United States District Court, N.D. Florida, Panama City Division
DENNIS COX, Inmate No. L69490, Plaintiff,
B. LOPEZ, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on Plaintiff's amended civil
rights complaint filed pursuant to 42 U.S.C. § 1983 (ECF
No. 14). Leave to proceed in forma pauperis has been granted
(ECF No. 6). Plaintiff is a prisoner of the Florida
Department of Corrections currently incarcerated at
Graceville Correctional Facility.
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
IV of the complaint form requires Plaintiff to disclose
information regarding prior civil cases he filed in state and
federal court (ECF No. 14 at 4-7). In Question B of Section
IV, which requests information regarding any previous cases
Plaintiff might have filed in federal court that deal with
the same or similar facts as those in the instant action,
Plaintiff answered “yes” to the question, and
identified three cases: Cox v. Pride Enterprises,
4:13-cv-00399-RH-CAS; Cox v. Miller,
5:17-cv-00007-MW-CJK; and Cox v. Nichols,
D of Section IV asks, “Have you ever had any actions in
federal court dismissed as frivolous, malicious, failing to
state a claim, or prior to service?” (id. at
6). Plaintiff answered “yes” to this question and
identified the same three cases identified above
(id. at 6-7).
in effect, Plaintiff has stated that he has filed three
previous federal cases with this court, as identified in
Questions B and D, that which were either the same or similar
to the instant case or were dismissed as frivolous or
malicious, for failing to state a proper claim, or prior to
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. 14 at
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, 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.
court takes judicial notice that in 2012 Plaintiff had
previously filed at least two cases in the United States
District Court for the Southern District of Florida. They are
Cox v. Ballante, No. 10-61536-Civ-Dimitrouleas, and
Cox v. Weissman, No.
10-61597-Civ-Cooke. Both were filed and dismissed under 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted. See No.
10-61536-Civ-Dimitrouleas at Doc. 9; No. 10-61597-Civ-Cooke
at Doc. 9. Because they were dismissed in this manner these
cases should have been disclosed in response to Question D of
Section IV. Additionally, since these cases were dismissed at
least in part for being in the nature of habeas corpus, the
cases should also have been disclosed in response to Question
C of Section IV, which requests all cases “that relate
to the fact or manner of your incarceration (including habeas
corpus petitions) or the conditions of your confinement . . .
.” (ECF No. 14 at 6).
stated earlier, disclosure of these previously filed cases
helps in a number of ways, including the consideration of
whether the prisoner is subject to the “three
strikes” provision of the Prison Litigation Reform Act.
That concern is born out in the instant case because, taken
in sum, Plaintiff's disclosed and undisclosed cases add
up to three strikes. Hence, even if Plaintiff's case were
not subject to dismissal for reasons provided in the instant
Report, it would have been subject to dismissal under the
three strikes provision of U.S.C. 28 U.S.C. § 1915(g).
See Dupree v. Palmer, 284 F.3d 1234 (11th Cir.
2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324
(11th Cir. 2001). Thus, this case is emblematic of the
importance of disclosure of previous cases.
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 this 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.
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.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 ...