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Easley v. Inch

United States District Court, N.D. Florida, Panama City Division

August 12, 2019

ROBERT EASLEY, Plaintiff,
v.
MARK S. INCH, et al., Defendants.

          ORDER

          T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE.

         This case is before the Court based on the magistrate judge's Report and Recommendation (Doc. 38) and the objection filed by Plaintiff (Doc. 41). Based on my de novo review of the issues raised in the objection, I agree with the magistrate judge that this case is due to be dismissed pursaunt to 28 U.S.C. §1915A(b)(1) and §1915(e)(2)(B)(i).

         Plainiff is an inmate in state custody. He initiated this case is June 2018, alleging that prison officials violated his rights under 42 U.S.C. §1983, Title II of the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act, by denying him therapeutic soft shoes to accommodate his foot and back pain, diabetes, and neuropathy. Plainitff amended his complaint three times, using the civil rights complaint form required by N.D. Fla. Loc. R. 5.7(A).

         Under the heading “PREVIOUS LAWSUITS, ” the complaint form required Plaintiff to disclose his litigation history, both in state and federal court. Pertinent here, Section IV.C of the form required Plaintiff to list “actions [he initiated] 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)” (emphasis in original). The form includes a warning that “FAILURE TO DISCLOSE ALL PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE” (emphasis in original).

         Here, Plaintiff disclosed five prior federal cases, see Doc. 34, at 3-6, but the magistrate judge determined that Plaintiff misrepresented his litigation history by not listing four additional federal cases, see Doc. 38, at 7.[1] Plaintiff takes issue with that finding in his objection. See Doc. 41, at 2-3.

         Plaintiff's objection is well-taken with respect to two of the four cases identified by the magistrate judge. One of the cases (S.D. Fla. No. 0:06cv60010) involved a suit arising out of Plaintiff's children being taken from him by the state welfare agency, not the fact or manner of Plainitff's incarceration or the conditions of his confinement. Another case (11th Cir. No. 13-14257) was an appeal of the final order in one of the cases that Plaintiff listed on the complaint form, not a separate “lawsuit” or “action.” However, there is no merit in Plainitff's objection with respect to the other two cases identified by the magistrate judge. Those cases are the type that the complaint form requires be disclosed, and contrary to Plaintiff's argument in his objection, neither case was listed on the complaint form. For example, although Plaintiff listed a 2010 civil rights action (S.D. Fla. No. 0:10cv60367) against Detective Cruz and others, he did not list a separate 2013 civil rights action (S.D. Fla. No. 0:13cv61332) against the same detective.

         Plaintiff argues that his failure to list the additional cases was an inadvertent “memory lapse, ” not an intentional omission intended to mislead the Court. The problem with that argument is that Plaintiff had three chances to remember these additional cases, yet he failed to list them in any of his three amended complaints.

         Under the circumstances, I agree with the magistrate judge that Plaintiff's failure to fully disclose his litigation history cannot go unpunished and that the appropriate sanction is dismissal of this case without prejudice.[2] See Doc. 38, at 9-10. This will not preclude Plaintiff from refiling this action, id. at 9 n. 4 (discussing the applicable statute of limitations for the claims raised in this case), but it will require him to pay another filing fee. That is a small price to pay for not complying with the directive in the complaint form and it should serve to deter Plaintiff and others like him from not fully disclosing their litigation history in future cases. Accordingly, it is ORDERED that:

1. The magistrate judge's Report and Recommendation is ADOPTED and incorporated by reference in this Order, except as indicated above.
2. This case is DISMISSED without prejudice pursuant to 28 U.S.C. §1915A(b)(1) and §1915(e)(2)(B)(i).
3. All pending motions that predate the Report and Recommendation are DENIED as moot.
4. Plaintiff's motion for leave to amend complaint (Doc. 39) is DENIED, and the fourth-amended complaint (Doc. 40) filed without leave of court is STRICKEN.
5. The Clerk shall CLOSE the case file.

         DONE ...


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