Opinion
3:24cv319-MCR-HTC
07-23-2024
TRISTAN MICHAEL HYDE, Plaintiff, v. MICHAEL A. ADKINSON, JR, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE
Plaintiff Tristan Michael Hyde, proceeding pro se, initiated this action on July 11, 2023, by filing a civil rights complaint under 42 U.S.C. § 1983, Doc. 1, and a motion to proceed in forma pauperis, Doc. 2. Hyde, however, is a three striker under 28 U.S.C. § 1915(g), who has not shown he is in imminent danger of immediate physical injury, and, thus, cannot proceed in forma pauperis. Also, this case should be dismissed because (1) Hyde failed to pay the filing fee upon initiating this suit and (2) Hyde failed to truthfully disclose his litigation history.
Hyde is a pretrial detainee at the Walton County Jail who complains (1) the Sheriff violated the 14th Amendment and Florida Statutes by failing to protect his medical records from cybersecurity vulnerabilities which somehow caused Hyde to suffer bodily injury; (2) the Sheriff violated the cruel and unusual punishment clause of the Eighth Amendment by putting him in solitary confinement for exercising his first amendment rights to access the courts; and (3) a kitchen manager in the Jail imposed cruel and unusual punishment by making a derogatory comment about Hyde's mental health. Doc. 1 at 10-12.
I. THREE-STRIKER STATUS
Title 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act (“PLRA”) prohibits a prisoner from proceeding in forma pauperis under certain circumstances:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior 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.A prisoner who is barred from proceeding in forma pauperis must pay the filing fee at the time he initiates his lawsuit, and his failure to do so warrants dismissal of his case without prejudice. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that “the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)” because the prisoner “must pay the filing fee at the time he initiates the suit”) (emphasis omitted); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit). The only exception is if the prisoner alleges he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004).
Plaintiff is a three-striker, as he has, while in custody, brought two federal actions that were dismissed as malicious for failure to truthfully disclose his litigation history and one appeal that was dismissed as frivolous. Hyde v. Adkinson et al., 3:22-cv-04904-LC-HTC (N.D. Fla. Aug. 24, 2022) (“This case is DISMISSED WITHOUT PREJUDICE for failure to prosecute, failure to comply with a Court order, and failure to disclose”); Hyde v. Fla. Div. of Corps., 3:24-cv-00226-LC-HTC (N.D. Fla. June 13, 2024) (“This case is DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1) as malicious for abuse of the judicial process due to Plaintiff's failure to disclose his litigation history.”); Tristan Hyde v. Jeremie Vinklarek, 22-13344-B, (June 6, 2023) (appeal filed while he was in Holmes County Jail and dismissed as follows: "This Court now finds that the appeal is frivolous, DENIES leave to proceed, and DISMISSES the appeal.”).
“[A] dismissal for failing to disclose prior litigation history is deemed malicious and an abuse of the judicial process, which counts as a strike for purposes of 28 U.S.C. § 1915(g).” Ballard v. Rodgers, No. 1:23CV25/AW/ZCB, 2023 WL 2575846, at *2 (N.D. Fla. Feb. 15, 2023), report and recommendation adopted, 2023 WL 2574025 (N.D. Fla. Mar. 20, 2023) (citing Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (holding that prior dismissal for failure to disclose the existence of a prior lawsuit “is precisely the type of strike that Congress envisioned when drafting section 1915(g)”), reversed on other grounds by Jones v. Bock, 549 U.S. 199 (2007)).
Because Hyde has three strikes, he may not litigate this case in forma pauperis unless he demonstrates he is “under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). Hyde, however, does not meet this exception. As set forth above, he complains about failing to protect his medical records and being subject to derogatory comments. Neither of those allegations shows that he is in imminent danger of serious physical harm. He also complains about having been placed in solitary confinement, but that conduct, as the allegation regarding derogatory comments, occurred in the past. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (allegations of past harm found to be insufficient for purposes of the imminent danger exception to section 1915(g)).
Hyde's failure to pay the full filing fee when he filed suit warrants dismissal. See Dupree, 284 F.3d at 1236.
II. FAILURE TO DISCLOSE
As an additional and independent basis for dismissal, Hyde failed to truthfully disclose his litigation history on the complaint form he submitted to the Court. In Question IV.C, he was asked if he had “initiated other actions . . . in either state or federal court that relate to the fact or manner of your incarceration (including habeas corpus petitions) or the conditions of your confinement (including civil rights complaints about any aspect of prison life, whether it be general circumstances or a particular episode and whether it involved excessive force or some other wrong)?” Doc. 1 at 3. Hyde failed to identify the following case which involved the conditions of confinement: Hyde v. The State of Alabama et al, 3:22-cv-00087-WHA-CSC (M.D. Ala. June 30, 2022).
In Question D, he was asked to identify “any actions in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service.” Doc. 1 at 4. He failed to identify the three strike cases discussed above. He also failed to identify a host of cases that were dismissed prior to service, including the following: Hyde v. Walton County, et al., 3:23-cv-02386-LC-HTC (N.D. Fla. Aug. 8, 2023); Hyde v. Webster, 3:23-cv-04570-LC-ZCB (N.D. Fla. Apr. 28, 2023).
Hyde signed the complaint directly below the declaration, “I declare under penalty of perjury that the foregoing statements of fact, including all continuation pages, are true and correct.” Doc. 1 at 14. Hyde's failure to disclose his prior cases is a malicious abuse of the judicial process which warrants dismissal. See, e.g., Ealy v. CCA, 2015 WL 9647546, at *1 (N.D. Fla. Dec. 18, 2015) (collecting Eleventh Circuit cases affirming dismissals without prejudice where plaintiffs failed to disclose their prior litigation history). As recently stated in an order of dismissal for failure to disclose by one of this District's judges, “[i]f the requirement for prisoner plaintiffs to disclose their prior lawsuits is to serve its purpose, a plaintiff must provide accurate information. If word got around the prisons that inaccurate or incomplete information could be provided with no effective sanction, the form would serve little purpose.” Rodriguez v. Inch, et al., No. 4:19cv191-RH-HTC, ECF Doc. 52 at 1-2 (N.D. Fla. June 7, 2020).
Accordingly, it is ORDERED:
1. Plaintiff's motion to proceed in forma pauperis, ECF Doc. 2, is DENIED.
And it is RECOMMENDED:
1. That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(g), as well as for being malicious based upon Plaintiff's failure to truthfully disclose his litigation history.
2. That the clerk close the file.
At Pensacola,
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1.