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Campbell v. Johnson-Dovey

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-05-2243-MCE-CMK-P (E.D. Cal. Feb. 6, 2006)

Opinion

No. CIV S-05-2243-MCE-CMK-P.

February 6, 2006


FINDINGS AND RECOMMENDATIONS


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On November 10, 2005, the court ordered plaintiff to show cause why this action should not be dismissed as a sanction pursuant to Federal Rule of Civil Procedure 11 for failure to truthfully declare the number of lawsuits that he had filed prior to filing the instant action. Plaintiff was directed to describe the outcome of each previous lawsuit.

On December 6, 2005, plaintiff filed a response to the order to show cause. Plaintiff states that he was not untruthful. Rather, he states that he suffers from mental illness, is on medication, and is undergoing psychiatric treatment. He says this disability is the reason why he stated on his in forma pauperis application that he had filed only one prior suit. He now states that he filed 45 prior suits and that all of them are still pending.

The court is not convinced that plaintiff's statements concerning the number of prior lawsuits were inadvertent or the result of confusion. First, there is a difference between affirmatively asserting, as plaintiff did on his in forma pauperis application, that he had filed one prior lawsuit, and stating, as he does now, that he cannot remember the number of prior lawsuits due to mental confusion. Second, the court takes judicial notice of plaintiff's responses to similar orders to show cause issued in two other actions currently pending before this court. In particular, in his response filed on November 10, 2005, in case no. CIV S-05-0294-DFL-CMK-P, plaintiff states that he has filed 69 suits in the Eastern District of California and that 39 of them are still pending. In his response filed on December 15, 2005, in case no. CIV S-05-0503-MCE-CMK-P, plaintiff states that he has filed 30 prior suits and that all of them are still pending.

Given this record, it is clear that plaintiff has violated Rule 11 by being untruthful in one or more of the responses he has given to the court. The sanction of dismissal is, therefore, appropriate. See Fed.R.Civ.P. 11(c)(1)(B).

Based on the foregoing, the undersigned recommends that this action be dismissed with prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


Summaries of

Campbell v. Johnson-Dovey

United States District Court, E.D. California
Feb 6, 2006
No. CIV S-05-2243-MCE-CMK-P (E.D. Cal. Feb. 6, 2006)
Case details for

Campbell v. Johnson-Dovey

Case Details

Full title:TONY CAMPBELL, Plaintiff, v. L. JOHNSON-DOVEY, Defendant

Court:United States District Court, E.D. California

Date published: Feb 6, 2006

Citations

No. CIV S-05-2243-MCE-CMK-P (E.D. Cal. Feb. 6, 2006)