Owens v. Morales et al

Filing 20

ORDER directing the plaintiff to submit a statement within 21 days. Signed by Magistrate Judge G. R. Smith on 8/13/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JACKIE DEWAYNE OWENS,

)

)

Plaintiff,

)

)

V.

)

Case No. CV414-273

)

JOSE MORALES, et al.,

)

)

Defendants.

)

ORDER
Coastal State Prison ("CSP") inmate Jackie Dewayne Owens filed
this 42 U.S.C. § 1983, prison-conditions complaint arising from: (a) his
medical treatment (prison officials' failure to timely furnish him with his
prescribed leg brace and adequately treat his hepatitis-C infection); (b)
retaliation for using his prison's grievance process; and (c) his prison's
constructive denial of his access to the courts by failing to avail him free
copying and return-postage to enable court filings). Doc. 1. He seeks
damages and injunctive relief. Id. at 10.
Through two Orders (docs. 13 & 18) the Court has elicited from
Owens critical information needed to address his motion to proceed in
forma pauperis ("IFP"), and thus screen his case under 28 U.S.C. §

1915(g), if not § 1915(e)(2)(B)(ii). Owens had failed to use the Courtprovided § 1983 form Complaint,' and his "home-brewed" Complaint did
not reveal prior lawsuits. Doe. 1. So, the Court asked him and warned
him about the legal consequences of perjury before this Court. Doe. 13 at
3-4. It specifically asked him about what it had uncovered: Owens v.
Summers, CV497-247, doe. 7 (N.D. Ga. July 13, 1997) (Order denying to
certify appeal from "motion of bias" ruling as taken in good faith). Id. at
2.
In his response Owens disclosed two other lawsuits' but failed to

1

It is available here, http://www.gasd.uscourts.gov/pdf/prisonerl983.pdf and the
Court DIRECTS the Clerk to serve Georgia's Attorney General and Owens' prison
warden with a copy of this Order, since the forms are free to download, the State
obviously benefits from § 1915(g) enforcement, and there should be no excuse for
inmates to use "home-brewed" Complaints which "just so happen" to omit the form
Complaint's question about prior lawsuits.
2

One, he says, was in a Tennessee state court in 2013, doe. 14-1 at 1 (he supplies no
case name, number, or name of that court) and the other is still active. Owens v.
Carter, 5:13-CV-299-MTT-MSH, doe. 40 (M.D. Ga. Oct. 22, 2014) (Report and
Recommendation screening, under 28 U.S.C. § 1915A(a), recast prison conditions
complaint); id. at 14-15 (greenlighting "colorable Eighth Amendment constitutional
claims against" prison officials and directing service), adopted as modified, doe. 49
(M.D. Ga. Jan. 12, 2015), reconsideration denied, doe. 53 (M.D. Ga. Feb. 26, 2015).
Owens says, here, that it is his intention to have Owens v. Carter joined with this
case, doe. 19 at 2, but he files no formal Fed. R. Civ. P 42 consolidation motion, nor
would he succeed if he tried (the cases are before two different courts in two different
districts and reach claims involving no common question of law or fact).
2

admit or deny that he had filed the Owens v. Summers case. Doe. 14-1 at
1-2; doe. 15. That information was vital to the Court's determination
whether he is barred by § 1915(g)'s "three-strikes" provision of 28 U.S.C.
§ 1915(g). 3 So, the Court directed Owens to admit or deny that he is the
Owens who filed Owens v. Summers.

Doe. 18 at 2. Also, the Court had

located Owens v. Van Pelt, CV497-281, doe. 3 (N.D. Ga. Oct. 24, 1997)
("[D]ismissing ease for failure to obey a lawful order of the Court."), so it
instructed Owens to claim or deny that filing, too. Id. at 3.
In response, Owens finally admits that he in fact was the plaintiff
in Owens v. Summers: "It was filed in Catoosa County Superior Court in
1997-97. If [sic] it is mine and it was dismissed because my wife did not
All inmates must pay the $350 filing fee for each case that they file. 28 U.S.C. §
1914. The Prison Litigation Reform Act (PLRA), as codified in statutes like 28 U.S.C.
§ 1915, enables them to pay that on an installment plan. See 28 U.S.C. § 1915(b)(1).
But an inmate otherwise must pay that fee outright if he
has, on 3 or more occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g), "The purpose of this rule, and the PLRA generally, is to curtail
abusive prisoner litigation." Hines v. Thomas, 604 F. App'x 796, 801 n. 1 (11th Cir.
2015) (quotes and cite omitted). "Consequently, courts have a responsibility to
dismiss cases, even sua sponte, under 28 U.S.C. § 1915(g)." Anderson v. United
States, 2014 WL 2625194 at * 1 (M.D. Fla. June 12, 2014).
3

give me my mail. We were temporarily separated. )24 Doe. 19 at 1. And
he denies having anything to do with Owens v. Van Pelt. Doe. 19 at 1 ("I
Jackie D. Owens have never filed anything in the U.S. District Court
against Van Pelt and Owens Van Pelt is the plaintiff.").
Bearing in mind § 1915(g)'s three-strikes limit, the Court
disbelieves Owens about Owens v. Van Pelt.

Attached is that case's

docket sheet showing "Jackie D. Owens" as the plaintiff, then housed at
Rivers State Prison. The docket's entries are available online, but not
the entries' contents, but it shows that he filed a civil mandamus action
and it was dismissed for failing to comply with a court order. The next
attachment to this Order is Owens' Georgia Department of Corrections
record showing his Rivers State Prison incarceration during that period.
That's now two prior cases that the Court has had to unearth
despite plaintiff's failure to disclose them, and it's pretty obvious that he
is now simply choosing to lie about one of them. The district court in
Hines v. Thomas also uncovered, inter alia, prior case concealment, and
that figured into that court's ruling that the plaintiff had engaged in
Of course, why the case was dismissed is irrelevant. What is relevant is that Owens
filed a prior case and failed to disclose it here when directly asked about it.
4

"conduct that courts have deemed abusive, and for which, courts have
imposed the double sanction dismissing the action without prejudice and
counting the dismissal as a strike on the ground of being malicious." 604
F. App'x 796, 798 (11th Cir. 2015). The Hines appellate panel did not
disagree with that misconduct assessment but ruled that the district
court went too far. Id. at 800 (with prejudice dismissal of prisoner's case
was an abuse of discretion, lesser sanction to be considered on remand,
where inmate was "certainly negligent in failing to inform the court of
his litigation history, [but] his actions as a whole d[id] not present a clear
record of willful misconduct."). Even at that, a "without prejudice"
dismissal likely would not have been reversed. Id. ("Had the dismissal
truly been without prejudice to re-filing, the district court likely would
not have abused its discretion in dismissing the action.").
This Court does not hesitate to invoke dismissal and other
sanctions against cynically mendacious inmates who lie to or otherwise
deceive this Court. See, e.g., Ross v. Fogam, 2011 WL 2516221 at * 2
(S.D. Ga. June 23, 2011); Johnson v. Chisoim, 2011 WL 3319872 at * 1 n.
3 (S.D. Ga. Aug.1, 2011), cited in Brinson v. Townsend, 2015 WL
5

2378940 at * 2 n. 4 (S.D. Ga. May 15, 2015). As explained in Ross:
Rule 11(b) of the Federal Rules of Civil Procedure "forbids lying in
pleadings, motions, and other papers filed with the court." Zocaras
v. Castro, 465 F.3d 479, 484 (11th Cir. 2006). "Rule 11(c) provides
for sanctions concerning misrepresentations made in papers filed
with the court under Rule 11(b)." Id. at 490; see also 5A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1335 (3d ed. 2004) (noting that courts have deemed
sanctions appropriate to punish various forms of party
misconduct). Rule 41(b) "expressly authorizes the involuntary
dismissal of a claim for plaintiffs failure to abide by ... the Federal
Rules of Civil Procedure." Zocaras, 465 F.3d at 490; State Exch.
Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982).
In addition, "the power of a court to dismiss a claim is inherent in a
trial court's authority to enforce its orders and ensure prompt
disposition of legal actions." Zocaras, 465 F.3d at 490; Link v.
Wabash R.R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d
734 (1962); Hartline, 693 F.2d at 1352. The Eleventh Circuit
approves of dismissals under the inherent power where a litigant,
in bad faith, fails to disclose his prior cases on a form complaint.
Young v. Sec'y Fla. Dep't of Corr., 380 F. App'x 939, 940 (11th Cir.
2010) (affirming dismissal under inherent power for plaintiffs
failure to disclose his prior cases on the court's complaint form); see
Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (noting that the
district court did not abuse its discretion by dismissing an action
without prejudice where plaintiff "had lied under penalty of perjury
about the existence of a prior lawsuit"), abrogated on other grounds
by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798
(2007).

Ross, 2011 WL 2516221 at * 2.
In contrast to Hines, the facts show that plaintiffs concealment
AN

conduct here is not negligent but willful. Within 21 days Owens (who
is free to dismiss this case without incurring a strike or filing fee
obligation) shall complete the attached "Show Cause Statement" and
declare, under penalty of perjury, all facts he cites to show why this
case should not be dismissed without prejudice (and fetch a § 1915(g)
strike) for misleading, if not deliberately lying to, this Court. He must
return it by placing it within his prison's mail system by the twentyfirst day after the day this Order is served.
SO ORDERED, this /day of August, 2015.

UNITED S'YATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JACKIE DEWAYNE OWENS,
Plaintiff,

Case No. CV414-273

V.
)

JOSE MORALES, et al.,

)
)

Defendants.

JACKIE DEWAYNE OWENS' STATEMENT

[1

Any required additional pages shall be attached and will be subject to this Declaration:

Pursuant to 28 U.S.C. § 1746, I declare, under penalty of perjury, that the
foregoing is true and correct and that this was placed in my prison's
mailing system on , 2015.

Jackie Dewayne Owens

CM/ECF-GA Northern District Court

https://ecf.gand.uscourts.gov/cgi-binlDktRpt.pl?867883 83838671 6-L...

CLOSED

U.S. District Court
Northern District of Georgia (Rome)
CIVIL DOCKET FOR CASE #: 4:97-cv-00281-HLM

Owens v. Van Pelt
Assigned to: Judge Harold L. Murphy
Demand: $0
Cause: 28:1361 Petition for Writ of Mandamus

Date Filed: 08/22/1997
Date Terminated: 10/24/1997
Jury Demand: None
Nature of Suit: 540 Mandamus & Other
Jurisdiction: Federal Question

Plaintiff
represented by Jackie D. Owens
#366117
Rivers State Prison
P.O. Box 1500
Hardwick, GA 31034-1500
PRO SE

Jackie D. Owens

V.
Defendant
Superior Court Judge Ralph Van Pelt,
Jr.

Date Filed

# Docket Text

08/22/1997

1 COMPLAINT FOR MANDAMUS RELIEF (in) (Entered: 08/28/1997)

08/28/1997
09/22/1997

10/02/1997

File forwarded to staff law clerk: JMF (In) (Entered: 08/28/1997)
2 ORDER by Mag Judge Joel M. Feldman, plaintiff must execute and return within 33
days, an affidavit and authorization allowing custodian to withdraw funds from
inmate account; failure to follow order may result in dismissal; , [2-1] order to be
submitted on 10/28/97 (c w/form) (In) (Entered: 09/22/1997)
Order of 9/22/97 mailed to plaintiff returned with notation U Released". Contacted
Inmate Info was advised pla released 8/21/97. (in) (Entered: 10/02/1997)

10/02/1997

1 of

SUBMITTED to Mag Judge Joel M. Feldman on [2-1] order plaintiff must execute
and return within 33 days, an affidavit and authorization allowing custodian to
withdraw funds from inmate account; failure to follow order may result in
dismissal;, [2-2] order (c w/form), [2-3] order, [0-0] remark (In) (Entered:
10/02/1997)

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https://ecf.gand.uscourts.gov/cgi-binlDktRpt.pl?867883 83838671 6-L...

CMIECF-GA Northern District Court

10/24/1997
10/24/1997

3 ORDER by Judge Harold L. Murphy, dismissing case for failure to obey a lawful
order of the Court (cc) (dd) (Entered: 10/24/1997)
Case terminated. (dd) (Entered: 10/24/1997)

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OWENS, JACKIE DEWAYNE
GDC ID: 0000898135

Sorry, this offender's photo is not available
PHYSICAL DESCRIPTION

YOB:
RACE:
GENDER:
HEIGHT:
WEIGHT:
EYE COLOR:
HAIR COLOR:

1956
WHITE
MALE
0'OO"
000
BROWN
BROWN

SCARS, MARKS, TATTOOS

INCARCERATION DETAILS

MAJOR OFFENSE:
MOST RECENT INSTITUTION:
MAX POSSIBLE RELEASE
DATE:
Paroles website.

ENTERING VEHICLE
RIVERS STATE PRISON
06/28/2001 Important Release Information
For parole information please go to Georgia State Board of Pardons and

ACTUAL RELEASE DATE:
CURRENT STATUS:

08/21/1997
INACTIVE

KNOWN ALIASES

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OWENS,JACKIE DEWAYNE

STATE OF GEORGIA - CURRENT SENTENCES

CASE NO: 366117
OFFENSE:
CONVICTION COUNTY:
CRIME COMMIT DATE:
SENTENCE LENGTH:
CASE NO: 366117
OFFENSE:
CONVICTION COUNTY:
CRIME COMMIT DATE:
SENTENCE LENGTH:
CASE NO: 366117
OFFENSE:
CONVICTION COUNTY:
CRIME COMMIT DATE:
SENTENCE LENGTH:

impersonating another
CATOOSA COUNTY
06/29/1996
0 YEARS, 12 MONTHS, 0 DAYS
other misdemeanor
CATOOSA COUNTY
06/29/1996
0 YEARS, 12 MONTHS, 0 DAYS
ENTERING VEHICLE
CATOOSA COUNTY
06/29/1996
5 YEARS, 0 MONTHS, 0 DAYS

STATE OF GEORGIA - PRIOR SENTENCES
STATE OF GEORGIA - INCARCERATION HISTORY

INCARCERATION BEGIN INCARCERATION END
08/21/1997
10/24/1996
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