United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Plaintiff's civil rights
complaint filed pursuant to 42 U.S.C. § 1983, and
received by the court on July 26, 2017 (ECF No. 1). Leave to
proceed in forma pauperis has been granted (ECF No. 5).
Plaintiff is proceeding in forma pauperis, the court must
review the complaint and dismiss it if satisfied that the
action “is (i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). Having
conducted a thorough review, the court is satisfied that this
action is malicious and thus recommends dismissal under
IV of the complaint form requires Plaintiff to disclose
information regarding prior civil cases he may have filed in
state and federal court (ECF No. 1 at 5-6). In Question A of
Section IV, which requests information regarding any previous
cases Plaintiff might have filed in state court that deal
with the same or similar facts or issues as in the instant
action, Plaintiff answered “no” to the question
(id. at 5). In Question B of Section IV, which
requests information regarding any previous cases Plaintiff
might have filed in federal court that deal with the same or
similar facts or issues as those in the instant action,
Plaintiff answered “no” to that question as well
(id). Thus, Plaintiff in effect stated that he has
never initiated an action in state or federal court that
involve the same or similar facts and circumstances as the
end of the civil rights complaint form, Plaintiff signed his
name after the following statement on the form:
“I DECLARE UNDER PENALTY OF PERJURY THAT THE
FOREGOING STATEMENTS OF FACT, INCLUDING ALL CONTINUATION
PAGES, ARE TRUE AND CORRECT” (ECF No. 1 at 9)
(emphasis and capitalization in original).
review of the docket, the clerk of court has advised, and
this court takes judicial notice, that as of the date
Plaintiff filed his complaint, he had previously filed
Daise v. Pursell, identified as Case No.
3:17-cv-309-MCR/EMT in this district court. This previous
action was initially filed in the Escambia County Circuit
Court as Filing No. 54292205 on March 28, 2017, and was
removed to this court by Defendants on May 2, 2017
(see ECF No. 1 in Case No. 3:17-cv-309-MCR/EMT).
Plaintiff, who was represented by counsel in this earlier
case, filed a notice of voluntary dismissal on May 3, 2017
(see ECF No. 4 in Case No. 3:17-cv-309-MCR/EMT).
previous case was also a civil rights cause of action
involving the same parties as in the instant action, and it
involves essentially the same claims and alleged facts as in
the previous action. Plaintiff did not identify this case in
any of the sections of the complaint form identified above
despite the fact that it was responsive to Question A, given
that it was a case filed in state court, or would have been
an acceptable response to Question B, given the case's
subsequent removal to federal court.
routinely recognized by this court, the information from
Section IV of the form is useful to the court in many ways:
. . . it allows efficient consideration of whether the
prisoner is entitled to pursue the current action under the
“three strikes” provision of the Prison
Litigation Reform Act; it allows consideration of whether the
action is related to, or otherwise should be considered in
conjunction with or by the same judge who presided over,
another action; it allows consideration of whether any ruling
in the other action affects the prisoner's current case.
All of these things are appropriately considered in
connection with the preliminary review of such a complaint
under the Prison Litigation Reform Act.
Spires v. Taylor, Order of Dismissal, Case No.
3:00cv249-RH (N.D. Fla. Oct. 27, 2000). Further, because
prisoner plaintiffs generally proceed pro se, the information
helps the court determine their litigation experience and
familiarity with the legal terrain of the current action.
This is especially notable in this case because of the
virtual sameness of the two actions. The time spent verifying
the cases a plaintiff has filed but failed to identify, as
well as the dispositions of those cases, can be considerable.
court has authority to control and manage matters such as
this pending before it, and Plaintiff's pro se status
does not excuse him from conforming to acceptable standards
in approaching the court. If the court cannot rely on the
statements or responses made by the parties, the quality of
justice is threatened. The court will not tolerate false
responses or statements in any pleading or motion filed
before it. Here, Plaintiff falsely responded to questions on
the complaint form, as detailed above. Plaintiff knew, or
from reading the complaint form should have known, that
disclosure of his prior actions was required and that
dismissal of this action may result from his untruthful
answers. 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.
Therefore, this court should not allow Plaintiff's false
responses to go unpunished.
court recommends that an appropriate sanction for
Plaintiff's abuse of the judicial process in not
providing the court with true factual statements or responses
is to dismiss this cause without
prejudice. See, e.g., Hanson v.
McCaul, No. 4:09cv126-SPM/WCS, 2009 WL 3010481, at **1-2
(N.D. Fla. Sept. 16, 2009) (dismissing case without prejudice
for prisoner plaintiff's failure to disclose two federal
cases (both of which were previously dismissed for failure to
comply with court orders) on complaint form which required
prisoner litigants to list all other cases that plaintiff had
previously initiated in state and federal court); Thomas
v. Ammons, No. CV409-139, 2009 WL 5174109, at **1-3
(S.D. Ga. Dec. 23, 2009) (dismissing case without prejudice
for prisoner plaintiff's failure to disclose four federal
cases (two of which were previously dismissed for failure to
comply with court orders and the other two of which were
previously voluntarily dismissed by plaintiff) on complaint
form which demanded litigation information regarding
“any lawsuits brought in federal court . . .”).
Plaintiff should also be warned that such false responses,
filed herein or filed in the future, will not be ignored and
may result in more severe and long-term sanctions. See
Warren v. Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994)
(per curiam) (pro se, in forma pauperis prisoner's
misrepresentation about previous lawsuits may violate Rule
it respectfully RECOMMENDED:
this cause be DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as malicious
and that Plaintiff be assessed a ...