United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge.
an inmate in the custody of the Alachua County Jail,
initiated this case by filing a handwritten letter purporting
to bring a claim for the death of his father against the
United States Military for using Agent Orange during the
Vietnam War. ECF No. 1. Having found the handwritten letter
insufficient to proceed with his case, the Court ordered
Plaintiff to complete a prisoner civil rights complaint
pursuant to 42 U.S.C. § 1983 and a motion for leave to
proceed as a pauper. ECF No. 3.
Plaintiff filed a First Amended Complaint naming as
Defendants the United States Department of Defense as well as
eight individual chemical manufacturing companies. ECF No. 4
at 2. Plaintiff alleges the defendants conspired and failed
to warn U.S. soldiers of the dangers of Agent Orange, which
caused the deaths of his mother and father and caused
Plaintiff to be physically handicapped since birth. Plaintiff
also filed a motion for leave to proceed as a pauper. ECF No.
case is due to be dismissed because Plaintiff has failed to
disclose and truthfully describe previous lawsuits and
because he is barred from proceeding as a pauper pursuant to
the three-strikes bar under 28 U.S.C. § 1915(g).
cursory initial screening of Plaintiff's complaint
pursuant to 28 U.S.C. § 1915A reveals that Plaintiff
executed the civil rights complaint form under penalty of
perjury. ECF No. 4 at 8. The Court's civil rights
complaint form requires prisoners to disclose information
regarding previous lawsuits. Id. at 3-4. Prisoners
are required to disclose whether they have initiated actions
in state or federal court “with the same or similar
facts/issues involved in this action, ” or “that
relate to the fact or manner of [their] incarceration
(including habeas corpus petitions) or the conditions of
[their] 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. Further, prisoners must identify any federal
court actions that were dismissed as frivolous, malicious,
failing to state a claim, or prior to service. Id.
response, Plaintiff indicated he had not filed any prior
lawsuits in federal court dealing with the same or similar
facts/issues involved in this action; had not filed any prior
actions in state or federal court relating to the fact or
manner of his incarceration or the conditions of his
confinement; and did not have any actions in federal court
dismissed as frivolous, malicious, failing to state a claim,
or prior to service. ECF No. 4 at 3-4.
a search of the PACER database reveals that Plaintiff has had
three prior lawsuits dismissed as malicious or for failure to
state a claim upon which relief may be granted. Dillard
v. Goodman, No. 1:11-cv-21-SPM-GRJ (N.D. Fla. Jan. 4.
2012) (dismissing without prejudice for failure to state a
claim upon which relief may be granted); Dillard v.
Dep't of Corr., No. 5:12-cv-184-RS-EMT (N.D. Fla.
June 27, 2012) (dismissing without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) as malicious); See Dillard
v. Dep't of Corr., No. 3:12-cv-286-MCR-EMT (N.D.
Fla. Jul. 26, 2012) (dismissing without prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) as
absence of any basis for excusing a plaintiff's lack of
candor, failure to disclose and truthfully describe previous
lawsuits as clearly required on the Court's prisoner
civil rights complaint form warrants dismissal of the
complaint for abuse of the judicial process. See Redmon
v. Lake Cty. Sheriff's Office, No. 10-11070, 2011 WL
576601, at *4 (11th Cir. Feb. 10, 2011). In
Redmon, the Eleventh Circuit affirmed the dismissal
of a prisoner's civil rights complaint that did not
disclose a previous lawsuit. The plaintiff argued that he
“misunderstood” the form, but the Eleventh
Circuit held that the district court had the discretion to
conclude that the plaintiff's explanation did not excuse
his misrepresentation because the complaint form
“clearly asked Plaintiff to disclose previously filed
lawsuits . . . .” Id. The Eleventh Circuit
determined that dismissal was an appropriate sanction:
Under 28 U.S.C. § 1915, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative
tactics warrants dismissal.” Attwood v.
Singletary, 105 F.3d 610, 613 (11th Cir. 1997). In
addition, a district court may impose sanctions if a party
knowingly files a pleading that contains false contentions.
Fed.R.Civ.P. 11(c). Although pro se pleadings are
held to a less stringent standard than pleadings drafted by
attorneys, a plaintiff's pro se status will not
excuse mistakes regarding procedural rules. McNeil v.
United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,
124 L.Ed.2d 21 (1993).
addition to revealing whether a prisoner is subject to the
PLRA's “three strikes” provision, the
information required on the form assists the Court in
efficiently managing prisoner litigation by showing whether a
complaint is related to or is affected by another case. The
failure to exercise candor in completing the form, while
acknowledging that the answers are made under penalty of
perjury, impedes the Court in managing its caseload and
merits the sanction of dismissal. See Redmon, 2011
WL 576601, at *4; Johnson v. Crawson, No.
5:08-cv-300, 2010 WL 1380247, at *2 (N.D. Fla. Mar. 3, 2010)
(“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.”); Paulcin v.
McNeil, No. 3:09-cv-151, 2009 WL 2432684, at *2 (N.D.
Fla. Aug. 6, 2009) (“If the court cannot rely on the
statements or responses made by the parties, it threatens the
quality of justice. The court will not tolerate false
responses or statements in any pleading or motion filed
before it.”). Plaintiff's failure to disclose his
prior lawsuits warrants dismissal.
addition to dismissal for abuse of the judicial process,
Plaintiff is subject to the three-strikes bar because, as
previously mentioned, he has had three or more prior civil
actions or appeals dismissed on the grounds that they were
frivolous, malicious, or failed to state a claim upon which
relief may be granted. Plaintiff is therefore barred from
proceeding as a pauper in a civil action unless he is under
“imminent danger of serious physical injury.”
relevant inquiry is “whether [the] complaint, as a
whole, alleges imminent danger of serious physical
injury.” Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004). General allegations that are not grounded
in specific facts which indicate that serious physical injury
is imminent are not sufficient to invoke the exception to
§ 1915(g). See Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003). The plaintiff must make
“specific fact allegations of ongoing serious physical
injury, or a pattern of misconduct evidencing the likelihood
of imminent serious physical injury.” Id.
Vague allegations of harm and unspecific references to injury
are insufficient. White v. Colorado, 157 F.3d 1226,
1231 (10th Cir. 1998). A claim by a prisoner that he faced a
past imminent danger is insufficient to allow him to proceed
in forma pauperis pursuant to the imminent danger
exception. Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir. 1999) (holding that the exception is not triggered
where threat of assault by other prisoners ceased to exist
when plaintiff was placed in administrative confinement prior
to filing of his complaint); see also Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (imminent
danger exception is construed narrowly and available only
“for genuine emergencies, ” where “time is
pressing” and “a threat . . . is real and
does not specifically allege he is under imminent danger of
serious physical injury, and the facts asserted in his
Complaint do not support such a finding. A prisoner who is no
longer entitled to proceed as a pauper must pay the filing
fee at the time he initiates the suit, and failure to do so
warrants dismissal without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). ...