Opinion
3:08cv309/LAC/MD.
September 12, 2008
REPORT AND RECOMMENDATION
Plaintiff initiated this action while incarcerated at the Escambia County Jail by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (Doc. 1 and 2). The court granted plaintiff leave to so proceed and assessed an initial partial filing fee, which has not been paid although the time for doing so has elapsed.
Plaintiff names Judge Johnson, Sheriff Ron McNesby, and the Director of the Escambia County Jail as defendants in this action. Plaintiff appears to contend that he pleaded nolo contendere to a petit theft charge and Judge Johnson sentenced him to an "illegal sentence" of 9 months imprisonment, which is more than the maximum 60 days allowed by law. He claims that he has been falsely imprisoned, and that the incarceration has resulted in mental cruelty because he has lost his apartment and the possessions he had therein. He asks that his sentence be corrected, and that if it is not corrected by August 1, that he receive monetary damages.
Because plaintiff is proceeding in forma pauperis, the court is required to dismiss the case at any time if it determines that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(B). In addition to plaintiff's failure to comply with the court's order with respect to the initial partial filing fee which is grounds for dismissal of this action, upon review of the complaint, it appears this case is also subject to dismissal for failure to state a claim and as malicious.
Plaintiff's claim regarding the alleged illegality of his sentence is not actionable under section 1983 since it is in the nature of habeas corpus. The Supreme Court stated in Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973), that "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." Regardless of the label plaintiff may place on the action, any challenge to the fact or duration of a prisoner's confinement is properly treated as a habeas corpus claim. Prather v. Norman, 901 F.2d 915, 918-19 n. 4 (11th Cir. 1990) (per curiam); McKinnis, 693 F.2d at 1057. Additionally, 28 U.S.C. § 2254(b) requires that before a federal court may consider a petition for writ of habeas corpus, a state prisoner must first present to the state courts for consideration each issue upon which the petitioner seeks review in federal court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).
Additionally, plaintiff has failed to provide complete and truthful information on the complaint form, which is grounds for dismissing this case as malicious. On page three of the civil rights complaint form, Section IV(A), Previous Lawsuits, is the following question: "Have you initiated other actions in state court dealing with the same or similar facts/issues involved in this action? Where there are parenthetical areas to mark either a "yes" or "no" answer to this question, plaintiff marked "no" (Complaint, p. 3). On the same page of the complaint form in Section IV(B), Previous Lawsuits, is the following question: "Have you initiated other actions in federal court dealing with the same or similar facts/issues involved in this action?" Where there are parenthetical areas to mark either a "yes" or "no" answer to this question, plaintiff marked "yes," noting that he had filed a case in 1984 but stopped keeping up with it upon his release.
On page four of the civil rights complaint form, Section IV(C), Previous Lawsuits, is the following question: "Have you initiated other actions (besides those listed in Questions (A) and (B)) 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)?" Where there are parenthetical areas to mark either a "yes" or "no" answer to this question, plaintiff marked "no" ( id., p. 4). On the same page of the complaint form, Section IV(D), Previous Lawsuits, is the following question: "Have you ever had any action in federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service?" Where there are parenthetical areas to mark either a "yes" or "no" answer to this question, plaintiff also marked "no." ( id.).
At the end of the civil rights complaint form, plaintiff signed his name after the following statement: "I declare under penalty of perjury that the foregoing statements of fact, including all continuation pages, are true and correct." ( Id., p. 7). Thus, plaintiff has in effect stated that other than the single case in 1984, he has initiated no other lawsuits in federal court that relate to the fact or manner of his imprisonment or the conditions of his imprisonment.
This court does attempt to make, as a matter of course, an independent investigation into whether or not litigants truthfully complete the civil rights complaint forms, especially when a lack of candor in informing the court of prior lawsuits may affect the court's jurisdiction. Further, in the light of 28 U.S.C. § 1915(g) , the court must necessarily investigate the prior filings of a prisoner to enforce the so-called "three strikes" provision. The time spent verifying the cases a plaintiff has filed but failed to identify, as well as the reasons for their dismissal can be considerable.
Section 1915(g) provides that if a prisoner has had three (3) prior actions dismissed as frivolous or malicious or for failing to state a claim, the prisoner may not bring an action in forma pauperis unless he is "under imm inent danger of serious physical injury." 28 U.S.C. § 1915(g).
"[T]he task of counting strikes involves more than sophomoric arithmetic. Courts must search records of the prisoner's prior federal cases to determine whether judicial officers `on 3 or more prior occasions' entered orders of dismissals and, if so, whether the reason for the dismissals were frivolousness, maliciousness or failure to state a claim upon which relief may be granted." Rivera v. Allin, 144 F.3d 719, 726 (11th Cir. 1998), citing 28 U.S.C.A. § 1915(g).
Upon review of the file, the Clerk has advised, and this Court may take judicial notice, that plaintiff has previously filed the following cases in the Pensacola Division:
Blevins v. Escambia County Jail 3:03cv149/LAC
Blevins v. Williams 3:03cv454/RV
He has also filed one case in the Panama City Division of this court:
Blevins v. Martin 5:95cv50204
A cursory review reveals that plaintiff's previously filed cases dealt with matters concerning plaintiff's imprisonment.
The court has the authority to control and manage matters such as this pending before it, and plaintiff's pro se status does not excuse him from conforming to acceptable standards in approaching the court. If the court cannot rely on the statements or responses made by the parties, it threatens the quality of justice. The court will not tolerate false responses or statements in any pleading or motion filed before it. Here, plaintiff falsely responded to a question on the complaint form, as detailed above. Plaintiff knew, from reading the complaint form, that disclosure of all prior actions was required and that dismissal of this action may result from his untruthful answers. If plaintiff suffered no penalty for his untruthful responses, there would be little or no disincentive for his attempt to evade or undermine the purpose of the form. Therefore, this court should not allow plaintiff's false responses to go unpunished. The undersigned recommends that an appropriate sanction for plaintiff's abuse of the judicial process in not providing the court with true factual statements or responses is to dismiss this cause without prejudice. Plaintiff should also be warned that such false responses, filed herein or filed in the future, will not be ignored and may result in more severe and long-term sanctions. See, e.g., United States v. Roberts, 308 F.3d 1147 (11th Cir. 2002) (inmate convicted of perjury for false statement made on pleading filed in federal court).
Accordingly, it is respectfully RECOMMENDED:
That this cause be dismissed without prejudice as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for plaintiff's abuse of the judicial process, or in the alternative for failure to state a claim pursuant to § 1915(e)(2)(B)(ii).
Dismissal of this action does not relieve plaintiff of the obligation to pay the full filing fee in this case. Thus, the court's Order Granting Leave to Proceed In forma pauperis in which the agency having custody of the plaintiff was instructed to forward monthly payments from plaintiff's prison account towards the balance due of the filing fee, remains in effect.