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Turney v. Thomas

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

July 15, 2019

COREY TURNEY, Plaintiff,
v.
TARLOS THOMAS, 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 two cases he had previously filed in federal courts.[1]

         I. Background

         Plaintiff, an inmate of Suwannee Correctional Institution, commenced this action by filing a complaint under 42 U.S.C. § 1983 in the United States District Court for the Middle District of Florida. (Doc. 1). Because Plaintiff alleges that the events about which he complains occurred at the Wakulla Correctional Institution, a district judge from the Middle District of Florida transferred this case to the Northern District of Florida. (Doc. 5).

         On April 23, 2019, the undersigned ordered Plaintiff to correct several deficiencies, including several incomplete answers with regard to his litigation history. (Doc. 15). The undersigned instructed Plaintiff to amend his complaint to, among other things, “provide a full, complete, and honest disclosure of his litigation history . . . .” (Id. at 2) (emphasis in original). The undersigned advised Plaintiff that, in the event that he did not have records of his prior cases, he should “contact the relevant court(s) to determine” the details of those cases. (Id. at 4). On May 22, 2019, Plaintiff filed an amended complaint. (Doc. 15).

         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 plaintiff failed to disclose existence of a prior case).

         B. The Plaintiff's Omissions

         Section IV of the Northern District of Florida complaint form utilized by the Plaintiff required the Plaintiff to disclose information regarding prior civil cases he filed in state and federal courts. (Doc. 15 at 3). Question C of Section IV asks, “Have you initiated other actions (besides those listed above in Question (A) and (B)) 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)?” (Id. at 7). Plaintiff responded “No, ” thus indicating that he had not initiated other lawsuits in federal or state court relating to his imprisonment or the conditions of his imprisonment. (Id.).

         At the 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 IS TRUE AND CORRECT.” (Id. at 26).

         The Plaintiff failed to disclose his full case history. Prior to filing his amended complaint on May 22, 2019, Plaintiff had filed the following cases in the Middle District of Florida:

(1) Turney v. Sec'y, Fla. Dep't of Corr., No. 3:18-cv-217-TJC-MCR (M.D. Fla. Jan. 13, 2018) (action for injunctive ...

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