United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
an inmate serving a sentence in the custody of the Florida
Department of Corrections, initiated this case by filing ECF
No. 1, a pro se civil rights complaint pursuant to
42 U.S.C. § 1983, and ECF No. 2, a motion for leave to
proceed in forma pauperis.
with the Court's screening obligation under 28 U.S.C.
§ 1915A, the Court screened the complaint and identified
a number of deficiencies. For starters, Plaintiff's
motion to proceed in forma pauperis lacked the requisite
affidavit of financial status, prisoner consent form and
financial certificate, and printout of all transactions in
his prison account for the preceding six (6) months.
addition, as the Court pointed out in its March 19, 2018
order, ECF No. 4, Plaintiff's complaint requested relief
that can only be pursued via a petition for writ of habeas
corpus. Plaintiff's purported claims stem from his
assertion that law enforcement violated his rights under the
Fourth Amendment when they searched his residence and seized
a handgun. He also claims he was denied due process because
he was not read his Miranda rights upon arrest. As
relief Plaintiff requests “[t]o be judge fairly under
god and under the Supreme Law of The Land. (Reverse and
Remanded) Total Restoration of losses.” (ECF No. 1 at
8.) Plaintiff also included, as an attachment, a copy of the
jury verdict in the Bay County Circuit Court case against
him,  finding him guilty of felon in possession
of a firearm. (Id. at 14.)
Plaintiff appears to be attempting to challenge the search
and seizure and his arrest in the case in which he was
convicted in state court and for which he is currently
imprisoned. To the extent, however, that Petitioner seeks to
have his conviction reversed, the proper avenue to do so is
via a petition for writ of habeas corpus under 28 U.S.C.
§ 2254-not a civil rights complaint. See §
2254(a) (section 2254 applies to “a person in custody
pursuant to the judgment of a State court . . . in custody in
violation of the Constitution or laws or treaties of the
United States”); Nelson v. Campbell, 541 U.S.
637, 643 (2004) (section 1983 is the proper avenue to assert
a civil rights action challenging the conditions of
confinement or other constitutional violations but does not
provide an avenue of relief for challenges to the fact or
duration of confinement, nor does it provide relief for an
Court did not require Plaintiff to correct the aforementioned
deficiencies, however, because Plaintiff failed to disclose
information regarding previous lawsuits. Plaintiff executed
the complaint under penalty of perjury. (ECF No. 1 at 8.) The
Court's civil rights complaint form requires prisoners to
disclose information regarding previous lawsuits.
(Id. at 3-4.) Prisoners are required to disclose
whether they have initiated actions in state or federal court
“with the same or similar facts/issues involved in this
action, ” or “that relate to the fact or manner
of your incarceration (including habeas corpus petitions) or
the conditions of your confinement (including civil rights
complaints about any aspect of prison life, whether it be
general circumstances or a particular episode, and whether it
involved excessive force or some other wrong)[.]”
(Id.) In response, Plaintiff identified two cases:
(1) Ash v. Wilson, No. 14-1322-C (Fla. Bay County
Ct. Aug. 14, 2017) (case currently pending alleging
violations of Plaintiff's Fourth, Fifth, and Sixth
Amendment rights); and (2) a motion for postconviction relief
filed in his state court criminal case. (Id.)
review of the Court's PACER Case Locator reflects,
however, that Plaintiff has filed at least five additional
actions in federal district court while he has been
incarcerated or that relate to the fact of his incarceration:
(1) Ash v. Jones, No. 5:18-cv-2-MCR-CJK (N.D. Fla.
Jan. 2, 2018) (pending petition for writ of habeas corpus
under § 2254); (2) Ash v. Strobel, No.
5:15-cv-309-MP-CJK, ECF Nos. 19-20 (N.D. Fla. Apr. 18, 2016)
(dismissing Plaintiff's complaint pursuant to §
1915A for failure to state a claim); (3) Ash v.
Florida, No. 5:13-cv-223-RS-EMT, Nos. 11-12 (N.D. Fla.
Oc. 21, 2013) (dismissing without prejudice Plaintiff's
petition under § 2254 for failure to comply with an
order of the Court); (4) Ash v. Bay Cty. Jail, No.
5:12-cv-298-RS-GRJ, ECF Nos. 16-17 (N.D. Fla. June 11, 2013)
(dismissing Plaintiff's complaint for failure to timely
serve under Fed.R.Civ.P. 4, failure to prosecute, and failure
to keep the Court informed of a current mailing address); and
(5) Ash v. Florida, No. 5:13-cv-35-SPM-GRJ, Nos.
10-11 (N.D. Fla. Mar. 25, 2013) (dismissing Plaintiff's
complaint pursuant to § 1915A for failure to state a
claim). The Court confirmed that the plaintiff in at least
the two most recent cases is the same as the plaintiff in
this case, having been identified by his FDOC inmate number
absence of any basis for excusing a plaintiff's lack of
candor, failure to disclose and truthfully describe previous
lawsuits as clearly required on the Court's prisoner
civil rights complaint form warrants dismissal of the
complaint for abuse of the judicial process. See Redmon
v. Lake Cty. Sheriff's Office, No. 10-11070, 2011 WL
576601, at *4 (11th Cir. Feb. 10, 2011). In
Redmon, the Eleventh Circuit affirmed the dismissal
of a prisoner's civil rights complaint that did not
disclose a previous lawsuit. The plaintiff argued that he
“misunderstood” the form, but the Eleventh
Circuit held that the district court had the discretion to
conclude that the plaintiff's explanation did not excuse
his misrepresentation because the complaint form
“clearly asked Plaintiff to disclose previously filed
lawsuits .. . .” Id. The Eleventh Circuit
determined that dismissal was an appropriate sanction:
Under 28 U.S.C. § 1915, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative
tactics warrants dismissal.” Attwood v.
Singletary, 105 F.3d 610, 613 (11th Cir. 1997). In
addition, a district court may impose sanctions if a party
knowingly files a pleading that contains false contentions.
Fed. R. Civ. P. 11(c). Although pro se pleadings are
held to a less stringent standard than pleadings drafted by
attorneys, a plaintiff's pro se status will not
excuse mistakes regarding procedural rules. McNeil v.
United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
addition to revealing whether a prisoner is subject to the
PLRA's “three strikes” provision, the
information required on the form assists the Court in
efficiently managing prisoner litigation by showing whether a
complaint is related to or is affected by another case. The
failure to exercise candor in completing the form, while
acknowledging that the answers are made under penalty of
perjury, impedes the Court in managing its caseload and
merits the sanction of dismissal. See Redmon, 2011
WL 576601, at *4; Johnson v. Crawson, No.
5:08-cv-300, 2010 WL 1380247, at *2 (N.D. Fla. Mar. 3, 2010)
(“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.”); Paulcin v.
McNeil, No. 3:09-cv-151, 2009 WL 2432684, at *2 (N.D.
Fla. Aug. 6, 2009) (“If the court cannot rely on the
statements or responses made by the parties, it threatens the
quality of justice. The court will not tolerate false
responses or statements in any pleading or motion filed
Court therefore ordered Plaintiff to show cause by April 23,
2018, as to why this case should not be dismissed for abuse
of the judicial process. (ECF No. 4.) As of the date of this
report and recommendation, Plaintiff has not responded and
the time for doing so has expired.
district court has inherent power to control its docket,
which includes dismissing a case. Quality Foods de Centro
Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A.,
711 F.2d 989, 998 (11th Cir. 1983). The Court may dismiss a
claim if the plaintiff fails to prosecute it or comply with a
court order. Fed.R.Civ.P. 41(b). “The power to invoke
this sanction is necessary in order to prevent undue delays
in the disposition of pending cases and to avoid ...