United States District Court, N.D. Florida, Panama City Division
KENT WETHERELL, II UNITED STATES DISTRICT JUDGE.
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).
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).
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).
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. Plaintiff takes issue with that finding in
his objection. See Doc. 41, at 2-3.
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.
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.
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. 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
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
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
5. The Clerk shall CLOSE the case file.