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Nunnally v. Timothy

United States District Court, N.D. Florida, Pensacola Division

June 20, 2018

TREVIN NUNNALLY, SR., Plaintiff,
v.
ELIZABETH TIMOTHY, U.S. MAGISTRATE JUDGE; JUDICIAL CONFERENCE OF THE UNITED STATES, PENSACOLA DIVISION; and CHIEF JUSTICE OF THE U.S. SUPREME COURT, AS OVERSEER OVER JUDICIAL CONFERENCE OF THE UNITED STATES, PENSACOLA DIVISION, Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR., UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on plaintiff's civil rights complaint filed pursuant to 42 U.S.C. § 1983 (doc. 1) and motion to proceed in forma pauperis (doc. 2). Plaintiff's motion to proceed in forma pauperis will be granted for the limited purpose of dismissing this suit.

         Title 28 U.S.C. § 1915 mandates that the district court dismiss an in forma pauperis action if the court determines 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). Upon review of the complaint, the undersigned finds it should be dismissed as malicious.

         On page 3 of the civil rights complaint form, Section IV(B), Previous Lawsuits, is the following question: “Have you initiated other actions in federal court dealing with the same or similar facts/issues involved in this action?” (Doc. 1, p. 3). Where there are parenthetical areas to mark either a “Yes” or “No” answer to Question (B), plaintiff marked “No” and disclosed no cases. (Id.). On page 4 of the civil rights complaint form, Section IV(C), Previous Lawsuits, is the following question: “Have you initiated other actions (besides those listed above in Questions (A) and (B))[1] in either state or federal court 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)?” (Doc. 1, p. 4). Again, plaintiff responded “No” and disclosed no cases. (Id.). The following question also appears on page 4 the complaint form: “Have you ever had any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service. Plaintiff responded “No” and disclosed no cases. At the end of the civil rights complaint form, plaintiff signed his name after the following statement: “I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATEMENTS OF FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT.” (Doc. 1, p. 7). Thus, in effect, plaintiff stated that, at the time he filed his complaint, he had initiated no other action in federal court that dealt with similar facts or issues, had initiated no other action related to the fact or manner of his incarceration, and had never had a federal court case dismissed as frivolous, malicious, failure to state a claim, or prior to service.

         As a matter of course, the court attempts to make an independent investigation into whether or not litigants truthfully complete the complaint forms, especially when a lack of candor in informing the court of prior lawsuits may affect the court's jurisdiction. In light of 28 U.S.C. § 1915(g), [2] the court must necessarily investigate the prior filings of a prisoner to enforce the so-called “three strikes” provision. The information obtained from the disclosure requirements also helps the court evaluate whether the action is related to or should be considered in connection with another case or whether a holding in another case affects the current action. The time spent verifying the cases a plaintiff has filed but failed to identify, as well as the claims raised in those cases and their disposition, can be considerable.

         The court may take judicial notice that, at the time plaintiff filed his complaint in this case, plaintiff had initiated at least 5 other civil actions that required disclosure: Nunnally v. Judicial Branch of the Gov't of the U.S., 1:17cv346-UNA (civil rights complaint regarding fact of incarceration filed in the District of Columbia on February 27, 2017, and dismissed the same day for lack of jurisdiction); Nunnally v. Admin. Office of the U.S. Courts, 1:17cv972-UNA (civil rights complaint regarding fact of incarceration filed in the District of Columbia on May 23, 2017, and dismissed the same day for failure to state a claim); Nunnally v. Judicial Conf. of the U.S. Chief Justice, 1:17cv1736-UNA (civil rights complaint regarding fact of incarceration filed in the District of Columbia on August 21, 2017, and dismissed prior to service on October 5, 2017, for lack of jurisdiction and absolute immunity); Nunnally v. Doe, et al., 1:17cv149-WLS (civil rights complaint regarding fact of incarceration filed in the Middle District of Georgia on August 7, 2017, and dismissed prior to service on January 2, 2018, for failure to comply with an order of the court); Nunnally v. Elizabeth Timothy, U.S. Magistrate Judge and Chief Justice of the Judicial Conference of the U.S., 3:17cv761-LC-CJK (civil rights complaint regarding fact of incarceration filed on October 23, 2017, in the Northen District of Florida with a pending recommendation that the matter be dismissed prior to service for failure to state a claim and a subsequently filed motion for voluntary dismissal). Plaintiff did not disclose these cases despite the complaint form's clear instruction that he do so.

         The court has the 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, it threatens the quality of justice. 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 from reading the complaint form that disclosure of all prior civil cases was required. The complaint form expressly warns prisoners: “FAILURE TO DISCLOSE ALL PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL.”[3] (Doc. 1, p. 3). 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. The court should not allow plaintiff's false responses to go unpunished. 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 case without prejudice.

          Accordingly, it is ORDERED as follows:

         1. Plaintiff's motion to proceed in forma pauperis (doc. 2) is GRANTED for the limited purpose of dismissing this action.

         2. The clerk of court shall assess plaintiff $137.59 as an initial partial filing fee as provided in 28 U.S.C. § 1915(b)(1)(A). This initial partial filing fee is based on the average monthly deposits into plaintiff's account during the 6 months preceding the filing of his motion. The total filing fee in this case is $350.00.

         3. Plaintiff shall have thirty (30) days in which to submit the initial partial filing fee as assessed by the clerk of court. A check from a penal institution, a cashier's check, or a money order should be made payable to “Clerk, U.S. District Court.” Personal checks directly from inmates will not be accepted. The following information shall either be included on the face of the check or money order or attached thereto:

         (1) the full name of the prisoner;

         (2) the prisoner's inmate number; and (3) Northern District of Florida Case Number 3:18cv1424-MCR-CJK.

         Checks or money orders which do not have this information will be returned to the ...


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