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Sapeg v. Florida Department of Corrections

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

September 11, 2019

JUAN JOSE SAPEG, Inmate No. D35003, Plaintiff,



         Plaintiff, an inmate of the Florida Department of Corrections (“FDOC”) proceeding pro se and in forma pauperis, commenced this action by filing a civil rights complaint under 42 U.S.C. § 1983 (ECF Nos. 1, 4). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). Upon consideration, and for the reasons given below, the court recommends that this action be dismissed as malicious.

         Because Plaintiff is a prisoner proceeding in forma pauperis, the court must review the complaint and dismiss it if satisfied the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. A plaintiff's affirmative misrepresentation regarding his prior litigation history, when the complaint form required disclosure of such history and the plaintiff's statements were made under penalty of perjury, constitutes abuse of the judicial process warranting dismissal of the case without prejudice as “malicious” under § 1915(e)(2)(B)(i) and § 1915A(b)(1). See 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by Jones v. Bock, 549 U.S. 199 (2007); see also, e.g., Sears v. Haas, 509 Fed.Appx. 935, 935B36 (11th Cir. 2013) (unpublished) (dismissal of action without prejudice as malicious for abuse of judicial process was warranted where inmate failed to disclose case he had filed against prison officials just five months earlier, and failed to disclose another case he filed six years earlier which had been dismissed prior to service for failure to state a claim); Harris v. Warden, 498 Fed.Appx. 962, 964B65 (11th Cir. 2012) (unpublished) (dismissal of action without prejudice for abuse of judicial process was warranted where inmate made no attempt to disclose his prior cases in his original and amended complaints); Jackson v. Fla. Dep't of Corr., 491 Fed.Appx. 129, 132B33 (11th Cir. 2012) (unpublished) (dismissal of action without prejudice as malicious for prisoner plaintiff's abuse of judicial process was warranted where plaintiff failed to disclose existence of one prior case, and disclosed existence of another prior case but still failed to disclose that it was dismissed as frivolous, malicious, failing to state a claim, or prior to service); Redmon v. Lake Cnty. Sheriff's Office, 414 Fed.Appx. 221, 226 (11th Cir. 2011) (unpublished) (prisoner's failure to disclose previous lawsuit filed in district court while he was a prisoner constituted abuse of judicial process warranting dismissal of his pro se § 1983 action, because prisoner's misrepresentation was not excused by his explanation that he misunderstood complaint form on which he represented, under penalty of perjury, that he did not file any prior lawsuits with similar facts or otherwise relating to his imprisonment or conditions of imprisonment); Shelton v. Rohrs, 406 Fed.Appx. 340, 340B41 (11th Cir. 2010) (unpublished) (affirming dismissal of action without prejudice for prisoner plaintiff's abuse of judicial process where plaintiff failed to disclose four previous civil actions; even if prisoner did not have access to his legal materials, he would have known that he filed multiple previous lawsuits); Young v. Sec'y for Dep't of Corr., 380 Fed.Appx. 939, 940B41 (11th Cir. 2010) (unpublished) (district court did not abuse its discretion when it sanctioned Florida prisoner proceeding in forma pauperis by dismissing his civil rights lawsuit sua sponte for not disclosing all of the information that was known to him with regard to his prior cases, even though prisoner could not afford to pay copying and certification costs charged by Florida state courts and he no longer had documents necessary to answer fully due to FDOC rule prohibiting possession of “excess legal material”); Hood v. Tompkins, 197 Fed.Appx. 818, 819 (11th Cir. 2006) (unpublished) (dismissal of pro se state inmate's § 1983 action as sanction for providing false answers to unambiguous questions on complaint form regarding prior lawsuits was not an abuse of discretion, even though inmate conceded in his objections to magistrate judge's report and recommendation that his disclosures were incomplete, finding that to allow inmate to continue with suit would have served to overlook his abuse of judicial process).

         In general, a dismissal without prejudice does not amount to an abuse of discretion. See Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983) (holding that dismissal without prejudice, even for a minor violation of a court order, was not an abuse of discretion). Such a dismissal should be allowed absent some plain prejudice other than the mere prospect of a second lawsuit. See Kotzen v. Levine, 678 F.2d 140 (11th Cir. 1982).

         Having conducted a thorough review, the court is satisfied this action is malicious and thus recommends dismissal under sections 1915(e)(2)(B)(i) and 1915A(b)(1). Section IV of the complaint form requires Plaintiff to disclose information regarding prior civil cases he filed in state and federal court (ECF No. 1 at 5B7). Question D of Section IV asks whether Plaintiff has had any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service (id. at 6). Plaintiff responded “No” to this question (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 STATEMENTS OF FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT” (id. at 17).

         As routinely recognized by this court, the information from Section IV of the form is useful to the court in many ways:

. . . it allows efficient consideration of whether the prisoner is entitled to pursue the current action under the “three strikes” provision of the Prison Litigation Reform Act; it allows consideration of whether the action is related to, or otherwise should be considered in conjunction with or by the same judge who presided over, another action; it allows consideration of whether any ruling in the other action affects the prisoner's current case. All of these things are appropriately considered in connection with the preliminary review of such a complaint under the Prison Litigation Reform Act.

Spires v. Taylor, Order of Dismissal, No. 3:00cv249/RH (N.D. Fla. Oct. 27, 2000). Further, because prisoner plaintiffs generally proceed pro se, the information helps the court determine their litigation experience and familiarity with the legal terrain of the current action. The time spent verifying the cases a plaintiff has filed but failed to identify, as well as the disposition of those cases, can be considerable.

         The court takes judicial notice that prior to commencing the instant action on September 21, 2018, Plaintiff filed Sapeg v. The State of New York, et al. in the Southern District of New York, a federal court. See Sapeg v. The State of New York, et al., No. 1:10cv2897/LAP, Complaint, ECF No. 2 (S.D.N.Y. Apr. 5, 2010).[1]The court dismissed this prisoner civil rights suit because it failed to state a claim on which relief could be granted and sought monetary relief from a defendant who was immune from relief under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). See Sapeg, No. 1:10cv2897/LAP, Order of Dismissal, ECF No. 4 (S.D.N.Y. Apr. 5, 2010). This case was responsive to Question D of Section IV of the complaint form, but Plaintiff failed to identify the case in response to that question, or any other question regarding his litigation history.

         The court has authority to control and manage matters such as this case pending before it, and Plaintiff's pro se status does not excuse him from conforming to acceptable standards in approaching the court. The quality of justice is threatened if the court cannot rely on the statements or responses made by the parties. The court will not tolerate false responses or statements in any pleading or motion filed before it. Here, Plaintiff falsely responded to a question on the complaint form, as detailed above. Plaintiff knew, or from reading the complaint form should have known, that disclosure of his prior action was required and that dismissal of this action may result from his untruthful answers.[2] 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. Furthermore, if word spread around the prisons that the questions on the complaint form could be circumvented in such a manner, the court might be confronted with widespread abuse from its many prisoner litigants. Therefore, this court should not allow Plaintiff's false response to go unpunished.

         An appropriate sanction for Plaintiff's abuse of the judicial process in not providing the court with true factual statements or response is to dismiss this cause without prejudice.[3], [4] See Rivera, 144 F.3d at 731 (dismissal of an action without prejudice as a sanction for a pro se prisoner's failure to disclose the existence of a prior lawsuit, where that prisoner was under penalty of perjury, is proper); Spires, No. 3:00cv249/RH, Order (N.D. Fla. Oct. 27, 2000) (“Dismissal without prejudice is not too severe a sanction under these circumstances.”). Plaintiff should also be warned that such false responses, filed herein or in the future, will not be ignored and may result in more severe and long-term sanctions. See Warren v. Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994) (per curiam) (pro se, in forma pauperis prisoner's misrepresentation about previous lawsuits may violate Rule 11).

         Accordingly, it respectfully RECOMMENDED:

         1. That this case be DISMISSED WITHOUT PREJUDICE as malicious, pursuant to 28 U.S.C. ยง ...

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