SCHMIDT v. NAVARRO et al.

Filing 18

ORDER ACCEPTING 13 REPORT AND RECOMMENDATION: Case is DISMISSED WITHOUT PREJUDICE as malicious under 28 U.S.C.§1915(e)(2)(B)(i) for plaintiff's abuse of the judicial process. All pending motions are DENIED as MOOT, and Clerk directed to close the file. Signed by SENIOR JUDGE MAURICE M PAUL on 3/6/2013. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DAN SCHMIDT,
Plaintiff,
v.

CASE NO. 5:12-cv-00305-MP-CJK

KRISTA NAVARRO, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Doc. 13, the Report and Recommendation of the
Magistrate Judge, recommending that this case be dismissed for plaintiff's failure to identify two
prior federal cases which had been dismissed with prejudice prior to service, Schmidt v.

Arnold, et al., Case Number 5:95cv50021/RV and dismissed for abuse of the judicial
process, Schmidt v. Wade, et al., Case Number 5:95cv50215/RV. On the form provided by
the Court for Mr. Schmidt's current case, he was warned that "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." Additionally, Mr. Schmidt 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.” Thus, his argument in his objections, Doc. 14, that he
did not receive due process is without merit. He also admitted to the existence of these cases in
his objections and the subsequent "supplements" to those objections, but claims to have simply
forgotten them because of their age. Upon consideration, the Court finds that dismissal without

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prejudice is the proper sanction for the plaintiff's lack of candor. Simply allowing the plaintiff to
inaccurately portray his prior history and then amend his pleading if his prior suits are detected
would be ineffective to deter such conduct. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.1998).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is accepted and
incorporated herein.

2.

This case is DISMISSED WITHOUT PREJUDICE as malicious under 28 U.S.C.
§1915(e)(2)(B)(i) for plaintiff’s abuse of the judicial process.

3.

All pending motions are DENIED as MOOT, and the Clerk is directed to close
the file.

DONE AND ORDERED this 6th day of March, 2013

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 5:12-cv-00305-MP-CJK