United States District Court, N.D. Florida, Pensacola Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
prisoner civil rights case is before the court on defendants
Sam, Enfinger (formerly Craft) and Nichols' motion to
dismiss under 28 U.S.C. § 1915(e)(2)(B)(i) and (g).
(Doc. 37). Plaintiff opposes the motion. (Doc. 39).
The matter is referred to the undersigned magistrate judge
for report and recommendation pursuant to 28 U.S.C. §
636 and N.D. Fla. Loc. R. 72.2(C). After careful
consideration, the undersigned concludes that the motion to
dismiss should be denied, but that one unserved defendant
(defendant S.I. Yun) should be dismissed due to his death.
AND PROCEDURAL HISTORY
is an inmate of the Florida Department of Corrections (FDC)
currently confined at Florida State Prison. Plaintiff sues
four prison officials at Santa Rosa Correctional Institution
- E.L. Sam, S.I. Yun, M. Nichols and A. Enfinger - claiming
they were deliberately indifferent to his serious medical and
mental health needs in violation of the Eighth Amendment.
(Doc. 12). Plaintiff's second amended complaint was filed
on May 19, 2017. (Id., p. 1). On July 10, 2017, the
court directed service of the complaint. (Doc. 14).
Defendants Sam, Enfinger and Nichols appeared and now move to
dismiss this case as malicious under 28 U.S.C. §
1915(e)(2)(B)(i), and because plaintiff is subject to the
three-strikes provision of § 1915(g). (Doc. 37).
Attempts to serve defendant Yun were unsuccessful.
(See Docs. 16, 18, 20, 25, 29). A notice of
Yun's death was filed and served on December 4, 2017.
AGAINST SAM, ENFINGER AND NICHOLS
Sam, Enfinger and Nichols move to dismiss this case as
malicious due to plaintiff's lack of candor in reporting
his litigation history. Defendants contend that although
plaintiff disclosed that he filed a prior lawsuit against
them in this court on October 29, 2015, which was dismissed
on February 1, 2016, plaintiff failed to disclose the case
number and was not completely truthful about the nature of
the action or the reason for dismissal. The case at issue is
Grantley v. Sam, No. 3:15cv493/MCR/EMT. Defendants
contend that instead of disclosing that this prior case dealt
with the same facts and claims involved in this action,
plaintiff denied any such cases and characterized No.
3:15cv493/MCR/EMT as merely a case concerning the conditions
of his confinement. (See Doc. 12, pp. 3, 8). In
addition, instead of disclosing that No. 3:15cv493/MCR/EMT
was dismissed as malicious for plaintiff's failure to
truthfully report his litigation history, plaintiff described
the nature of dismissal as: “Plaintiff accidentally
failed to list previous suits filed years ago.” (Doc.
12, p. 8). Defendants argue that plaintiff was essentially
trying to hide the existence of No. 3:15cv493/MCR/EMT. (Doc.
37, pp. 2-3). Plaintiff responds that he disclosed No.
3:15cv493/MCR/EMT, as well as his appeal in that case, Appeal
No. 16-10778-C. (Doc. 39, p. 3; see also Doc. 1, p.
7 (original complaint)).
undersigned finds that the particular disclosure plaintiff
made here - identifying the case title, the district court,
the presiding magistrate judge's name, the date of
filing, the date of dismissal, and the appellate case number
- was detailed enough to make the case easy to verify.
Further, plaintiff's description of the reason for
dismissal, though grounded in self-justification and not
fact, made it apparent to the undersigned that the case was
dismissed for his failure to accurately disclose his
litigation history. All in all, the undersigned deems
plaintiff's disclosure sufficient to avoid dismissal of
this case as malicious. Plaintiff is warned, however, that
other judicial officers faced with similar defects may not
find in his favor. Complete candor is important, even to
plaintiff, given the number of strikes he has accumulated.
alternative basis for dismissal is that plaintiff is a
three-striker. Defendants count as strikes the following
cases: (1) Northern District No. 3:15cv493/MCR/EMT, a civil
action dismissed as malicious; (2) Eleventh Circuit Appeal
No. 16-10778-C, an appeal dismissed as frivolous; and (3)
Southern District No. 1:15cv22724-JAL, Grantley v. Jones,
et al., in which one claim was dismissed for failure to
state a claim. (Doc. 37, pp. 3-4; see also Doc. 36,
Attach.). Plaintiff responds that the Southern District case
is not a strike, because the entire suit was not dismissed
and some claims remain pending. (Doc. 39).
of the Southern District case, No. 1:15cv22724-JAL, reveals
that plaintiff sued ten defendants on claims of excessive
force, failure to intervene, and medical deliberate
indifference. (See Doc. 36, Attach. 3). One claim -
an excessive force claim against “John Doe jail
officer” - was dismissed because plaintiff failed to
provide adequate information to identify the defendant.
(Id.). The remaining claims against the other nine
defendants got past the pleading stage to summary judgment,
(id.), and a few of those claims are going to trial.
See Grantley v. Jones, et al., No. 1:15cv22724-JAL,
Docs. 130, 131.
28 U.S.C. § 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
plain language of § 1915(g) requires that in order to
count as a strike, the “action” must be
dismissed, not merely a claim within the action. 28 U.S.C.
§ 1915(g); see also Action, BLACK'S LAW
DICTIONARY (10th ed. 2014) (defining “action” as
“[a] civil or criminal judicial proceeding”);
Fed.R.Civ.P. 2 (noting that “[t]here is one form of
action - the civil action”); Fed.R.Civ.P. 3 (stating
that a civil “action” begins with the filing of a
complaint); Fed.R.Civ.P. 54(b) (recognizing that an
“action” may contain “more than one
claim” so that “any order . . . that adjudicates
fewer than all the claims . . . does not end the action as to
any of the claims”); see also, e.g., Medberry v.
Butler, 185 F.3d 1189, 1192 (11th Cir. 1999)
(interpreting § 1915(g) as applying when “a
prisoner has had three or more cases dismissed for
one of the[ ] three reasons” (emphasis added));
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir.2002) (“After the third meritless suit,
the prisoner must pay the full filing fee at the time he
initiates suit.” (emphasis added) (citation omitted)).
position that the dismissal of a claim within a lawsuit
counts as a strike is not only inconsistent with the plain
language of the statute, it is contrary to the weight of
authority from those Circuits that have directly addressed
the issue.See Brown v. Megg, 857 F.3d 287
(5th Cir. 2017) (holding that prisoner's prior §
1983 action was not dismissed in its entirety on the ground
that it was frivolous, malicious, or failed to state a claim,
and thus did not count as strike under § 1915(g);
although the action was partially dismissed for failure to
state a claim, some of the prisoner's claims got past the
pleading stage to summary judgment); Thomas v.
Parker, 672 F.3d 1182, 1183 (10th Cir. 2012)
(“Because the statute refers to dismissals of
‘actions, ' as opposed to ‘claims, ' it
is well established that a partial dismissal based on one of
the grounds enumerated in § 1915(g) is generally not a
proper basis for assessing a strike.”); Tolbert v.
Stevenson, 635 F.3d 646, 651-52 (4th Cir. 2011)
(“[W]e conclude that ‘action' in §
1915(g) unambiguously means an entire case or suit.
Therefore, § 1915(g) requires that a prisoner's
entire ‘action or appeal' be dismissed on
enumerated grounds in order to count as a strike.”);
Turley v. Gaetz, 625 F.3d 1005, 1008-09, 1012 (7th
Cir. 2010) (examining the use of “action” and
“claim” in the Federal Rules of Civil Procedure;
concluding that each term has a well-defined meaning in the
pleading context; and holding that “the obvious reading
of [§ 1915(g)] is that a strike is incurred for an
action dismissed in its entirety on one or more of the three
enumerated grounds.”); Thompson v. Drug Enforcement
Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (holding that
in order to count as a “strike, ” all claims must
fall into at least one of the three-strike categories;
“Section 1915(g) speaks of the dismissal of
‘actions and appeals, ' not
although the Eleventh Circuit has not addressed this precise
issue, the undersigned concludes that the better reasoned
view, consistent with the view of other Circuits, is that the
partial dismissal in Southern District No. 1:15cv22724-JAL,
is not a strike under § 1915(g). Plaintiff did not have
three strikes under § 1915(g) at the time he ...