United States District Court, N.D. Florida, Tallahassee Division
LARRY M. WYNN, Plaintiff,
POSTAL SERVICE, COURT CLERK, and PRISON AUTHORITIES, Defendants.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Larry M. Wynn initiated this case on April 19,
2017. Leave to proceed in forma pauperis was granted on April
20, 2017, ECF No. 6, and because Mr. Wynn was not required to
submit an initial partial filing fee, his complaint, ECF No.
1, was reviewed. Mr. Wynn's assertions in the complaint
concerning his prior litigation history did not appear to be
correct. See ECF No. 1 at 12-13. Thus, he was
provided an opportunity “to show good cause why this
case should not be dismissed for failing to honestly disclose
his prior cases.” ECF No. 5 at 2. He was also required
to file an amended complaint by May 19, 2017, in which he
listed all of his prior cases as required. Additionally, the
Order informed Mr. Wynn of three reasons his complaint was
insufficient as filed. First, he was instructed that a
complaint for negligence is not actionable under 42 U.S.C.
§ 1983. Id. at 3-4. He was also advised that
his First Amendment claim was insufficient because he had not
demonstrated that he was impeded in filing a nonfrivolous
action. Id. at 4-5. Furthermore, he was warned that
he could not receive his requested relief of monetary damages
because he did not suffer any physical injury. Id.
at 5-6 (citing 42 U.S.C. § 1997e(e)).
Wynn filed objections to that Order. ECF No. 7. United States
District Judge Robert L. Hinkle overruled his objections and
extended the deadline for him to comply with the prior Order.
ECF No. 8. Mr. Wynn did not comply by the May 26, 2017,
deadline but, instead, filed a notice of appeal, ECF No. 9,
and a motion requesting leave to proceed in forma pauperis on
appeal. ECF No. 15.
Order was entered on July 25, 2017, advising Mr. Wynn that
his in forma pauperis motion was insufficient and explaining
that his appeal did not deprive this Court of jurisdiction.
ECF No. 16. He was “provided one final opportunity to
file the amended complaint as previously directed or to
submit a response to this Order which clearly and
unambiguously” stated his “refusal to
Mr. Wynn filed objections to that Order. ECF No. 17. Judge Hinkle
similarly overruled the objections. ECF No. 19. However,
Judge Hinkle's Order was not entered until August 24,
2017, which was after the deadline set for Mr. Wynn to file
the amended complaint or a notice of his refusal.
See ECF No. 16. Therefore, another Order was entered
on September 27, 2017, as a courtesy to Mr. Wynn. ECF No. 20.
He was required to comply with the July 25th Order, ECF No.
16, on or before October 18, 2017. Specifically, Mr. Wynn was
ordered to file the amended complaint as directed. ECF No.
20. He was also required to show good cause why this case
should not be dismissed for failing to honestly disclose his
prior cases in the initial complaint. Id. Mr. Wynn
was warned that failure to comply would result in a
recommendation to dismiss this case. ECF No. 20.
response, Mr. Wynn has filed another objection to that Order.
ECF No. 21. He contends that the court form asked questions
only about his prior civil litigation history. ECF No. 21. He
states that he “has absolutely NO civil litigation
history and his criminal case history is irrelevant in this
objections are frivolous and ignore the fact that Mr. Wynn,
twice, filed objections to Orders requiring him to file an
amended complaint which honestly disclosed his litigation
history and which presented a viable claim in light of the
three deficiencies pointed out in the initial Order. His
objections, ECF Nos. 7 and 17, were overruled. ECF Nos. 8 and
his objection is incorrect. Mr. Wynn is currently housed at
Tomoka Correctional Institution. ECF No. 21. He lists his
Department of Corrections' inmate identification number
as 304976. Id.
2014, Mr. Wynn filed a document in the United States District
Court for the Middle District of Florida, Jacksonville
Division, stating that he was going to kill several inmates
because he could not adapt and indicating he was in need of
mental health treatment. ECF No. 1, case # 2:14cv346. That
document was deemed to be a request for medical help, and the
case was transferred to the Fort Myers Division, Middle
District of Florida. ECF No. 2, case #
2:14cv346. At that time, Mr. Wynn was incarcerated at
Charlotte Correctional Institution. It has been confirmed
that the case was initiated by Larry M. Wynn, D.O.C. number
304976. After transfer, he was required to file an amended
complaint and proof of indigency. ECF No. 6, case #
2:14cv346. When he did not comply, the case was dismissed
without prejudice. ECF Nos. 9-10, case # 2:14cv346. Those
civil cases should have been reported by Mr. Wynn,
notwithstanding that they were dismissed because he did not
comply with a court order.
in 1999 Mr. Wynn filed a federal petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in the Middle
District of Florida. That case, number 3:99cv422-RWN, was
dismissed because it was not filed within “the one year
period of limitation set forth in” 28 U.S.C. §
2244(d)(1). ECF No. 13 of that case.
to Mr. Wynn's argument, ECF No. 21, the complaint form
requires prisoners to list all other actions filed in federal
court which either challenges a conviction or otherwise
relates to the conditions of confinement. See ECF
No. 1 at 13. A § 2254 habeas petition is a challenge to
a conviction and the two prior cases concerning the need for
mental health treatment relate to the conditions of his
confinement. Those cases should have been reported. Mr. Wynn
has refused to do so.
he was required to file an amended complaint because the
merits of his original complaint failed to state a claim. He
is unwilling to comply with that requirement as well. Having
had several opportunities to file the amended complaint, no
further chances should be provided.
Wynn was warned that if he did not comply with the prior
Orders, a recommendation of dismissal may be entered.
Furthermore, he has not shown good cause for failing to
disclose his prior lawsuits. See Redmon v. Lake Cty.
Sheriff's Office, 414 Fed.Appx. 221, 226 (11th Cir.
2011) (holding that “district court was entitled to
conclude that Plaintiff had abused the judicial process when
he failed to” show good cause for not disclosing all
prior lawsuits filed); Young v. Sec'y Florida for
Dep't of Corr., 380 Fed.Appx. 939, 941 (11th Cir.
2010) (finding “district court did not abuse its
discretion when it sanctioned Young for failing to disclose
his prior cases.”). This case should now be dismissed
for abuse of the judicial process and for failing to state a
claim on which relief may be granted.
respectfully RECOMMENDED that the complaint,
ECF No. 1, be DISMISSED for failure to state
a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii), and because Plaintiff has
abused the judicial process by failing to honestly disclose
his prior litigation history. It is also
RECOMMENDED that the Order adopting this
Report and Recommendation direct the Clerk ...