KENDRICK v. DIXON et al

Filing 13

ORDER. The magistrate judge's #9 Report and Recommendation is adopted and incorporated by reference in this Order. This case is DISMISSED pursuant to 28 U.S.C. 1915(g). The dismissal is without prejudice to Plaintiff initiating a new case accompanied by payment of the full $402.00 fee. Plaintiff's motion for leave to amend complaint (Doc. #11 ) is DENIED. All other pending motions are DENIED as moot. The Clerk shall close the case file. Signed by JUDGE T KENT WETHERELL II on 08/01/2022. (alb)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
KENNETH JAMES KENDRICK,
Plaintiff,
v.

Case No. 5:22-cv-139-TKW-MJF

RICKY D. DIXON, et al.,
Defendants.
/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 9) and Plaintiff’s objection (Doc. 12). The Court reviewed
the issues raised in the objection de novo as required by 28 U.S.C. §636(b)(1) and
Fed. R. Civ. P. 72(b)(3), and based on that review, the Court agrees with the
magistrate judge’s determination that this case is due to be dismissed under the
“three strikes statute,” 28 U.S.C. § 1915(g).
The Court did not overlook Defendant’s argument that he does not have three
strikes. He is wrong. A case does not need have been dismissed “under §1915(g)”
to count as a “strike.” Instead, the case only needs to have been dismissed “on the
grounds that it is [1] frivolous, [2] malicious, or [3] fails to state a claim upon which
relief may be granted.” 28 U.S.C. §1915(g). Two of the three cases identified by

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the magistrate judge (Doc. 9 at 4-5) were dismissed for failure to state a claim,1 and
the third case was dismissed as an abuse of judicial process (i.e., malicious) based
on Plaintiff’s failure to fully disclose his litigation history. Thus, each of those cases
counts as a “strike.”
Nor did the Court overlook the motion for leave to amend complaint (Doc.
11) that Plaintiff filed contemporaneously with the objection. However, allowing
Plaintiff to file an amended complaint at this point to add the case that he failed to
list in response to the litigation history question on the complaint form would not be
in the interests of justice. See Hood v. Tompkins, 197 F. App'x 818, 819 (11th Cir.
2006) (“[T]he district court was correct to conclude that to allow [the plaintiff] to
then acknowledge what he should have disclosed earlier would serve to overlook his
abuse of the judicial process.”); Merritt v. Dep’t of Corr., 2020 WL 6703794, at *1
(N.D. Fla. Nov. 13, 2020) (rejecting inmate's argument that he should be allowed to
amend his complaint to disclose cases that he previously omitted from his litigation
history because “allowing Plaintiff to amend his complaint at this point would
amount to no penalty for his inexcusable failure to disclose his litigation history and
would not serve as a deterrent to Plaintiff and others from falsely answering the
questions on the civil rights complaint form”); Easley v. Inch, 2019 WL 3774617, at

1

Plaintiff did not list one of these two cases in this complaint, which provides an
independent basis for dismissal of this case. See Kendrick v. Sec’y, Fla. Dep’t of Corr., 2022 WL
2388425, at *3 (11th Cir. July 1, 2022).

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*2 n.2 (N.D. Fla. Aug. 19, 2019) (denying inmate’s motion to amend complaint that
was filed contemporaneously with his objections to the magistrate judge’s Report
and Recommendation because “it would make a mockery of the judicial process if a
plaintiff was allowed to wait until after the magistrate ruled to fully disclose his or
her litigation history”).
Accordingly, it is ORDERED that:
1.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this Order
2.

This case is DISMISSED pursuant to 28 U.S.C. § 1915(g). The

dismissal is without prejudice to Plaintiff initiating a new case accompanied by
payment of the full $402.00 fee.
3.

Plaintiff’s motion for leave to amend complaint (Doc. 11) is DENIED.

4.

All other pending motions are DENIED as moot.

5.

The Clerk shall close the case file.

DONE and ORDERED this 1st day of August, 2022.

__________________________________
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE