BALL v. LONG

Filing 8

REPORT AND RECOMMENDATION to dismiss 1 Complaint filed by TRAVIS BALL; denying 5 Motion to Appoint Counsel ; granting 7 Motion for Leave to Proceed in forma pauperis ; granting 2 Motion for Leave to Proceed in forma pauperis. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 11/26/2024 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRAVIS BALL,

:
:
Plaintiff,
:
VS.
:
:
Sheriff GARY LONG,
:
:
Defendant.
:
__________________________________

NO. 5:24-cv-313-TES-CHW

PROCEEDINGS UNDER 42 U.S.C. §1983
BEFORE THE U. S. MAGISTRATE JUDGE

ORDER AND RECOMMENDATION OF DISMISSAL
Plaintiff Travis Ball, a prisoner incarcerated in Dooly State Prison in Unadilla,
Georgia, filed a pro se complaint seeking relief under 42 U.S.C. § 1983. ECF No. 1. The
Court ordered that he file a recast complaint, and he has now done so. ECF No. 4; ECF
No. 6. Plaintiff also moved to proceed in forma pauperis. ECF No. 2. The Court ordered
that he supplement his motion to proceed without prepayment of the filing fee with an
updated certified copy of his trust fund account statement, and he has now done so. ECF
No. 4; ECF No. 7. Plaintiff also moved for appointment of counsel. ECF No. 5. It is
ORDERED that Plaintiff’s motions to proceed in forma pauperis (ECF No. 2; ECF No.
7) are GRANTED. It is ORDERED that his motion for appointment of counsel (ECF No.
5) is DENIED. Following review of Plaintiff’s complaint, it is RECOMMENDED that
Plaintiff’s action be DISMISSED without prejudice.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Plaintiff seeks leave to proceed without prepayment of the filing fee or security
therefor pursuant to 28 U.S.C. § 1915(a). ECF No. 2; ECF No. 7. As it appears Plaintiff

is unable to pay the cost of commencing this action, his applications to proceed in forma
pauperis are hereby GRANTED.
However, even if a prisoner is allowed to proceed in forma pauperis, he must
nevertheless pay the full amount of the $350.00 filing fee. 28 U.S.C. § 1915(b)(1). If the
prisoner has sufficient assets, he must pay the filing fee in a lump sum. If sufficient assets
are not in the account, the court must assess an initial partial filing fee based on the assets
available. Despite this requirement, a prisoner may not be prohibited from bringing a civil
action because he has no assets and no means by which to pay the initial partial filing fee.
28 U.S.C. § 1915(b)(4). In the event the prisoner has no assets, payment of the partial
filing fee prior to filing will be waived.
Plaintiff’s submissions indicate that he is unable to pay the initial partial filing fee.
Accordingly, it is hereby ORDERED that his complaint be filed and that he be allowed to
proceed without paying an initial partial filing fee.
I.

Directions to Plaintiff’s Custodian

Hereafter, Plaintiff will be required to make monthly payments of 20% of the
deposits made to his prisoner account during the preceding month toward the full filing
fee. The clerk of court is DIRECTED to send a copy of this Order to Dooly State Prison.
It is ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the
sheriff of any county wherein he is held in custody, and any successor custodians, shall
each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the
preceding month’s income credited to Plaintiff’s account at said institution until the
$350.00 filing fee has been paid in full. 28 U.S.C. § 1915(b)(2). In accordance with
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provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s custodian is hereby
authorized to forward payments from the prisoner’s account to the Clerk of Court each
month until the filing fee is paid in full, provided the amount in the account exceeds $10.00.
It is ORDERED that collection of monthly payments from Plaintiff’s trust fund account
shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of
Plaintiff’s lawsuit or the granting of judgment against him prior to the collection of the full
filing fee.
II.

Plaintiff’s Obligations Upon Release

An individual’s release from prison does not excuse his prior noncompliance with
the provisions of the PLRA. Thus, in the event Plaintiff is hereafter released from the
custody of the State of Georgia or any county thereof, he shall remain obligated to pay
those installments justified by the income to his prisoner trust account while he was still
incarcerated. The Court hereby authorizes collection from Plaintiff of any balance due on
these payments by any means permitted by law in the event Plaintiff is released from
custody and fails to remit such payments. Plaintiff’s Complaint may be dismissed if he is
able to make payments but fails to do so or if he otherwise fails to comply with the
provisions of the PLRA.
MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff filed a motion requesting that the Court appoint counsel to represent him
in this lawsuit. ECF No. 5. As this is Plaintiff’s first request for counsel, the Court advises
Plaintiff that “[a]ppointment of counsel in a civil case is not a constitutional right.” Wahl
v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). Appointment of counsel is a privilege
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that is justified only by exceptional circumstances. Id. In deciding whether legal counsel
should be provided, the Court considers, among other factors, the merits of Plaintiff’s claim
and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir.
1989). 1
In accordance with Holt, and upon a review of the record in this case, the Court
notes that Plaintiff has set forth the essential factual allegations underlying his claim, and
that the applicable legal doctrines are readily apparent. It is recommended that Plaintiff’s
action be dismissed for failure to state a claim upon which relief may be granted and as
malicious because Plaintiff failed to disclose his litigation history. Thus, counsel is not
needed, and Plaintiff’s Motion for Appointment of Counsel (ECF No. 5) is DENIED.
PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT
I.

Standard of Review
The PLRA obligates the district courts to conduct a preliminary screening of every

complaint filed by a prisoner who seeks redress from a government entity, official, or
employee. See 28 U.S.C. § 1915A(a). Screening is also required under 28 U.S.C. § 1915(e)
when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of
review is the same. When conducting preliminary screening, the Court must accept all
factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th

The federal in forma pauperis statute authorizes courts to “request an attorney to represent
any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The statute does not,
however, provide any funding to pay attorneys for their representation or authorize courts
to compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist.
Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
1

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Cir. 2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010);
Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in
this case, are “‘held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.’” Hughes, 350 F.3d at 1160 (citation omitted). Still,
the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to
state a claim upon which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “‘lacks an arguable basis either in law or in fact.’” Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (citation omitted). The Court may dismiss
claims that are based on “‘indisputably meritless legal’” theories and “‘claims whose
factual contentions are clearly baseless.’” Id. (citation omitted). A complaint fails to state
a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a
complaint “must be enough to raise a right to relief above the speculative level” and cannot
“‘merely create[] a suspicion [of] a legally cognizable right of action.’” Twombly, 550 U.S.
at 555 (citation omitted). In other words, the complaint must allege enough facts “to raise
a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at
556. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or a
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statute of the United States; and (2) the act or omission was committed by a person acting
under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995).
If a litigant cannot satisfy these requirements or fails to provide factual allegations in
support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich,
340 F.3d 1279, 1282-84 (11th Cir. 2003).
II.

Factual Allegations
Plaintiff states that while he was incarcerated as a federal pretrial detainee in the

Butts County Detention Center for eight months, from November 1, 2023 to July 2, 2024,
he was “fed square bread and potatoes (either in the form of french fries or cream or mashed
potatoes).” ECF No. 6 at 5. According to Plaintiff, the bread and potatoes caused him “to
put on weight and become obese.” Id. Plaintiff opines that “square bread and potatoes”
caused him to become diabetic and raised his blood pressure. Id. Plaintiff states he “filed
several grievances in the kiosk to Sheriff Gary Long” complaining about this situation and
requested that he be given salads or transferred to a different facility, but defendant Long
“did neither.” Id. Plaintiff seeks $500,000 for pain and suffering as well as “mental
anguish.” Id. at 6.
III.

Plaintiff’s Claim
Conditions of confinement claim against Sheriff Gary Long
Plaintiff states he was a federal pretrial detainee during his incarceration in the Butts

County Detention Center. ECF No. 6 at 5. He also alleges that he was convicted of arson
in the Superior Court of Upson County in June 2014 and that his sentence for that
conviction will not be completed until February 2025. Id. at 1-2. Thus, it is not entirely
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clear if Plaintiff was a pretrial detainee, a state prisoner, or both at the time he was
incarcerated in the Butts County Detention Center. It does not matter, however, because
the Eighth Amendment standard for providing basic human needs to convicted prisoners
is the same as the Fourteenth Amendment standard for pretrial detainees. Keith v. DeKalb
Cnty., 749 F.3d 1034, 1044 n.35 (11th Cir. 2014) (citations omitted). Thus, the case law
involving prison inmates applies equally to cases involving pretrial detainees. Id.
Prison officials must “provide humane conditions of confinement; . . . ensure that
inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (citations omitted). “Even so, ‘the Constitution does not mandate comfortable
prisons.’” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)). Only actions that deny prisoners or detainees “the
minimal civilized measure of life’s necessities” are grave enough to establish constitutional
violations under the Eighth or Fourteenth Amendments.

Rhodes, 452 U.S. at 347.

“Generally speaking, prison conditions rise to the level of an Eighth Amendment violation
only when they ‘involve the wanton and unnecessary infliction of pain.’” Chandler, 379
F.3d at 1289 (quoting Rhodes, 452 U.S. at 347).
Prison officials may be held liable under either the Eighth Amendment (convicted
prisoners) or the Fourteenth Amendment (pretrial detainees) for acting with “‘deliberate
indifference’” to an inmate’s health or safety when the official knows that the inmate faces
“a substantial risk of serious harm” and disregards that risk by failing to take reasonable
measures. Farmer, 511 U.S. at 828 (citations omitted). The deliberate indifference
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analysis has two steps. Chandler, 379 F.3d at 1289 (stating that “[t]he Supreme Court has
developed a two-part analysis to govern Eighth Amendment challenges to conditions of
confinement”).
“First, under the ‘objective component,’ a prisoner must [allege] that the condition
he complains of is sufficiently serious to violate the Eighth Amendment.” Id. (quoting
Hudson v. McMillian, 503 U.S. 1, 8 (1992)). This objective inquiry requires “‘a court to
assess whether society considers the risk that the prisoner complains of to be so grave that
it violates contemporary standards of decency to expose anyone unwillingly to such a
risk.’” Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)). In short, “[t]he
challenged condition must be ‘extreme.’” Id. (quoting Hudson, 503 U.S. at 9).
Second, the allegations “must show that the defendant . . . ‘acted with a sufficiently
culpable state of mind’ with regard to the condition at issue.” Id. (quoting Hudson, 503
U.S. at 8). This requires that the plaintiff’s allegations show the defendant acted with
“deliberate indifference.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 303 (1991)).

To

establish deliberate indifference, a plaintiff must plausibly allege that the defendant: (1)
“was subjectively aware that the inmate was at risk of serious harm”; (2) “disregarded that
risk”; and (3) “acted with ‘subjective recklessness as used in the criminal law.’” Wade v.
McDade, 106 F.4th 1251, 1255 (11th Cir. 2024) (citations omitted). Subjective awareness
requires that the defendant “‘must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.’” Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007)
(quoting Farmer, 511 U.S. at 837). To establish that a particular “defendant acted with
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‘subjective recklessness as used in the criminal law’” the plaintiff’s allegations must
establish “that the defendant was subjectively aware that his own conduct put the plaintiff
at substantial risk of serious harm.” Wade, 106 F.4th at 1255 (quoting Farmer, 511 U.S.
at 839). “Furthermore, the official may escape liability for known risks ‘if [he] responded
reasonably to the risk, even if the harm ultimately was not averted.’” Chandler, 379 F.3d
at 1290 (quoting Farmer, 511 U.S. at 844); Wade, 106 F.4th at 1255 (citations omitted)
(alteration in original) (stating that “in any event, a defendant who ‘respond[s] reasonably’
to a risk, even a known risk, ‘cannot be found liable’ under the Eighth Amendment”)
In this case, Plaintiff’s allegations do not satisfy the first component of the deliberate
indifference analysis. He has not alleged that Sheriff Long “fail[ed] to provide . . .
reasonably adequate food.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir. 1985)
(finding that the jail’s food, which occasionally contained foreign objects; was served cold;
and “failed to meet Georgia Department of Human Resources Food Preparation
Standards,” did not violate the Fourteenth Amendment). The fact that Plaintiff was served
bread and potatoes rather than salad does not violate the Fourteenth Amendment. “Neither
[the Eleventh Circuit] nor the Supreme Court have ever held that the Eighth Amendment
[or Fourteenth Amendment] requires prison officials to indulge inmates’ dietary
preferences. . . .” Robbins v. Robertson, 782 F. App’x 794, 805 (11th Cir. 2019) (citations
omitted). In short, being served a side of bread or potatoes instead of a salad does not
“‘involve the wanton and unnecessary infliction of pain.’” Chandler, 379 F.3d at 1289
(quoting Rhodes, 452 U.S. at 347).

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It is, therefore, RECOMMEDED that this action be DISMISSED without
prejudice for failure to state a claim upon which relief may be granted. 28 U.S.C. §
1915A(b)(1).
IV.

Plaintiff’s failure to disclose litigation history
As stated above, the PLRA requires the Court to review any prisoner’s complaint

seeking redress from governmental employees and “dismiss the complaint, or any portion
of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a defendant who is immune
from such relief.” See 28 U.S.C. § 1915A(a–b); see also 28 U.S.C. § 1915(e)(2)(B) (setting
the same standard for in forma pauperis litigants). Plaintiff’s action is subject to dismissal
not only for failure to state a claim upon which relief may be granted, as discussed above,
but also for Plaintiff’s malicious misrepresentation of his litigation history. See Sears v.
Haas, 509 F. App’x 935, 936 (11th Cir. 2013) (per curiam) (affirming dismissal without
prejudice of complaint where pro se plaintiff did not accurately disclose previous
litigation).
Plaintiff drafted his complaint on the standard § 1983 complaint form. Question
seven required Plaintiff to list any lawsuits (other than an appeal of his conviction or
sentence and habeas petitions) that he filed while incarcerated or detained. ECF No. 6 at
2. Plaintiff lists one lawsuit: Ball v. Kilgore, 5:24-cv-262-CAR-TQL (M.D. Ga. July 29,
2024). Id. Question eight required Plaintiff to list any lawsuit filed in any federal court in
which he was permitted to proceed in forma pauperis that was dismissed on the ground

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that it was frivolous, malicious, or failed to state a claim. Id. at 3. Plaintiff states that
“none have been dismissed as frivolous, malicious, or failed to state a claim.” Id.
This is not true, and Plaintiff knows this is not true. This Court recently reminded
Plaintiff of his litigation history and warned him that failure to disclose this history in future
actions would result in the dismissal of his complaints as malicious. In an October 25,
2024 Order, the Court informed Plaintiff that
[w]hile the Court must accept Plaintiff’s factual allegations in his statement
of claim as true, it notes that Plaintiff has made several misrepresentations
on the 42 U.S.C. § 1983 complaint form. . . . Question number six asks if,
other than appeals of his conviction or sentence and habeas petitions, if
Plaintiff has filed any other lawsuits while incarcerated or detained. ECF No.
6 at 2. Plaintiff checked, “No.” Id. This is not true. At the time Plaintiff filed
his recast complaint, Plaintiff had filed at least six other lawsuits (not
including Ball v. Eppinger, 5:24-cv-254-CAR-CHW already discussed
above). Ball v. Male Black Correctional Officer, 1:20-cv-4571-JPB (N.D.
Ga. Oct. 30, 2020); Ball v. Long, 5:22-cv-444-MTT-CHW (M.D. Ga. Dec.
20, 2022); Ball v. Allen, 5:23-cv-46-MTT-CHW (M.D. Ga. Feb. 6, 2023);
Ball v. Trammel, 5:23-cv-85-TES-CHW (M.D. Ga. March 3, 2023); Ball v.
Kilgore, 5:23-cv-98-MTT-CHW (M.D. Ga. March 17, 2023); and Ball v.
Miller, 5:23-cv-234-MTT-CHW (M.D. Ga. July 3, 2023). Finally, question
number eight asks if any lawsuit, in which Plaintiff was allowed to proceed
in forma pauperis, was dismissed on the grounds that it was frivolous,
malicious, or failed to state a claim. Plaintiff checked, “No.” This is not true.
Two of Plaintiff’s previous lawsuits were dismissed for failure to state a
claim. Ball v. Male Black Correctional Officer, 1:20-cv-4571-JPB, ECF No.
15 (N.D. Ga. Mar. 25, 2021) (order dismissing action for failure to state a
claim upon which relief may be granted); Ball v. Miller, 5:23-cv-234-MTTCHW, ECF No. 11 (M.D. Ga. Oct. 2, 2023) (order dismissing action for
failure to state a claim upon which relief may be granted). Additionally,
Plaintiff cannot credibly maintain that he was unaware any of his previous
lawsuits were dismissed for failure to state a claim. In the August 6, 2024
Order granting Plaintiff’s motion to proceed in forma pauperis and ordering
him to file a recast complaint, the Court informed Plaintiff that he had two
prior cases that were dismissed for failure to state a claim. ECF No. 5 at 1
n.1. Plaintiff currently has two cases in this Court in which he has been
ordered to file recast complaints. Ball v. Long, 5:24-cv-313-TES-CHW, ECF
No. 4 (M.D. Ga. Oct. 24, 2024) (order to recast informing Plaintiff that
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misrepresentation of his litigation history may result in dismissal of the
action); and Ball v. Allen, 5:24-cv-314-CAR-CHW, ECF No. 4 (M.D. Ga.
Oct. 23, 2024) (order to recast informing Plaintiff that misrepresentation of
litigation history may result in dismissal of the action). This footnote contains
Plaintiff’s litigation history. Thus, Plaintiff has no excuse for failing to fully
and truthfully provide information regarding his previously litigation in any
42 U.S.C. § 1983 complaints or recast complaints that he files in this Court
or any court. This Order puts Plaintiff on notice again that misrepresentation
of his litigation history may result in dismissal of his actions and/or other
appropriate sanctions.
ECF No. 8 at 7 n.1 in Ball v. Kilgore, 5:24-cv-262-CAR-TQL (M.D. Ga. Oct. 25, 2024).
Thus, when Plaintiff completed his November 5, 2024 recast complaint in this
action (ECF No. 6 at 6), he had been given his complete litigation history and warned that
failure to disclose this litigation history in the future would result in dismissal. Plus, as
stated above, the October 25, 2024 Order was not the first time the Court reminded Plaintiff
that at least two of his previous complaints had been dismissed for failure to state a claim.
In an August 6, 2024 Order, the Court informed Plaintiff that
[a] review of court records on the U.S. District Web PACER Docket Report
reveals that Plaintiff appears to have accrued two strikes for the purposes of
28 U.S.C. § 1915(g). Ball v. Miller, 5:23-cv-234-MTT-CHW (M.D. Ga. Oct.
2, 2023) (order dismissing action for failure to state a claim upon which relief
may be granted); Ball v. Male Black Correctional Officer, 1:20-cv-4571-JPB
(N.D. Ga. Mar. 5, 2021) (order dismissing action for failure to state a claim
upon which relief may be granted).
ECF No. 5 at 1 n.1 in Ball v. Kilgore, 5:4-cv-262-CAR-TQL (M.D. Ga. Aug. 6, 2024).
Taking these Orders into consideration, Plaintiff cannot credibly claim that he forgot his
litigation history or did not know at least two of his previous complaints had been dismissed
for failure to state a claim upon which relief may be granted.

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In addition to the previous warnings Plaintiff received from this Court, the standard
complaint form Plaintiff completed unambiguously requires disclosure of previous
litigation and warns 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.”
ECF No. 6 at 2. Thus, Plaintiff clearly had warning that he needed to disclose his complete
litigation history, and he failed to do so.
“Although pro se pleadings are held to a less stringent standard, a plaintiff’s pro se
status does not excuse mistakes regarding procedural rules.” Sears, 509 F. App’x at 936
(citing McNeil v. United States, 508 U.S. 106, 113 (1993)). A prisoner’s “failure to comply
with court rules requiring disclosures about [his] previous litigation constitutes an abuse of
the judicial process warranting dismissal” of the party’s pleading as malicious under the
screening provisions of 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). Id. (citations
omitted); Adams v. Todd, No. 23-10908, 2024 WL 4449453, at *5 (11th Cir. Oct. 9, 2024)
(per curiam) (stating that the court must find the prisoner’s failure to disclose his litigation
history is “malicious” for the action to be dismissed under 28 U.S.C. § 1915A); Redmon v.
Lake Cnty. Sheriff’s Off.¸ 414 F. App’x 221, 225 (11th Cir. 2011) (per curiam) (affirming
dismissal without prejudice due to plaintiff’s failure to disclose one prior lawsuit and
stating that dismissal is proper under 28 U.S.C. § 1915 where a “plaintiff engage[s] in bad
faith litigiousness or manipulative tactics”); Hood v. Tompkins, 197 F. App’x 818, 819
(11th Cir. 2006) (per curiam) (agreeing with district court’s conclusion that allowing

13

prisoner to “acknowledge what he should have disclosed earlier would serve to overlook
his abuse of the judicial process”).
“Malicious,” in the context of 28 U.S.C. § 1915A means “bad faith” or
“manipulative tactics.” Adams, 2024 WL 4449453, at *5 (quotation marks and citation
omitted). Given Plaintiff’s litigation history and the Court’s previous warnings, it is clear
that Plaintiff’s failure to disclose his litigation history was not a simple “misstep,” but an
intentional and fraudulent action that qualifies as malicious under 28 U.S.C. § 1915A(b)(1).
Id. (quotation marks and citations omitted). Plaintiff’s complaint is accordingly subject to
sua sponte dismissal without prejudice. See Sears, 509 F. App’x at 936.
It is, therefore, RECOMMENDED that Plaintiff’s complaint be dismissed without
prejudice as malicious due to his intentional failure to disclose his litigation history.
CONCLUSION
It is ORDERED that Plaintiff’s motions to proceed in forma pauperis (ECF No. 2;
ECF No. 7) are GRANTED. It is ORDERED that Plaintiff’s motion for appointment of
counsel (ECF No. 5) is DENIED. It is RECOMMENDED that Plaintiff’s action be
DISMISSED without prejudice for failure to state a claim upon which relief may be
granted and for malicious failure to disclose his litigation history.

28 U.S.C. §

1915A(b)(1).
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to these recommendations with the Honorable Tilman E. Self, III, United States District
Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Order
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and Recommendation of Dismissal. The parties may seek an extension of time in which
to file written objections, provided a request for an extension is filed prior to the deadline
for filing written objections. Objections to the Recommendation are limited in length to
twenty (20) pages. A party seeking permission to exceed these limitations shall do so by
filing a written motion no later than five (5) days in advance of the deadline for filing
objections and by specifying the number of pages requested.

Failure to object in

accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the
district judge’s order based on factual and legal conclusions to which no objection was
timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED, this 26th day of November, 2024.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge

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