United States District Court, N.D. Florida, Pensacola Division
JIMI P. MCDONALD, Plaintiff,
MICHAEL A. ADKINSON, JR., et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
a prisoner proceeding pro se and in forma pauperis, filed a
civil rights complaint under 42 U.S.C. § 1983 (ECF No.
1). Upon review of the complaint, the undersigned concludes
the case should be dismissed as malicious for Plaintiff's
abuse of the judicial process in failing to respond
truthfully to questions on the complaint form regarding his
28 U.S.C. § 1915 mandates that the district court
dismiss an in forma pauperis action if the court determines
the action is “(i) frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B). On page 4
of the civil rights complaint form, Section IV(C), Previous
Lawsuits, is the following question: “Have you
initiated other actions (besides those listed above in
Questions (A) and (B)) 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)” (ECF No.
1 at 5)? Where the complaint form asks for a
“Yes” or “No” response, Plaintiff
checked “No” and disclosed no cases
(id.). Also on page 4 of the civil rights complaint
form, Section IV(D), is the question: “Have you ever
had any actions in federal court dismissed
as frivolous, malicious, failing to state a claim, or prior
to service? If so, identify each and every case so
dismissed” (id.). Again, where the complaint
form asks for a “Yes” or “No”
response, Plaintiff checked “No” and disclosed no
end of the civil rights complaint form, Plaintiff signed his
name after the following statement: “I DECLARE
UNDER PENALTY OF PERJURY THAT THE FOREGOING STATEMENTS OF
FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND
CORRECT” (id. at 12). Thus, Plaintiff
has in effect stated that at the time he signed and filed his
complaint, he had initiated no other action regarding the
fact or manner of his incarceration and never had a federal
court action dismissed as frivolous, malicious, or for
failing to state a claim.
matter of course, the court attempts to make an independent
investigation into whether or not litigants truthfully
complete the complaint forms, especially when a lack of
candor in informing the court of prior lawsuits may affect
the court's jurisdiction. In light of § 1915(g), the
court must necessarily investigate the prior filings of a
prisoner to enforce the so-called “three strikes”
provision. See 28 U.S.C. § 1915(g) (providing
that a prisoner who has had 3 or more cases or appeals
dismissed on the grounds they are frivolous, malicious, or
fail to state a claim upon which relief may be granted cannot
proceed in forma pauperis in any future suit he files as a
prisoner unless he is under imminent danger of serious
physical injury). The information obtained from the
disclosure requirements also helps the court evaluate whether
the action is related to or should be considered in
connection with another case, or whether a holding in another
case affects the current action. The time spent verifying the
cases a plaintiff has filed but failed to identify, as well
as the claims raised in those cases and their disposition,
can be considerable.
court takes judicial notice that at the time Plaintiff filed
his complaint in this case on June 27, 2019, he had initiated
at least one other civil action that required
disclosure: McDonald v. White, et al., Case No.
1:11-cv-2006, Complaint, ECF No. 1 (N.D. Ill. Mar. 23, 2011);
Written Opinion, ECF No. 5 (N.D. Ill. May 5, 2011) (civil
rights action dismissed as frivolous prior to
service). It appears he initiated three additional
cases that required disclosure: McDonald v. Smith,
Case No. 2:15cv566-WED (E.D. Wis. May 11, 2015) (habeas
corpus action); McDonald v. Cecil, et al., Case No.
3:11cv357-NJR-DGW (S.D. Ill. Apr. 28, 2011) (civil rights
action regarding conditions of confinement); and McDonald
v. Lovell, et al., Case No. 3:11cv762-SCW (S.D. Ill.
Aug. 25, 2011) (civil rights action regarding conditions of
confinement). Plaintiff did not disclose any of these prior
civil actions despite the complaint form's clear
instruction that they be disclosed.
court has the authority to control and manage matters such as
this pending before it, and Plaintiff's pro se status
does not excuse him from conforming to acceptable standards
in approaching the court. 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. Here, Plaintiff falsely responded to questions on
the complaint form, as detailed above. Plaintiff knew from
reading the complaint form that disclosure of the prior civil
cases was required. The complaint form expressly warns
prisoners: “FAILURE TO DISCLOSE ALL
PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE.
IF YOU ARE UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT
FACT MUST BE DISCLOSED AS WELL” (ECF No. 1 at 4). If
Plaintiff suffered no penalty for his untruthful response,
there would be little or no disincentive for his attempt to
evade or undermine the purpose of the form. The court should
not allow Plaintiff's false responses to go unpunished.
An appropriate sanction for Plaintiff's abuse of the
judicial process in not providing the court with true factual
statements or responses is to dismiss this case without
prejudice. 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
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).
it is respectfully RECOMMENDED:
this action be DISMISSED WITHOUT PREJUDICE
as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
for Plaintiff's abuse of the judicial process.
the clerk be directed to close the file.
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only and does not
control. A copy of objections must be served upon all
other parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to challenge on ...