Opinion
Case No. 3:17cv496/RV/EMT
10-17-2017
DARREL DAISE, Inmate No. P23481, Plaintiff, v. JOSEPH PURSELL and JONATHAN ROGERS, Defendants.
REPORT AND RECOMMENDATION
This cause is before the court on Plaintiff's civil rights complaint filed pursuant to 42 U.S.C. § 1983, and received by the court on July 26, 2017 (ECF No. 1). Leave to proceed in forma pauperis has been granted (ECF No. 5).
Because Plaintiff is proceeding in forma pauperis, the court must review the complaint and dismiss it if satisfied 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. § 1915(e)(2)(B). Having conducted a thorough review, the court is satisfied that this action is malicious and thus recommends dismissal under section 1915(e)(2)(B)(i).
Section IV of the complaint form requires Plaintiff to disclose information regarding prior civil cases he may have filed in state and federal court (ECF No. 1 at 5-6). In Question A of Section IV, which requests information regarding any previous cases Plaintiff might have filed in state court that deal with the same or similar facts or issues as in the instant action, Plaintiff answered "no" to the question (id. at 5). In Question B of Section IV, which requests information regarding any previous cases Plaintiff might have filed in federal court that deal with the same or similar facts or issues as those in the instant action, Plaintiff answered "no" to that question as well (id). Thus, Plaintiff in effect stated that he has never initiated an action in state or federal court that involve the same or similar facts and circumstances as the instant case.
At the end of the civil rights complaint form, Plaintiff signed his name after the following statement on the form: "I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING STATEMENTS OF FACT, INCLUDING ALL CONTINUATION PAGES, ARE TRUE AND CORRECT" (ECF No. 1 at 9) (emphasis and capitalization in original).
Upon review of the docket, the clerk of court has advised, and this court takes judicial notice, that as of the date Plaintiff filed his complaint, he had previously filed Daise v. Pursell, identified as Case No. 3:17-cv-309-MCR/EMT in this district court. This previous action was initially filed in the Escambia County Circuit Court as Filing No. 54292205 on March 28, 2017, and was removed to this court by Defendants on May 2, 2017 (see ECF No. 1 in Case No. 3:17-cv-309-MCR/EMT). Plaintiff, who was represented by counsel in this earlier case, filed a notice of voluntary dismissal on May 3, 2017 (see ECF No. 4 in Case No. 3:17-cv-309-MCR/EMT).
This previous case was also a civil rights cause of action involving the same parties as in the instant action, and it involves essentially the same claims and alleged facts as in the previous action. Plaintiff did not identify this case in any of the sections of the complaint form identified above despite the fact that it was responsive to Question A, given that it was a case filed in state court, or would have been an acceptable response to Question B, given the case's subsequent removal to federal court.
Both cases involve an incident occurring on February 17, 2016, in which Plaintiff was involved in a motor vehicle accident, and Defendants, both officers of the Escambia County Sheriff's Office who arrived on the scene, allegedly used excessive force upon him, kicking him while he was on the ground.
As routinely recognized by this court, the information from Section IV of the form is useful to the court in many ways:
. . . it allows efficient consideration of whether the prisoner is entitled to pursue the current action under the "three strikes" provision of the Prison Litigation Reform Act; it allows consideration of whether the action is related to, or otherwise should be considered in conjunction with or by the same judge who presided over, another action; it allowsSpires v. Taylor, Order of Dismissal, Case No. 3:00cv249-RH (N.D. Fla. Oct. 27, 2000). Further, because prisoner plaintiffs generally proceed pro se, the information helps the court determine their litigation experience and familiarity with the legal terrain of the current action. This is especially notable in this case because of the virtual sameness of the two actions. The time spent verifying the cases a plaintiff has filed but failed to identify, as well as the dispositions of those cases, can be considerable.
consideration of whether any ruling in the other action affects the prisoner's current case. All of these things are appropriately considered in connection with the preliminary review of such a complaint under the Prison Litigation Reform Act.
The court has 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, the quality of justice is threatened. The court will not tolerate false responses or statements in any pleading or motion filed before it. Here, Plaintiff falsely responded to questions on the complaint form, as detailed above. Plaintiff knew, or from reading the complaint form should have known, that disclosure of his 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. Furthermore, if word spread around the prisons that the questions on the complaint form could be circumvented in such a manner, the court might be confronted with widespread abuse from its many prisoner litigants. Therefore, this court should not allow Plaintiff's false responses to go unpunished.
Indeed, section IV of the complaint form includes the following notice: "FAILURE TO DISCLOSE ALL PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL." (see ECF No. 1 at 5) (emphasis and capitalization in original).
The court 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. See, e.g., Hanson v. McCaul, No. 4:09cv126-SPM/WCS, 2009 WL 3010481, at **1-2 (N.D. Fla. Sept. 16, 2009) (dismissing case without prejudice for prisoner plaintiff's failure to disclose two federal cases (both of which were previously dismissed for failure to comply with court orders) on complaint form which required prisoner litigants to list all other cases that plaintiff had previously initiated in state and federal court); Thomas v. Ammons, No. CV409-139, 2009 WL 5174109, at **1-3 (S.D. Ga. Dec. 23, 2009) (dismissing case without prejudice for prisoner plaintiff's failure to disclose four federal cases (two of which were previously dismissed for failure to comply with court orders and the other two of which were previously voluntarily dismissed by plaintiff) on complaint form which demanded litigation information regarding "any lawsuits brought in federal court . . ."). 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 Warren v. Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994) (per curiam) (pro se, in forma pauperis prisoner's misrepresentation about previous lawsuits may violate Rule 11).
Dismissal without prejudice is not too severe a sanction under these circumstances. Plaintiff is free to re-file if he so chooses. See Order of Dismissal, Spires, No. 3:00cv249-RH (N.D. Fla. Oct. 27, 2000). --------
Accordingly, it respectfully RECOMMENDED:
That this cause be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as malicious and that Plaintiff be assessed a "strike" under 28 U.S.C. § 1915(e).
At Pensacola, Florida, this 17th day of October 2017.
/s/ Elizabeth M . Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only , and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party 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; 28 U.S.C. § 636.