Opinion
3:24cv378/MCR/ZCB
09-17-2024
MICHAEL M. MCGHEE, FDOC Inmate #X60075, Plaintiff, v. CENTURY CORRECTIONAL INSTITUTION, et al., Defendants.
REPORT AND RECOMMENDATION
Zachary C. Bolitho United States Magistrate Judge
Plaintiff Michael M. McGhee is an inmate of the Florida Department of Corrections. He is proceeding pro se in this civil rights action under 42 U.S.C. § 1983. (Doc. 8). After screening Plaintiff's amended complaint (Id.), the Court recommends that this case be dismissed without prejudice as malicious under 28 U.S.C. § 1915A(b)(1) because of Plaintiff's abuse of the judicial process.
The prisoner civil rights complaint form requires a prisoner to disclose his prior litigation history. The form must be signed under penalty of perjury. The Eleventh Circuit has made clear that a prisoner's case may be dismissed without prejudice for misrepresenting litigation history on the complaint form. See, e.g., Burrell v. Warden I, 857 Fed.Appx. 624, 625 (11th Cir. 2021) (affirming dismissal of prisoner's complaint where prisoner failed to identify two prior federal lawsuits).Dismissal is appropriate, even if the prisoner claims that a misunderstanding caused his failure to disclose litigation history. See Redmon v. Lake Cnty. Sheriff's Office, 414 Fed.Appx. 221, 226 (11th Cir. 2011) (affirming dismissal for failure to disclose litigation history and concluding that prisoner's failure was not excused by his claimed misunderstanding of the form).
A raft of Eleventh Circuit cases say the same thing. See, e.g., Rickerson v. Sec'y, Fla. Dep't of Corr., No. 21-12110-F, 2021 WL 6098415, at *1 (11th Cir. Nov. 2, 2021) (concluding dismissal of prisoner's complaint as malicious was warranted where plaintiff disclosed six state actions and two federal actions but failed to disclose additional state actions that related to his incarceration or conditions of confinement); Sears v. Haas, 509 Fed.Appx. 935, 935-36 (11th Cir. 2013) (affirming dismissal of prisoner's complaint as malicious for abuse of judicial process where prisoner failed to disclose previously filed cases); Jackson v. Fla. Dep't of Corr., 491 Fed.Appx. 129, 132-33 (11th Cir. 2012) (same); Shelton v. Rohrs, 406 Fed.Appx. 340, 340-41 (11th Cir. 2010) (same); Hood v. Tompkins, 197 Fed.Appx. 818, 819 (11th Cir. 2006) (same).
Here, Section VIII of the complaint form required Plaintiff to disclose information regarding prior cases he had filed in state and federal court. (Doc. 8 at 18-22). Question C of Section VIII asked Plaintiff if he had filed any other lawsuits, habeas corpus petitions, or appeals in state or federal court challenging his conviction or relating to the conditions of his confinement (Id. at 20). Plaintiff disclosed three state cases in response to Question C. (Id. at 21). At the end of the complaint form, Plaintiff signed his name after the following certification: “I declare, under penalty of perjury, that all of the information stated above . . . including my litigation history, is true and correct.” (Id. at 22-23).
Plaintiff, therefore, certified that at the time he filed his amended complaint on September 10, 2024 (Id. at 23), he had not filed any nonlisted lawsuit, habeas corpus petition, or appeal in state or federal court challenging his conviction or relating to the conditions of his confinement.The Court has screened Plaintiff's complaint under 28 U.S.C. § 1915A(b) to determine whether it is subject to dismissal for any of the grounds listed in that provision, including maliciousness. Upon researching Plaintiff's litigation history, the Court has discovered that Plaintiff failed to accurately disclose his litigation history on the complaint form. According to Public Access to Court Electronic Records (PACER), Plaintiff commenced the following undisclosed actions prior to filing his complaint in this case:
The “filed” date is the date Plaintiff certified that he delivered the complaint to jail officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988) (a pro se prisoner's document is deemed filed on the date the prisoner delivered it to prison authorities for forwarding to the court).
• McGhee v. Sec'y, Dep't of Corr., et al., Case No. 6:19cv1794/ORL/18/EJK (M.D. Fla.) (petition signed September 10, 2019; filed on the docket September 16, 2019).
• McGhee v. Sec'y, Dep't of Corr., et al., Case No. 6:19cv1795/ORL/18/EJK (M.D. Fla.) (petition signedSeptember 10, 2019; filed on the docket September 16, 2019).
How does the Court know that this Michael M. McGhee and the Michael M. McGhee that commenced the above cases are the same? The petitioner in the cases above listed FDOC Inmate #X60075 on his initial pleadings. Plaintiff lists the same inmate number on his amended complaint in this case. (Doc. 8 at 1).
In McGhee v. Sec'y, Dep't of Corr., et al. (6:19cv1794), Plaintiff's habeas petition challenged his conviction on several grounds including the Fourth, Fifth, Sixth, Eighth, Fourteenth, and Sixteenth Amendments, and ineffective assistance of counsel. (6:19cv1794, Doc. 11 at 20). This case was dismissed by the U.S. District Court for the Middle District of Florida on December 3, 2019.
In McGhee v. Sec'y, Dep't of Corr., et al. (6:19cv1795), Plaintiff's habeas petition challenged his conviction on several grounds including due process, double jeopardy, and the Fourth, Fifth, Eighth, Fourteenth, and Sixteenth Amendments. (6:19cv1795, Doc. 1-1 at 25). This case was dismissed by the U.S. District Court for the Middle District of Florida on October 29, 2019.
The cases cited above were clearly habeas corpus petitions “challenging [Plaintiff's] conviction” that Plaintiff filed before filing his amended complaint. As such, Plaintiff was required to identify them on the complaint form in this case. Yet he did not.
The prior litigation portion of the complaint form serves important purposes. First, it permits efficient consideration of whether the prisoner is entitled to pursue the current action under the Prison Litigation Reform Act's “three strikes” provision. Second, it allows the Court to determine whether an action is related to, or otherwise should be considered in conjunction with, another lawsuit. Third, it enables the Court to determine whether any issues raised in the current action have been previously decided by another judge. These purposes are thwarted, and the efficiency of the judicial system diminished, when a prisoner misstates his litigation history on the complaint form.
Plaintiff's pro se status does not excuse him from following the rules, including the requirement that litigants be truthful with the Court. See Kendrick v. Sec'y, Fla. Dep't of Corr., No. 21-12686, 2022 WL 2388425, at *3 (11th Cir. July 1, 2022) (stating that pro se litigants “owe the same duty of candor to the court as imposed on any other litigant”). The Court is concerned that if misrepresentations on the complaint form are not met with consequences, then word will spread throughout the prisons that the complaint forms need not be truthfully completed. See Rodriguez v. Inch, No. 4:19cv191/RH/HTC (Doc. 52) (N.D. Fla. June 7, 2020) (“If 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.”).
As detailed above, Plaintiff misrepresented-under penalty of perjury-his prior litigation history on the complaint form. He did so, despite having been advised on the complaint form that “failure to disclose all prior state and federal cases . . . may result in the dismissal of this case.” (Doc. 8 at 18). Consistent with that warning and the Eleventh Circuit precedent previously cited, it is recommended that Plaintiff's complaint be dismissed without prejudice.
Providing Plaintiff an opportunity to amend his complaint to disclose the previous lawsuit would be an inadequate sanction for his conduct. See Young v. Sec'y for Dep't of Corr., 380 Fed.Appx. 939, 940-41 (11th Cir. 2010) (holding that district court did not abuse its discretion by not providing a prisoner with an opportunity to amend his complaint to disclose lawsuits that should have been disclosed initially).
Accordingly, it is respectfully RECOMMENDED that:
1. This case be DISMISSED without prejudice as a malicious abuse of the judicial process under 28 U.S.C. § 1915A(b)(1).
2. That all pending motions be DENIED as moot.
3. That the Clerk of Court be directed to enter judgment accordingly and close this case.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen 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 the objections on 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 unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.