United States District Court, N.D. Florida, Panama City Division
CALVIN L. POWELL, Inmate No. 121781, Plaintiff,
JULIE L. JONES, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.
an inmate of the Florida Department of Corrections
(“FDOC”) proceeding pro se and in forma pauperis,
commenced this case by filing a civil rights complaint under
42 U.S.C. § 1983 (ECF No. 1). Plaintiff subsequently
filed an Amended Complaint naming the FDOC Secretary and two
correctional officers at Calhoun Correctional Institution as
Defendants (ECF No. 7 at 1-2). Plaintiff claims that
Defendants violated his Eighth Amendment rights by failing to
protect him from an attack by another inmate and failing to
provide medical treatment for his resulting injuries in
August of 2015 (id. at 5-7). Plaintiff seeks
compensatory damages (id. at 7).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(C); see also 28 U.S.C. §
636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). Upon consideration,
for the reasons given below, the court recommends that this
action be dismissed.
Plaintiff is a prisoner proceeding in forma pauperis, the
court must review the complaint and dismiss it if satisfied
that the action is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28
U.S.C. §§ 1915(e)(2)(B), 1915A. A plaintiff's
affirmative misrepresentation regarding his prior litigation
history, when the complaint form required disclosure of such
history and the plaintiff's statements were made under
penalty of perjury, constitutes abuse of the judicial process
warranting dismissal of the case without prejudice as
“malicious” under § 1915(e)(2)(B)(i) and
§ 1915A(b)(1). See Rivera v. Allin, 144 F.3d
719, 731 (11th Cir. 1998), abrogated in part on other
grounds by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910,
166 L.Ed.2d 798 (2007); see also, e.g., Sears v.
Haas, 509 F. App'x 935, 935-36 (11th Cir. 2013)
(unpublished) (dismissal of action without prejudice as
malicious for abuse of judicial process was warranted where
inmate failed to disclose case he had filed against prison
officials just five months earlier, and failed to disclose
another case he filed six years earlier that had been
dismissed prior to service for failure to state a claim);
Harris v. Warden, 498 F. App'x 962, 964-65 (11th
Cir. 2012) (unpublished) (dismissal of action without
prejudice for abuse of judicial process was warranted where
inmate made no attempt to disclose his prior cases in his
original and amended complaints); Jackson v. Fla.
Dep't of Corr., 491 F. App'x 129, 132-33 (11th
Cir. 2012) (unpublished) (dismissal of action without
prejudice as malicious for prisoner plaintiff's abuse of
judicial process was warranted where plaintiff failed to
disclose existence of one prior case, and disclosed existence
of another prior case but still failed to disclose that it
was dismissed as frivolous, malicious, failing to state a
claim, or prior to service); Redmon v. Lake Cnty.
Sheriff's Office, 414 F. App'x 221, 226 (11th
Cir. 2011) (unpublished) (prisoner's failure to disclose
previous lawsuit filed in district court while he was a
prisoner constituted abuse of judicial process warranting
sanction of dismissal of his pro se § 1983 action, since
prisoner's misrepresentation was not excused by his
explanation that he misunderstood complaint form on which he
represented, under penalty of perjury, that he did not file
any prior lawsuits with similar facts or otherwise relating
to his imprisonment or conditions of imprisonment);
Shelton v. Rohrs, 406 F. App'x 340, 340-41 (11th
Cir. 2010) (unpublished) (affirming dismissal of action
without prejudice for prisoner plaintiff's abuse of
judicial process where plaintiff failed to disclose four
previous civil actions; even if prisoner did not have access
to his legal materials, he would have known that he filed
multiple previous lawsuits); Young v. Sec'y for
Dep't of Corr., 380 F. App'x 939, 940-41 (11th
Cir. 2010) (unpublished) (district court did not abuse its
discretion when it sanctioned Florida prisoner proceeding in
forma pauperis by dismissing his civil rights lawsuit sua
sponte for not disclosing all of the information that
was known to him with regard to his prior cases, even though
prisoner could not afford to pay copying and certification
costs charged by Florida state courts and he no longer had
documents necessary to answer fully due to FDOC rule
prohibiting possession of “excess legal
material”); Hood v. Tompkins, 197 F. App'x
818, 819 (11th Cir. 2006) (unpublished) (dismissal of pro se
state inmate's § 1983 action as sanction for
providing false answers to unambiguous questions on complaint
form regarding prior lawsuits was not an abuse of discretion,
even though inmate conceded in his objections to magistrate
judge's report and recommendation that his disclosures
were incomplete; to allow inmate to continue with suit would
have served to overlook his abuse of judicial process).
general, a dismissal without prejudice does not amount to an
abuse of discretion. See Dynes v. Army Air Force Exch.
Serv., 720 F.2d 1495, 1499 (11th Cir. 1983) (holding
that dismissal without prejudice, even for a minor violation
of a court order, was not an abuse of discretion). Such a
dismissal should be allowed absent some plain prejudice other
than the mere prospect of a second lawsuit. See Kotzen v.
Levine, 678 F.2d 140 (11th Cir. 1982).
conducted a thorough review, the court is satisfied that this
action is malicious and thus recommends dismissal under
section 1915(e)(2)(B)(i) and 1915A(b)(1). Section IV of the
complaint form requires Plaintiff to disclose information
regarding prior civil cases he filed in state and federal
court (ECF No. 7 at 3-4). In Plaintiff's Amended
Complaint, he answered “no” to all four questions
on the subject (id.), including Question D of
Section IV, which asks, “Have you ever had any actions
in federal court dismissed as frivolous,
malicious, failing to state a claim, or prior to service? If
so, identify each and every case so dismissed”
(id. at 4). As previously noted, Plaintiff answered
“no” to this question. Thus, Plaintiff has stated
that he has filed no previous cases in federal court that
were dismissed as frivolous, malicious, failing to state a
claim, or prior to service.
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. 7 at 7).
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. 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.
clerk of court has advised, and this court takes judicial
notice, that Plaintiff has previously filed the following two
cases in federal court:
• Powell v. Jones, Case No.
3:16-cv-00861-MMH-JBT; originally filed in the Northern
District of Florida on June 24, 2016 (Case No.
4:16-cv-391-RH-GRJ) and transferred to the Southern District
of Florida on June 30, 2016; dismissed prior to service on
July 5, 2016.
• Powell v. Jones, Case No.
3:16-cv-01043-MMH-JRK; filed on August 15, 2016 in the
Southern District of Florida; dismissed prior to service on
August 19, 2016.
review of these previous cases shows that Plaintiff was
incarcerated when he filed both of them. Thus, Plaintiff
should have identified these cases in response ...