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Frederick v. Wakulla CI Medical Administration Dept.

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

May 13, 2019

JOHN HENRY FREDERICK, Plaintiff,
v.
WAKULLA CI MEDICAL ADMINISTRATION DEPT, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE

         The undersigned recommends that this section 1983 action be dismissed for maliciousness, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1), because the Plaintiff failed to disclose five prior civil actions that he had filed.[1]

         I. Background

         Plaintiff, an inmate of the Florida Department of Corrections (“FDOC”) proceeding pro se and in forma pauperis, commenced this case in August 2018 by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). Plaintiff initially filed this action in the United States District Court for the Middle District of Florida. On August 28, 2018, United States District Judge Gregory A. Presnell ordered this case to be transferred to the Northern District of Florida. On October 30, 2018, Magistrate Judge Charles A. Stampelos issued an order instructing Plaintiff to amend his complaint and use the form approved for use by prisoners in the Northern District of Florida. Plaintiff filed an amended complaint in December 2018.

         On January 3, 2019, Judge Stampelos issued a second order instructing the Plaintiff to amend his complaint. Judge Stampelos advised the Plaintiff:

Section IV of the complaint form requires a prisoner to disclose all prior civil cases filed. Plaintiff has not done so. A significant number of cases were previously filed in the Middle District of Florida and then transferred to this Court. Plaintiff has not fully disclosed the number of cases he has pending, much less disclosed the number of cases which were dismissed for failure to prosecute. Plaintiff “must disclose all prior civil cases” and as instructed on the civil rights complaint form, the failure to do so may result in dismissal of this case.
Moreover, Plaintiff has declared that he has never had any actions dismissed in federal courts because they were frivolous, malicious, or failed, to state a claim. ECF No. 8 at 4. That is not true. Plaintiff previously has had two cases dismissed for failure to state a claim. Case 6:17-cv-349 was dismissed by the Middle District of Florida for that reason in March 2017. More recently, case number 6:18-cv-694 was dismissed by the Middle District because it also failed to state a claim. Plaintiff did not disclose those dismissals and has not truthfully completed the complaint form.

(Doc. 12 at 2). Judge Stampelos imposed a deadline of February 4, 2019, for Plaintiff to amend his complaint and to show cause why this case should not be dismissed for Plaintiff's failure to disclose his prior civil cases.

         On February 14, 2019, Plaintiff filed a 202-page document (including exhibits), which he labeled: “This is in Fact a Civil law Suit Matter” (Doc. 15). Plaintiff did not, however, respond to Judge Stampelos order to show cause why this case should not be dismissed for Plaintiff's failure to answer truthfully the questions on the complaint form.

         The undersigned construed Plaintiff's “This is in Fact a Civil Law Suit Matter” as an amended complaint and directed Plaintiff to amend his complaint using the court-approved form. The undersigned set a deadline of April 1, 2019, for Plaintiff to comply. (Doc. 16).

         Plaintiff filed a motion for clarification. (Doc. 17). He subsequently filed his second amended complaint on the court-approved form. (Doc. 19). The undersigned granted Plaintiff's motion for clarification to the extent that the undersigned clarified the reasons that Plaintiff was ordered to amend his complaint. (Doc. 20). The undersigned also informed Plaintiff that he had still failed to disclose all of his prior civil lawsuits in his amended complaint. The undersigned provided Plaintiff an additional thirty days to amend his complaint and disclose all of his prior civil lawsuits as required by the complaint form. The undersigned specifically warned Plaintiff that his failure to disclose all of his prior civil lawsuits likely would result in the dismissal of this action for maliciousness.

         Plaintiff subsequently filed a third amended complaint, but listed only three prior civil lawsuits. In addition, Plaintiff filed an exhibit titled “Manifest of Injustice/In Bad Faith.” (Doc. 22). Construed liberally, the “Manifest of Injustice/In Bad Faith” appears to be a response to Judge Stampelos's order to show cause as to why Plaintiff has failed to disclose all his prior civil lawsuits and a motion for reconsideration on his motions for appointment of an attorney.

         II. Discussion

         A. Screening for Maliciousness

         The Prisoner Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996), was enacted in “an effort to stem the flood of prisoner lawsuits in federal court.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc); see Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir. 1986) (per curiam) (“Recent years have witnessed an explosion of prisoner litigation in the federal courts.”). Under the PLRA, a federal court is required to conduct an initial screening of a prisoner complaint to determine whether the action is frivolous, malicious or fails to state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B), 1915A.

         Courts may “oblige prisoners to supply available information concerning prior lawsuits that concern their incarceration.” In re Epps, 888 F.2d 964, 969 (2d Cir. 1989). When a complaint form requires a plaintiff to list his litigation history, and the plaintiff's statements are made under penalty of perjury, a plaintiff's affirmative misrepresentation regarding his prior litigation history constitutes abuse of the judicial process warranting dismissal of the case for “maliciousness.” See 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1); Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), abrogated in part on other grounds by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910 (2007); see also, e.g., Sears v. Haas, 509 Fed.Appx. 935, 935-36 (11th Cir. 2013) (holding that dismissal for maliciousness was warranted when the plaintiff failed to disclose cases he had previously filed); Harris v. Warden, 498 Fed.Appx. 962, 964-65 (11th Cir. 2012) (holding that dismissal for abuse of the judicial process was warranted when and inmate failed to disclose prior cases); Jackson v. Fla. Dep't of Corr., 491 Fed.Appx. 129, 132-33 (11th Cir. 2012) (holding that dismissal of an action for maliciousness was warranted when the ...


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