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Moton v. Bayolo

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

May 28, 2019

LEWIS MARTIN MOTON, JR., Plaintiff,
v.
DR BAYOLO, NURSE PRACTITIONER M. VANDERMARK, Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se and in forma pauperis, has filed a civil rights complaint under 42 U.S.C. § 1983. ECF Doc. 1. The complaint is now before the Court for preliminary screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons which follow, the undersigned respectfully recommends that the complaint be dismissed for abuse of the judicial process. Plaintiff failed to disclose at least five (5) prior cases that he filed, including at least one prior case which was dismissed for failure to state a claim.

         Section IV of the civil rights complaint form filled out by Plaintiff, titled Previous Lawsuits, asks: “C. Have you initiated other actions . . . 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)?”; and “D. Have you ever had any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service?” ECF Doc. 1 at 4. The form requires Plaintiff to identify and describe any cases responsive to the questions.

         In response to question C., about the filing of any other federal or state law suits, Plaintiff disclosed one federal case, which he indicated dealt with the fact or manner of his incarceration, Moton v. Cowart from the Middle District of Florida in 2006. ECF Doc 1 at 4. In the response to question D., about dismissal of any case as failing to state a claim, prior to service, etc., Plaintiff marked “no” and did not disclose any cases. Id.

         At the end of the complaint, 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.” Id. at 7. The complaint contained no continuation pages or attachments. Thus, Plaintiff has sworn that at the time he filed the complaint, he had not had any federal cases dismissed as failing to state a claim or before service and had not filed any federal cases related to the fact or manner of his incarceration other than Moton v. Cowart filed in approximately 2006. The complaint was signed and submitted to prison officials for mailing on February 4, 2019. Id. at 1.

         As a matter of course, the Court attempts to make an independent investigation into whether 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), [1] the Court must necessarily investigate the prior filings of a prisoner to enforce the so-called “three strikes” provision. 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, February 4, 2019, he had filed under his name and Florida Department of Corrections registration number, 706021, at least five (5) cases which he failed to disclose to the Court:

• 5:12cv2, N.D. Fla. (§ 1983 complaint filed 1/5/12)
• 6:08cv381, M.D. Fla. (habeas petition filed 3/12/08)
• 8:09cv135, M.D. Fla (§ 1983 complaint filed 1/26/09)
• 8:09cv1986, M.D. Fla (§ 1983 complaint filed 9/25/09)
• 6:18cv236, M.D. Fla. (§ 1983 complaint filed 2/12/18)

         Plaintiff did not disclose these prior federal actions despite the complaint form's clear instructions. Additionally, 6:18cv236 and 5:12cv2 were dismissed prior to service, while 8:09cv135 was dismissed for failure to state a claim. Plaintiff did not disclose these cases despite the clear language of question IV.D. on the complaint form.

         The Court has the authority to control and manage matters 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.”[2] (ECF Doc 1 at 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. See Bratton v. Secretary, No. 2:10cv517-FtM-29DNF, 2012 WL 2913171 ...


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