HOLMES v. Williams, et al

Filing 25

REPORT AND RECOMMENDATIONS of the Magistrate Judge that Plaintiff's 1 Complaint as 21 Amended Complaint be DISMISSED without prejudice and this case CLOSED, and that any request for leave to appeal in forma pauperis be DENIED. Any party se eking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/25/2015). ORDER directing the Clerk to serve a copy of this Order and REPORT AND RECOMMENDATION of the Magistrate Judge upon Plaintiff. Signed by Magistrate Judge R. Stan Baker on 9/8/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

DERRICK PAUL HOLMES,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-12

v.
WARDEN STANLEY WILLIAMS; MR.
MOURAD; JAMES DEAL; MR. SMOKES;
MS. MARTIN; SARGENT CAS; EARL
TOPPINGS; RICHARD BUNCH; JOHNNY
DAVIS; ERIC YONG; CARLOS DELGADO;
OFFICER WEST; UNIT MANAGER
BLAND; OFFICER SANDERS; DR. COOK;
CERT TEAM WHITEFIELD; OFFICER
GEORGE; UNKNOWN CERT TEAM
MEMBERS; OFFICER JONES; UNKNOWN
SMITH STATE PRISON NURSES; TOOL;
TOUCHA; COCHA; BRIAN OWENS; and
NATHAN DEAL,
Defendants.

REPORT AND RECOMMENDATION
Presently before the Court is Plaintiff’s Response to the Court’s show cause Order dated
July 20, 2015. (Doc. 24.) In that Order, the Court instructed Plaintiff to show cause, within
thirty days, why this case should not be dismissed without prejudice for abuse of the judicial
process.

(Doc. 20.)

For the following reasons, the undersigned RECOMMENDS that

Plaintiff’s Complaint as amended (docs. 1, 21) be DISMISSED without prejudice and that this
case be CLOSED.

BACKGROUND
On January 13, 2015, Plaintiff, who is currently incarcerated at Calhoun State Prison in
Morgan, Georgia, filed this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) contesting
certain conditions of his confinement while housed at Smith State Prison in Glennville, Georgia.
(Doc. 1, pp. 2–3.) In doing so, Plaintiff used the standard complaint form for civil rights actions
filed under Section 1983. (Id. at p. 1.) Section I of the complaint form, titled “Previous
Lawsuits,” asks whether the claimant has “filed other lawsuits in federal court while incarcerated
in any institution.” (Id.) Plaintiff responded to this question by placing a check mark next to the
option reading, “No.” (Id.) The “Previous Lawsuits” section also inquires as to the details of
any previous lawsuit—including, for example, “Did the previous case involve the same facts?”
(Id. at pp. 1–2.)

However, Plaintiff left blank the spaces provided for responding to the

remaining questions in the “Previous Lawsuits” section. (Id.)
On May 29, 2015, Plaintiff moved for the Court’s permission to amend his Complaint so
as to add new Defendants and claims relating to the conditions of his confinement. (Doc. 15,
pp. 1, 4.)

The Court granted Plaintiff’s Motion (doc. 20), and Plaintiff’s Amendment to

Complaint was entered upon the docket of this case (doc. 21). Notably, Plaintiff’s Amendment
to Complaint does not mention or otherwise indicate that Plaintiff has had any prior lawsuits in
federal court during his incarceration. (Doc. 21.)
In the Order dated July 20, 2015, the Court undertook to review Plaintiff’s Complaint as
amended for compliance with the provisions of the Prison Litigation Reform Act, 28 U.S.C.
§§ 1915, 1915A (“Section 1915” and “Section 1915A”). (Doc. 20, pp. 1–5, 8–10.) Noting
Plaintiff’s cursory response in the “Previous Lawsuits” section, the Court stated that its case
management system reflects at least one lawsuit that Plaintiff has filed in this Court while

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incarcerated: Smith v. Williams, No. 6:13-cv-69-BAE-RSB (S.D. Ga. Mar. 5, 2015). (Id. at
p. 8.) The Court summarized the Smith action as follows:
In Smith, Plaintiff and another inmate jointly filed a Section 1983 complaint
against several Smith State Prison officials on July 9, 2013. While the complaint
largely contained allegations relating only to the other inmate, Plaintiff’s
subsequent filings in that case affirmed his intent to pursue the claims jointly. In
any event, because Plaintiff failed to pay the filing fee or otherwise move to
proceed in forma pauperis, Plaintiff was dismissed from the lawsuit.
(Id. (internal citations omitted) (citing Smith, No. 6:13-cv-69-BAE-RSB).) Citing Section 1915
and Federal Rule of Civil Procedure 11(c) (“Rule 11(c)”), the Court ordered Plaintiff to show
cause, within thirty days of the date of that Order, why his Complaint as amended should not be
dismissed for abuse of the judicial process for failing to disclose his prior litigation. (Id. at
pp. 8–11.)
The Court entered another Order on August 13, 2015, disposing of various motions for
injunctive relief filed by Plaintiff. (Doc. 23.) In that Order, the Court reminded Plaintiff of his
obligation to show cause why his claims should not be dismissed based on his failure to
truthfully disclose his litigation history. (Id. at p. 2.) The Court forewarned Plaintiff that
“[s]hould [he] fail to meet that obligation, the Court may dismiss this action.” (Id.)
On August 31, 2015, Plaintiff filed a Response to the show cause Order contending that
his Complaint as amended should not be dismissed, because he “did not intentionally,
knowingly, deliberately file a pleading that contained false contentions.”

(Doc. 24, p. 2.)

Plaintiff explains that in Smith, “another inmate included [him] in [the] complaint as a class
action yet Plaintiff chose not to engage in the complaint and chose not to pay any filing fees [or]
move[ ] to proceed in forma pauperis.” (Id.) Thus, Plaintiff maintains that “in [his] mind[,] [he]
thought that he was dismissed from the class action and thought that he was not a plaintiff in any
lawsuit or any complaint.” (Id.)

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DISCUSSION
The Court now resumes its initial review of Plaintiff’s Complaint as amended to consider
its compliance with Sections 1915 and 1915A of the Prison Litigation Reform Act, in light of
Plaintiff’s Response to the show cause Order. In addition, the Court addresses herein the issue of
in forma pauperis status on appeal.
I.

Plaintiff’s Complaint as Amended
In any civil action in which a prisoner seeks redress from a governmental entity or officer

or employee of a governmental entity, Section 1915A of the Prison Litigation Reform Act
requires a district court to screen the prisoner’s complaint for cognizable claims before, or as
soon as possible after, docketing. 28 U.S.C § 1915A(a). The court must dismiss a complaint, or
any portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is immune.

Id. § 1915A(b).

Similarly, Section 1915, which governs a prisoner’s payment of filing fees, states that a court
must dismiss a prisoner’s case if it determines, at any time, that any of the aforementioned
grounds for dismissal are present. Id. § 1915(e)(2)(B). In conducting an initial review, the Court
must ensure that the prisoner plaintiff has complied with the mandates of the Prison Litigation
Reform Act set forth in Sections 1915 and 1915A. See 28 U.S.C. §§ 1915, 1915A.
Notably, “[a] finding that the plaintiff engaged in bad faith litigiousness or manipulative
tactics warrants dismissal” under Section 1915. Redmon v. Lake Cty. Sheriff’s Office, 414 F.
App’x 221, 225 (11th Cir. 2011) (alteration in original) (quoting Attwood v. Singletary, 105 F.3d
610, 613 (11th Cir. 1997)). Additionally, Federal Rule of Civil Procedure 11(c) (“Rule 11(c)”)
permits a court to impose sanctions, including dismissal, for “knowingly fil[ing] a pleading that
contains false contentions.” Id. at 225–26 (citing Fed. R. Civ. P. 11(c)). While pro se pleadings

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are to be construed liberally, “a plaintiff’s pro se status will not excuse mistakes regarding
procedural rules.” Id. at 226 (emphasis omitted) (citing McNeil v. United States, 508 U.S. 106,
113 (1993)); see also McNeil, 508 U.S. at 113 (“We have never suggested that procedural rules
in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel.”).
The Court of Appeals for the Eleventh Circuit has consistently affirmed dismissals
pursuant to Section 1915 and Rule 11(c), where a pro se prisoner plaintiff has failed to disclose
his previous lawsuits as required on the face of the Section 1983 complaint form. See, e.g.,
Redmon, 414 F. App’x at 226 (pro se prisoner’s nondisclosure of prior litigation in Section 1983
complaint amounted to abuse of judicial process resulting in sanction of dismissal); Shelton v.
Rohrs, 406 F. App’x 340, 341 (11th Cir. 2010) (same); Young v. Sec’y Fla. for Dep’t of Corr.,
380 F. App’x 939, 941 (11th Cir. 2010) (same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th
Cir. 2006) (same). Significantly, even where the prisoner has later provided an explanation for
his lack of candor, the Court has generally rejected the proffered reason as unpersuasive. See,
e.g., Redmon, 414 F. App’x at 226 (“The district court did not abuse its discretion in concluding
that Plaintiff’s explanation for his failure to disclose the Colorado lawsuit—that he
misunderstood the form—did not excuse the misrepresentation and that dismissal was a proper
sanction.”); Shelton, 406 F. App’x at 341 (“Even if [the plaintiff] did not have access to his
materials, he would have known that he filed multiple previous lawsuits.”); Young, 380 F. App’x
at 941 (finding that not having documents concerning prior litigation and not being able to pay
for copies of same did not absolve prisoner plaintiff “of the requirement of disclosing, at a
minimum, all of the information that was known to him”); Hood, 197 F. App’x at 819 (“The
objections were considered, but the district court was correct to conclude that to allow [the

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plaintiff] to then acknowledge what he should have disclosed earlier would serve to overlook his
abuse of the judicial process.”).
Consistent with this authority, the Court should dismiss Plaintiff’s Complaint as amended
without prejudice for abuse of the judicial process, because it misrepresents his litigation history.
Indeed, Plaintiff concedes that he was named as a plaintiff in the Smith complaint when it was
filed in this Court on July 9, 2013, and Plaintiff does not dispute having had knowledge of that
fact both at that time and at the time of filing the instant action.

(See Doc. 24, p. 2.)

Nevertheless, Plaintiff maintains that he did not disclose his involvement in Smith when filing
this action, because he “chose not to engage in the complaint and chose not to pay any filing
fees” and, therefore, was dismissed from that case. (Id.) According to Plaintiff, he believed that
these events meant that he “was not a plaintiff in any lawsuit or any complaint.” (Id.)
Plaintiff’s asserted justification for his lack of candor must fail for several reasons. First,
while Plaintiff attempts to downplay his intent “to engage in the complaint” in Smith (see id.),
his active role as a coplaintiff in that case is unmistakable. The docket in that case reveals
several pleadings filed and signed by Plaintiff: (1) a letter informing the Court of his change of
address and requesting, in his words, “a copy of my recent petition/complaint”; (2) another letter
requesting a copy of the complaint; (3) a “Supplement to Amended Complaint” containing his
factual allegations and claims; (4) a “Motion for Appointment of Counsel”; (5) a “Notice” stating
that Plaintiff, as “a coplaintiff” in that case, was “trying to proceed in forma pauperis”; (6) a
“Motion for Leave to Proceed in Forma Pauperis”; and (7) a letter asking that his complaint be
returned after his dismissal for nonpayment of fees. Smith, No. 6:13-cv-69-BAE-RSB, ECF
Nos. 12–13, 20, 23–24, 27–28, 36. Thus, to the extent that Plaintiff now suggests that he never

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actually participated as a coplaintiff in Smith, or that his dismissal from that case was by choice,
Plaintiff’s contentions are controverted by the record in that case.
Second, Plaintiff’s asserted belief that his dismissal from Smith meant that he “was not a
plaintiff in any lawsuit or any complaint” is unreasonable. (See Doc. 24, p. 2.) The Court’s
dismissal Order in Smith stated that because Plaintiff “ha[d] neither paid a filing fee in th[e] case
nor sought permission to proceed in forma pauperis” at that time, “his claims [were] dismissed
without prejudice” and could be pursued “by filing a separate lawsuit and either paying the filing
fee or requesting leave to proceed in forma pauperis.” Smith, No. 6:13-cv-69-BAE-RSB, ECF
No. 5 (emphasis omitted). Thus, the plain language of the Order conveyed only that Plaintiff
would no longer be considered a coplaintiff in that case going forward, not that he was absolved
from his status as coplaintiff up until that point. Because nothing in the language of the Court’s
dismissal Order in Smith could reasonably be interpreted in the manner urged by Plaintiff,
Plaintiff’s mistaken belief does not excuse his nondisclosure. See Redmon, 414 F. App’x at 226
(finding that the prisoner plaintiff’s misunderstanding of fact did not excuse misrepresenting his
litigation history in his Section 1983 complaint).
Third, even proceeding under a mistaken belief that he no longer held the title of
“plaintiff” or “coplaintiff” in any lawsuit, Plaintiff’s obligation to disclose the Smith case should
nevertheless have been evident. The Section 1983 complaint form asks only whether Plaintiff
has “filed other lawsuits in federal court while incarcerated in any institution.” (See Doc. 1, p. 1
(emphasis added).) Notwithstanding Plaintiff’s beliefs concerning his status as a “plaintiff” or
“coplaintiff” in that case after dismissal, Plaintiff knew that he and another inmate had jointly
filed the Smith case in this Court during his incarceration—the exact type of activity for which
the Section 1983 complaint form requires disclosure. See Shelton, 406 F. App’x at 341 (“Even if

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[the plaintiff] did not have access to his materials, he would have known that he filed multiple
previous lawsuits.”).
Thus, Plaintiff fails to offer any persuasive reason for failing to disclose—and, in fact,
overtly misrepresenting—his litigation history in his Complaint as amended. In addition, the
Court has twice provided notice to Plaintiff that his misrepresentation, without adequate
justification, could result in a dismissal of this case. See Young, 380 F. App’x at 941 (plaintiff’s
opportunity to file response to magistrate judge’s report and recommendation giving notice of
possible dismissal satisfies due process); (see also Docs. 20, 23). Allowing Plaintiff to now
“acknowledge what he should have disclosed earlier would serve to overlook his abuse of the
judicial process.” Hood, 197 F. App’x at 819. Under these circumstances, a dismissal without
prejudice is warranted. See, e.g., Redmon, 414 F. App’x at 226; Shelton v. Rohrs, 406 F. App’x
at 341; Young, 380 F. App’x at 941; Hood, 197 F. App’x at 819; see also Shelton, 406 F. App’x
at 341 (“Moreover, the court dismissed without prejudice; [the plaintiff] may refile his complaint
with a correct response to the questions asked.”).

Accordingly, Plaintiff’s Section 1983

Complaint as amended (docs. 1, 21) should be DISMISSED without prejudice for abuse of the
judicial process, and this case should be CLOSED.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not
taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. §

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1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective
standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999).
Based on the above analysis, any appeal taken in this case would be indisputably based
on a pleading containing false contentions and manipulative tactics. Because there are no
nonfrivolous, good faith issues to raise on appeal, the Court should not grant Plaintiff in forma
pauperis status on appeal. Thus, any request for leave to appeal in forma pauperis should be
DENIED.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that Plaintiff’s Complaint as
amended (docs. 1, 21) be DISMISSED without prejudice and this case CLOSED, and that any
request for leave to appeal in forma pauperis be DENIED. The Clerk of Court is DIRECTED
to serve a copy of this Order and Report and Recommendation upon Plaintiff.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the undersigned failed to address any
contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions herein.

See 28 U.S.C. §

636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be served
upon all other parties to the action.

Upon receipt of objections meeting the specificity

requirement set out above, a United States District Judge will make a de novo determination of
those portions of the report, proposed findings, or recommendation to which objection is made
and may accept, reject, or modify, in whole or in part, the findings or recommendations made

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herein. Objections not meeting the specificity requirement set out above will not be considered
by a District Judge.
SO ORDERED and REPORTED and RECOMMENDED, this 8th day of September,
2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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