United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
se Plaintiff was ordered to file a second amended complaint.
ECF No. 44. Plaintiff has complied, ECF No. 45, and his
second amended complaint, ECF No. 44, has now been reviewed
as is required by 28 U.S.C. § 1915A.
prior Order noted that Plaintiff's amended complaint, ECF
No. 42 at 3-5, did not properly disclose all of
Plaintiff's prior cases. ECF No. 44. Thus, Plaintiff was
required to make that disclosure in the second amended
complaint. ECF No. 42. Plaintiff has not done so.
listed several prior cases, ECF No. 45 at 3-4, 10-12,
however, he did not disclose having filed case number
2:13cv733-SPC-UAM in the Middle District of Florida. That
case was filed on October 17, 2013, while
Plaintiff was incarcerated at Union Correctional
Institution. The case was brought against Defendants J. G.
Keith Cary and Marshall King Hall, and dismissed on November
1, 2013, for failing to state a claim. ECF No. 6 of that
case. Plaintiff also filed a habeas petition in the Middle
District of Florida in May of 2001 which he did not disclose.
That case was dismissed on February 19, 2002. ECF No. 18 of
case number 2:01 cv257-JES-DNF.
this case could be dismissed solely on the basis that
Plaintiff failed to honestly disclose his prior cases.
Redmon v. Lake Cty. Sheriff's Office, 414
Fed.Appx. 221, 226 (11th Cir. 2011) (holding that
“district court was entitled to conclude that Plaintiff
had abused the judicial process when he failed to” show
good cause for not disclosing all prior lawsuits filed);
Young v. Sec'y Florida for Dep't of Corr.,
380 Fed.Appx. 939, 941 (11th Cir. 2010) (finding
“district court did not abuse its discretion when it
sanctioned Young for failing to disclose his prior
cases.”); Attwood v. Singletary, 105 F.3d 610,
613 (11th Cir. 1997). A federal court has inherent power to
control the judicial proceedings and the conduct of the
parties involved. Chambers v. NASCO, Inc., 501 U.S.
32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). These inherent
powers are necessary for “courts to manage their own
affairs” and “achieve the orderly and expeditious
disposition of cases.” Chambers, 501 U.S. at
43, 111 S.Ct. at 2132, 115 L.Ed.2d at 44, quoting Link v.
Wabash R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386,
1388-1389, 8 L.Ed.2d 734 (1962). Thus, “a court has the
power to conduct an independent investigation in order to
determine whether it has been the victim of fraud.”
Chambers, 501 U.S. at 43, 111 S.Ct. at 2132 (citing
Universal Oil Products Co. v. Root Refining Co., 328
U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946)).
Court does take, as a matter of course, an independent
investigation into whether or not litigants truthfully
complete the civil rights complaint forms, especially when a
lack of candor in informing the court of prior lawsuits may
affect the court's jurisdiction. Additionally, in the
wake of 28 U.S.C. § 1915(g), the court must necessarily
investigate the prior filings of a prisoner to enforce the
so-called “three strikes” provision. One of
Plaintiff's omitted cases resulted in the imposition of a
“strike” for failing to state a claim. Such a
dismissal matters and must be disclosed.
this Report and Recommendation could recommend dismissal on
the basis that Plaintiff's complaint did not honestly
disclose his prior litigation, there is another reason this
case cannot proceed. Plaintiff's allegations do not state
a claim against the named Defendants.
only named Defendants in this civil rights case are former
Governor Rick Scott and former Secretary Julie Jones.
Id. at 1. Plaintiff is currently incarcerated at the
Dade Correctional Institution. Id. at 2. Plaintiff
contends that his First and Fourteenth Amendment rights have
been violated because of the Florida Department of
Corrections' failure to recognize the Ethiopian Zion
Coptic faith. Id. at 8. He also contends that his
“right to be treated equally without
discrimination” has been violated. Id.
factual allegations of Plaintiff's second amended
complaint do not state a claim against either Defendant Scott
or Jones. Plaintiff alleged only that the Department of
Corrections' chaplaincy services permits prisoners to
designate their religious preference. Id. at 6.
Plaintiff says there is no “code” from which to
select his religious faith. Id. When Plaintiff
requested information about that issue, chaplaincy services
advised Plaintiff that his religion was not listed because
Plaintiff was “the first inmate to indicate [that] as
[his] religious preference.” Id. at 7.
Plaintiff was informed that there were “technical
problems” with changing computer codes, but he was told
that “a notification can be made in your religious
contact log” to reflect that his religion was
“Ethiopian Zion Coptic.” Id. Plaintiff
was advised to send a request to the chaplain asking to make
that change. Id. at 7.
has provided no factual allegations which provide a basis for
his claim against the Governor. There are no allegations
which show any involvement by Governor Scott and, thus, the
second amended complaint is insufficient to state a claim
against the Governor.
general, the Secretary is responsible for the policies and
procedures of the Department of Corrections. However,
Plaintiff has not alleged any facts showing that there is a
policy or practice which refuses to recognize Plaintiff's
religious faith. Plaintiff has not alleged facts which show
that he is unable to practice his religious faith.
Furthermore, the second amended complaint fails to present
any specific facts against the Secretary. The second amended
complaint is insufficient on its face.
degree Plaintiff could assert that some prison
official violated his First Amendment rights, the second
amended complaint is still insufficient. Plaintiff's
allegations reveal that when he requests recognition of his
religious faith, it will be done. ECF No. 45 at 7. There are
no facts presented which suggest, however, that Plaintiff is
unable to practice his religious beliefs or that he has been
treated differently or less favorably than any other inmate.
Accordingly, the complaint is insufficient to state a claim
for violating either Plaintiff's First or Fourteenth
Amendment rights. It is recommended that this case be
dismissed and that Plaintiff's motion for a temporary
restraining order be denied.
light of the foregoing, it is respectfully
RECOMMENDED that Plaintiff's second
amended complaint, ECF No. 45, be DISMISSED
for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2), that Plaintiff's
motion for a temporary restraining order, ECF No. 43, be
DENIED, and that the Order adopting this
Report and Recommendation direct the Clerk ...