“[T]he district court was correct to conclude that to allow [the plaintiff] to then acknowledge what he should have disclosed earlier would serve to overlook his abuse of the judicial process.”
How later courts described this case
- “[T]he district court was correct to conclude that to allow [the plaintiff] to then acknowledge what he should have disclosed earlier would serve to overlook his abuse of the judicial process.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ANDRE L. SHEFFIELD,
Plaintiff,
v. Case No. 5:23cv238-TKW-MJF
MICHAEL BROWN, et al.,
Defendants.
_______________________/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 12) and Plaintiff’s “Motion to Reconsider Magistrate
Judge’s Erroneous Prejudice Report and Recommendation” (Doc. 13). Plaintiff’s
motion will be treated as an objection under Fed. R. Civ. P. 72(b)(2).
The Court reviewed the issues raised in the objection de novo as required by
28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(3), and based on that review the
Court agrees with the magistrate judge’s determination that this case should be
dismissed as malicious based on Plaintiff’s failure to fully disclose his litigation
history. See Burrell v. Moore, 857 F. App’x 624, 625 (11th Cir. 2021) (“An action
is malicious when a prisoner misrepresents his prior litigation history on a complaint
form requiring disclosure of such history and signs the complaint under penalty of
perjury....”). None of the arguments in Plaintiff’s objection undermine that
conclusion.
First, with respect to Plaintiff’s argument that the magistrate judge is “peace
mealing” him by “dismiss[ing] for this on this occasion, that on the next, etc., etc.”
because the magistrate judge did not mention the two First District Court of Appeal
(1st DCA) cases that he failed to disclose in the amended complaint in this case when
he dismissed Plaintiff’s prior case, a review of the complaint in the prior case shows
that Plaintiff disclosed the 1st DCA cases in that complaint. See Sheffield v. Brown,
Case No. 4:22cv409, ECF Doc. 1 at 18. Thus, there was no reason for the magistrate
judge to mention the 1st DCA cases in the dismissal order in the prior case. The fact
that Plaintiff previously disclosed the 1st DCA cases he omitted from the amended
complaint in this case does not help Plaintiff because this is a separate case and the
amended complaint must be evaluated based on what is disclosed (or not) in it, not
what was disclosed (or not) in the original complaint in this case or a complaint in a
prior case. See Johnson v. Burch, 2019 WL 4596569, at *1 (N.D. Fla. Sept. 23,
2019) (“[T]he fact that Plaintiff may have disclosed some of his litigation history in
his original complaint does not excuse his failure to do so in the amended complaint,
nor does it undermine the disposition recommend by the magistrate judge.”).
Second, with respect to Plaintiff’s argument that the magistrate judge is biased
against him based on his rulings in this and the prior cases, it is well established that
prior adverse rulings, without more, do not require disqualification of a judge. See
Liteky v. United States, 510 U.S. 540, 550-56 (1994); United States v. Berger, 375
F.3d 1223, 1227 (11th Cir. 2004). Here, aside from the prior adverse rulings,
Plaintiff offers nothing more than speculation to support his claim that the magistrate
judge is biased against him. Additionally, the fact that different district judges
dismissed Plaintiff’s prior cases after de novo review of his objections to the Reports
and Recommendations in those cases militates against a finding of bias based on the
magistrate judge’s prior rulings. See Sheffield v. Brown, 2023 WL 5401884 (N.D.
Fla. Aug. 22, 2023) (No. 5:23cv192) (Wetherell, J.); Sheffield v. Brown, 2023 WL
1781806 (N.D. Fla. Feb. 6, 2023) (No. 4:22cv409) (Winsor, J.).
Third, with respect to Plaintiff’s argument that he does not have access to a
computer and that his disclosed his prior cases to the “best of [his] ability,” that does
not change the fact that his answer to the litigation history question on the civil rights
complaint form was untruthful.1 Moreover, even if (as Plaintiff claims) his legal
materials have been “misplaced,” there is no reason that he could not have obtained
a print-out of his prior cases from the Clerk of the 1st DCA and attached it to a
complaint before he filed suit like he did for his prior cases in the Middle District of
1 The Court did not overlook that Plaintiff included a statement in the amended complaint
that “[t]o the best of my knowledge, everything is correct in this complaint,” Doc. 11 at 31
(emphasis added), does not help Plaintiff because he separately attested “under penalty of perjury,
that all of the information stated above and included on or within this form, including my litigation
history, is true and correct” without any qualification, id. at 32.
Florida. See Runge v. DeSantis, 2023 WL 5532146, at *1 (N.D. Fla. Aug. 28, 2023)
(rejecting prisoner’s argument that his failure to disclose prior case should be
excused because his prison officials lost or destroyed his legal materials and
explaining that “if for whatever reason Plaintiff no longer has a list of his prior cases,
‘he can (and should) request [that information] from the appropriate clerks’ offices
before filing a new case.’” (quoting Bashir v. Meherg, 2022 WL 4471965, at *1
(N.D. Fla. Sept. 26, 2022)) (alteration in original)).
Finally, with respect to Plaintiff’s request that he be allowed file a second
amended complaint listing the cases that he omitted, “allowing Plaintiff to amend
his complaint at this point would amount to no penalty for his inexcusable failure to
disclose his litigation history and would not serve as a deterrent to Plaintiff and
others from falsely answering the questions on the civil rights complaint form.”
Merritt v. Dep’t of Corr., 2020 WL 6703794, at *1 (N.D. Fla. Nov. 13, 2020); see
also Hood v. Tompkins, 197 F. App'x 818, 819 (11th Cir. 2006) (“[T]he district court
was correct to conclude that to allow [the plaintiff] to then acknowledge what he
should have disclosed earlier would serve to overlook his abuse of the judicial
process.”).
Accordingly, it is ORDERED this:
1. The magistrate judge’s Report and Recommendation is adopted and
incorporated by reference in this Order.
Page 5 of 5
2. This case is DISMISSED without prejudice as malicious under 28
U.S.C. § 1915(e)(2)(B)@).
3. The Clerk shall enter judgment in accordance with this Order and close
the case file.
DONE and ORDERED this 29th day of December, 2023.
7. Wo
T.KENT WETHERELL,
UNITED STATES DISTRICT JUDGE