United States District Court, N.D. Florida, Pensacola Division
JUAN JOSE SAPEG, Inmate No. D35003, Plaintiff,
FLORIDA DEPARTMENT OF CORRECTIONS et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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935B36 (11th Cir. 2013) (unpublished) (dismissal of action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964B65 (11th Cir. 2012) (unpublished) (dismissal of action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2012) (unpublished) (dismissal of action without prejudice as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).
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).
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).
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.
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).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.
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. 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.
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.,  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).
it respectfully RECOMMENDED:
this case be DISMISSED WITHOUT PREJUDICE as
malicious, pursuant to 28 U.S.C. § ...