
years ago, the disclosure requirement extends to all
cases filed while the inmate was incarcerated at any time.
undersigned therefore concludes that dismissal of this case
without prejudice for abuse of the judicial process is an
appropriate sanction for Plaintiff's lack of candor. The
dismissal of this case for abuse of the judicial process
should operate as a “strike” pursuant to 28
U.S.C. § 1915(g), but will not preclude Plaintiff from
re-filing his claims in a properly-completed complaint form.
If Plaintiff accumulates three strikes, however, he will be
prohibited from proceeding as a pauper in a civil case while
he is incarcerated, unless he can demonstrate that he
satisfies the “imminent danger” exception to the
it is ORDERED that the motion for leave to
proceed as a pauper, ECF No. 2, is GRANTED.
respectfully RECOMMENDED that this case
should be DISMISSED pursuant to 28 ...