Harmon v. Internal Affairs Division for Charlotte County Sheriff's Office

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DAVID LEE HARMON,

Plaintiff,

v. Case No.: 2:20-cv-179-FtM-38NPM

INTERNAL AFFAIRS DIVISION FOR

CHARLOTTE COUNTY SHERIFF’S

OFFICE,

Defendant.

/

OPINION AND ORDER1

Plaintiff, an inmate in the Charlotte County Jail, instituted this action by filing a pro

se Civil Rights Complaint under 42 U.S.C. § 1983 of the Court’s approved form on March

23, 2020. (Doc. 1). Plaintiff seeks to proceed in forma pauperis on his Complaint. (Doc.

2). Because the Court finds the Complaint subject to dismissal without prejudice for

abuse of the judicial process and under 28 U.S.C. § 1915A, the Court will not grant

Plaintiff in forma pauperis status nor assess the $350.00 filing fee under 28 U.S.C. §

1915(b)(1).

A. Dismissal Without Prejudice for Abuse of the Judicial Process

Plaintiff executed the civil rights complaint form under penalty of perjury (Doc. 1 at

7). Section III of the form requires prisoners to disclose information regarding previous

lawsuits (Doc. 1 at 1-2). Specifically, it asks whether Plaintiff has “initiated other lawsuits

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in federal court dealing with the same or similar facts involved in this action or otherwise

relating to your imprisonment or conditions thereof ?” (Id. at ¶ B.). In response to the

question Plaintiff checked “no.” (Id.). Plaintiff then answered “N/A” in response to the

questions asking Plaintiff to identify any additional lawsuits. (Id. at ¶ B 1-7).

The Court takes judicial notice that before commencing this action, Plaintiff has

filed these cases in the Middle District of Florida: 2:20-cv-79-FtM-SPC-NPM, filed

February 18, 2020; 2:20-cv-154-FtM-TPB-MRM, filed March 5, 2020; 2:20-cv-155-FtM-

JES-MRM, filed March 5, 2020, and 2:20-cv-165-FtM-JES_MRM, filed March 11, 2020.

Contrary to Plaintiff’s sworn responses, he had filed another lawsuit in federal court

related to “imprisonment or conditions thereof”.

The inquiry concerning a prisoner’s prior lawsuits is not a matter of idle curiosity—

nor is it an effort to raise meaningless obstacles to a prisoner’s access to the courts.

Rather, the existence of prior litigation initiated by a prisoner is required for the Court to

apply 28 U.S.C. § 1915(g) (the “three strikes rule” applicable to prisoners proceeding in

forma pauperis). And it has been the Court’s experience that a significant number of

prisoner filings raise claims or issues already raised in prior litigation. Identification of that

prior litigation frequently enables the Court to dispose of the successive case without

further expenditure of finite judicial resources.

Plaintiff’s failure to disclose and truthfully describe previous lawsuits required on

the Court’s prisoner civil rights complaint form warrants dismissal for abuse of the judicial

process. See Redmon v. Lake County Sheriff’s Office, 414 F. App’x 221, 225 (11th Cir.

Feb. 10, 2011). In Redmon, the Eleventh Circuit affirmed the dismissal of a prisoner’s

civil rights complaint that did not disclose a previous lawsuit. The Court determined that

dismissal was an appropriate sanction:

Under 28 U.S.C. § 1915, “[a] finding that the plaintiff engaged

in bad faith litigiousness or manipulative tactics warrants

dismissal.” Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir.

1997). In addition, a district court may impose sanctions if a

party knowingly files a pleading that contains false

contentions. Fed. R. Civ. P. 11(c). Although pro se pleadings

are held to a less stringent standard than pleadings drafted by

attorneys, a plaintiff's pro se status will not excuse mistakes

regarding procedural rules. McNeil v. United States, 508 U.S.

106, 113, 113 S. Ct. 1980, 1984, 124 L.Ed.2d 21 (1993).

Id. Failing to exercise candor in completing the form, while acknowledging that the

answers are made under penalty of perjury, impedes the Court in managing its caseload

and merits the sanction of dismissal.

The complaint form asks whether Plaintiff had filed other lawsuits “relating to your

imprisonment or conditions thereof.” (Doc. 1 at 2). The Court finds Plaintiff's denial and

failure to disclose his previous lawsuits, under penalty of perjury, constitutes an abuse of

the judicial process. See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998). An

appropriate sanction for such abuse of the judicial process is the dismissal without

prejudice. Id.

B. Dismissal Without Prejudice Under 28 U.S.C. § 1915A

Plaintiff’s status as a prisoner seeking to proceed in forma pauperis mandates the

Court to conduct a frivolity screening to determine whether the Complaint “is frivolous,

malicious, or fails to state a claim upon which relief may be granted; or, alternatively

“seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §

1915A(a)-(b)(requiring court to review “before docketing, if feasible” a prisoner complaint

and identify cognizable claims or dismiss the complaint); see also 28 U.S.C. §

1915(e)(2)(permitting court to dismiss a case at any time notwithstanding that any filing

fee has been paid). The phrase “fails to state a claim upon which relief may be granted”

has the same meaning as the nearly identical phrase in Federal Rule of Civil Procedure

12(b)(6). See Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001)(per

curiam). While a complaint need not provide detailed factual allegations, there “must be

enough to raise a right to relief above the speculative level,” and the complaint must

contain enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555–56 (2007). In making the above determinations, all factual

allegations in the complaint must be liberally construed and accepted as true. Leib v.

Hillsborough Cty. Pub. Transp. Comm’n., 558 F.3d 1301, 1305 (11th Cir. 2009).

The Complaint names the “Internal Affairs Division” as the sole defendant. To the

extent discernable, Plaintiff claims that despite his unspecified grievances against

unidentified deputies, he has not been contacted by the Internal Affairs Division (“IAD”)

of the Charlotte County Sheriff’s Office. See generally Doc. 1 at 5-6.

At the outset, IAD is not a “person” for § 1983. See Dean v. Barber, 952 F.2d

1210, 1214 (11th Cir. 1995); see also Garcia v. Miami Beach Police Dep't Internal Affairs

Div., No. 07-23237-CIV, 2007 WL 9711469, at *2 (S.D. Fla. Dec. 28, 2007). Because the

IAD is not a person and is not sui juris, the Complaint fails to state a claim for relief.

Silberman v. Miami Dade Trust, 927 F.3d 1123, 1132 (11th Cir. 2019). Plaintiff’s

allegations related to his grievances having not been investigate does not raise

constitutional violations. See e.g. Bingham v. Thomas, 654 F. 3d 1171, 1177 (11th Cir.

2011)(no constitutional entitlement to grievance procedure). To the extent Plaintiff seeks

to have any deputies prosecuted for their alleged unspecified acts, under federal law,

Plaintiff as a private citizen “lacks a judicially cognizable interest in the prosecution or

nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

In certain circumstances, a pro se litigant must be given an opportunity to amend

his complaint. See Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (finding

“[b]ecause [plaintiff] filed his motion to amend before the district court dismissed his

complaint and before any responsive pleadings were filed, [plaintiff] had the right to

amend his complaint under Rule 15(a).”); see also Troville v. Venz, 303 F.3d 1256, 1260

(finding “no error” in district court’s sua sponte dismissal but because plaintiff requested

leave to amend before dismissal court should have granted leave); Bryant v. Dupree, 252

F.3d 1161, 1163-64 (11th Cir. 2001) (finding district court’s denial of motion to amend in

response to motion to dismiss improper). Plaintiff does not seek to amend his complaint

and the Court finds any amendments on the facts alleged would be futile. Bryant v.

Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Because the Court is dismissing this case

without prejudice, Plaintiff may file a new complaint if he believes he can state a viable

claim under 42 U.S.C. § 1983 stemming from these facts against a “person” subject to

suit. Plaintiff, however, must file it in a new action.

Accordingly, it is hereby ORDERED:

1. Plaintiff’s Civil Rights Complaint (Doc. 1) is DISMISSED without prejudice

for abuse of the judicial process and under 28 U.S.C. § 1915A(b)(1). Such dismissal

counts as a “strike” for the three-strikes provision of 28 U.S.C. § 1915(g).

2. The Clerk shall enter judgment, terminate any pending motions and close

this file.

3. The Clerk shall provide Plaintiff with a blank civil rights complaint, affidavit

of indigency form and prisoner consent form for Plaintiff's use should he wish to file a new

action.

DONE and ORDERED in Fort Myers, Florida this 2nd day of April 2020.

oie WOblotet ke 7

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record