OLIVER v. GAFFORD et al

Filing 6

ORDER ADOPTING THE MAGISTRATE JUDGES REPORT AND RECOMMENDATION re 1 - The magistrate judges report and recommendation (doc. 4 ) is ADOPTED and incorporated into this order by reference. The clerk shall enter judgment stating: "All claims are dismissed without prejudice." Signed by SENIOR JUDGE WILLIAM STAFFORD on 3/16/2015. (sac)

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORID
PANAMA CITY DIVISION

WARREN OLIVER,
Plaintiff,
v.

5:15cv16–WS/CJK

SGT. GAFFORD, et al.,
Defendants.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the court is the magistrate judge’s report and recommendation (doc.
4) docketed February 12, 2015. The magistrate judge recommends that this case be
dismissed as malicious based upon the plaintiff’s failure to completely disclose his
prior litigation history. The plaintiff has filed objections (doc. 5) to the report and
recommendation.
The magistrate judge cites three cases that the plaintiff failed to disclose on
his civil rights complaint form filed in this case on February 9, 2015. The plaintiff
does not dispute that all three should have been disclosed. He simply states that he
“forgot,” that “he did the best he could without an education,” and that “he is going

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threw [sic] mental issues because of the abuse by FDOC officials.” One of the
cases “forgotten” by the plaintiff was filed in the Middle District of Florida on
December 18, 2014, less than two months before he filed this case. The case in the
Middle District remains pending at this time. Another of the “forgotten” cases was
originally filed in the Northern District of Florida on October 1, 2014, was soon
after transferred to the Middle District of Florida, and was dismissed by the Middle
District on November 5, 2014, approximately two months before this case was
filed. The third “forgotten” case, while older, was filed on June 7, 2013, less than
two years before this case was filed. As the magistrate judge correctly noted: “The
recency . . . of these cases belies any claim . . . that [the plaintiff’s] non-disclosure
should be excused by memory failure or confusion over the disclosure
requirement.”1 See Schmidt v. Navarro, 576 F. App’x 897, 899–900 (11th Cir.
2014) (affirming district court’s dismissal of inmate’s complaint as malicious
under 28 U.S.C. § 1915(e)(2)(B)(i) where inmate failed to disclose two prior
federal actions on his prisoner complaint form).
The court having concluded that the magistrate judge’s report and

1

The plaintiff does not contend that he will be precluded from refiling his
claims due to the running of the statute of limitations. Indeed, the plaintiff alleges
in his complaint that the operative facts took place in 2013–14, well within the
limitations period.

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recommendation should be adopted, it is ORDERED:
1. The magistrate judge’s report and recommendation (doc. 4) is
ADOPTED and incorporated into this order by reference.
2. The plaintiff’s complaint and this action are DISMISSED WITHOUT
PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(i) for failure to truthfully and
completely disclose prior litigation history.
3. The clerk shall enter judgment stating: “All claims are dismissed without
prejudice.”
DONE AND ORDERED this 16th

day of

March

, 2015.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE