Rogers v. Holmes County Board of County Commissioners

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF MAGISTRATE JUDGE

         This cause is before the court on Plaintiff's civil rights complaint filed pursuant to 42 U.S.C. § 1983 (ECF No. 1). Leave to proceed in forma pauperis has been granted (ECF No. 4).

         Because 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 section 1915(e)(2)(B)(i).

         In the main, Plaintiff, who is currently incarcerated at Holmes County Work Camp, claims he has been denied adequate access to a law library so that he can prosecute his criminal appeals. Plaintiff also complains of various other conditions of his confinement.

         Section VIII of the complaint form requires Plaintiff to disclose information regarding prior civil cases he filed in state and federal court (ECF No. 1 at 14-17).^[1]Question A of Section VIII asks: “To the best of your knowledge, have you had any case dismissed for a reason listed in § 1915(g) which counts as a strike?”^[2] Plaintiff answered “no” to the question (id. at 15). Question B of Section VIII asks the following question: “Have you filed other lawsuits in either state or federal court dealing with the same facts or issue involved in this case?” Plaintiff also answered “no” to this question (id.). Question C of Section VIII asks, “Have you filed any other lawsuit in federal court either challenging your conviction or otherwise relating to the conditions of your confinement?” In response to this question, Plaintiff identified one case, No. 5:17cv270/MCR/EMT.

         Thus, in effect, Plaintiff has stated that he has filed no previous federal cases in federal court that were dismissed for a reason listed in § 1915(g) and thereby counted as a “strike” under that section, nor has he filed any other cases besides No. 5:17cv270/MCR/EMT that dealt with the conditions of his confinement.

         The following warning appears at the end of Section VIII, “Failure to disclose all prior cases may result in the dismissal of this case” (id. at 17). Additionally, in Section IX, Plaintiff signed his name after the following statement on the form: “I declare under penalty of perjury that the foregoing (including all continuation pages) is true and correct” (id. at 17-18).

         As routinely recognized by this court, the information gathered from the complaint form about previous cases 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, 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.

         Upon review of the docket, this court takes judicial notice that, as of the date Plaintiff filed his complaint, he had previously filed Rogers v. Tate, No. 5:17cv161/MCR/GRJ, in this district on June 16, 2017.^[3] This case largely concerned the conditions of confinement at Holmes County Work Camp, where Plaintiff contends that as a pretrial detainee his Sixth Amendment right of access to the courts was abridged because Defendant Sheriff John Tate did not provide him adequate access to the legal library at the Work Camp so that he could properly represent himself in his criminal case. See No. 5:17cv161/MCR/GRJ, ECF Nos. 1 at 5-7, 5 at 1-2. On July 10, 2017, that case was dismissed for failure to state a claim upon which relief could be granted and was assessed a “strike” under 28 U.S.C. § 1915(g). See id., ECF Nos. 5, 7, 8. As can readily be determined, this previous case presents virtually the same factual situation as the one presently before the court, and it surely presents the same legal issue.

         Thus, Plaintiff previously filed a case in federal court but failed to disclose it on the complaint form even though it should have been identified under Question A as a previous case that was dismissed and given a “strike” under Section 1915(g); under Question B as a case that dealt with the same facts and issue (insufficient access to a legal library) as the instant case; and under Question C as a previous case that dealt with the conditions of his confinement.

         The 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 the 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.

         The 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.^[4]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 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 ...