CLEVELAND v. JOHNSON et al

Filing 4

ORDER and REPORT AND RECOMMENDATION signed by Judge MILES DAVIS on 7/6/07.

CLEVELAND v. JOHNSON et al

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Case 3:07-cv-00270-LC-MD

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Filed 07/06/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION FRED CLEVELAND, JR., Plaintiff, vs. Case No. 3:07cv270/LAC/MD

THOMAS E. JOHNSON, et al., Defendants. ______________________________________________________________________ ORDER and REPORT AND RECOMMENDATION Plaintiff, a prisoner proceeding pro se, initiated this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff has also filed a motion to proceed in forma pauperis. (Doc. 2). For the limited purpose of dismissal of this complaint, leave to proceed in forma pauperis will be granted. Plaintiff is currently incarcerated at the Escambia County Jail. His complaint concerns his arrest and prosecution on a charge of violating an injunction. Because plaintiff is proceeding in forma pauperis, the court is required to dismiss the case at any time if it determines that 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). Upon

review of the complaint, the undersigned concludes that this case should be dismissed as malicious. On page four of the civil rights complaint form, Section IV(D), Previous Lawsuits, is the following question: "Have you ever had any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service?" Where there are parenthetical areas to mark either a "Yes" or "No" answer to Question (D), plaintiff marked "No." (Doc. 1, p. 4). The complaint form then directs

Dockets.Justia.com

Case 3:07-cv-00270-LC-MD

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the prisoner to describe each action, attaching additional pages if necessary. Plaintiff disclosed no cases. At the 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., p. 7). Thus, plaintiff has in effect stated that he has initiated no lawsuit in federal court that was dismissed prior to service. This court does attempt to make, as a matter of course, an independent investigation into whether or not litigants truthfully complete the civil rights complaint forms, especially when a lack of candor in informing the court of prior lawsuits may affect the court's jurisdiction. Further, in the light of 28 U.S.C. § 1915(g)1, the court must necessarily investigate the prior filings of a prisoner to enforce the so-called "three strikes" provision. The time spent verifying the cases a plaintiff has filed but failed to identify, as well as the reasons for their dismissal can be considerable.2 The Clerk has advised, and this court may take judicial notice, that plaintiff previously initiated at least one other civil rights action in federal court that was dismissed prior to service: Cleveland v. State of Florida, case number 3:99cv112/LAC.3 The case was filed on March 10, 1999 and dismissed on June 11, 1999 for plaintiff's failure to comply with an order of the court. Plaintiff did not disclose this case in the instant complaint.

S e c ti o n 191 5 ( g ) pro v i d e s th a t "if the priso n e r has, on 3 or m o r e prior occas i o n s , w h i l e i n c a r c e ra t e d or detained in any facility, brought an action or appeal in a co u r t of the United States that w a s dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upo n which relief m a y be granted," the prisoner may not bring an action in forma pauperis unless he is "under imminent d a n g e r of serious physical injury." 28 U . S . C . § 1915(g ) . " [ T ]h e task of counting strikes involves more than sophomo r i c arithmetic. Courts must s e a r c h records of the prisoner's prior federal cases to determine whethe r judicial officers `on 3 or m o r e prior occas i o n s ' en t e r e d orders of dismissa l s an d , if so, whether the reas o n for th e dis m i s s a l s w e r e frivolousness, maliciousness or failure to state a claim upon wh i c h relief may be granted." Rivera v . Allin, 144 F.3d 719, 726 (11 th Cir. 1998) (citing 28 U . S . C . § 1915(g ) ) .
3 2

1

T h i s case m a y be po s i t i v e l y identified as h a v i n g bee n filed by p l a i n t i f f becau s e it b e a r s his

i n m a t e n u m b e r , 757 9 2 .
Case No: 3:07cv270/LAC/MD

Case 3:07-cv-00270-LC-MD

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The 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 a question on the complaint form, as detailed above. Plaintiff knew from reading the complaint form that disclosure of all prior actions was required. 4 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. Therefore, this court should not allow plaintiff's false response to go unpunished. The undersigned recommends that 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 cause without prejudice. Plaintiff is 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 is ORDERED: Plaintiff's motion to proceed in forma pauperis (doc. 2) is GRANTED for the limited purpose of dismissing this action. And it is respectfully RECOMMENDED: 1. That this cause 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. 2. That the clerk be directed to close the file. At Pensacola, Florida, this 6th day of July, 2007. /s/

Miles Davis

MILES DAVIS UNITED STATES MAGISTRATE JUDGE
T h e complaint form expressly warns prisoners: "FAILURE TO DISCLOSE ALL PRIOR CIV I L C A S E S MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY PRIOR C A S E S YO U H A V E FILED , TH A T F A C T M U S T B E D I S C L O S E D AS W E L L . " (Do c . 1, p. 3) (em p h a s i s in original).
Case No: 3:07cv270/LAC/MD
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NOTICE TO THE PARTIES Any objections to these proposed findings and recommendations must be filed within ten 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 shall be served upon all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No: 3:07cv270/LAC/MD