The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
RICARDO CONCEPCION-PADILLA,
Plaintiff,
v. Case No. 5:23-cv-336-TKW-MJF
LT. ARMSTRONG, et al.,
Defendants.
/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 41) and Plaintiff’s objections (Doc. 42). The Court
reviewed the issues raised in the objections 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 under
28 U.S.C. §1915(e)(2)(B)(i) as malicious and an abuse of the judicial process based
on Plaintiff’s failure to completely disclose his litigation history.1 See Burrell v.
Warden, 857 F. App’x 624, 625 (11th Cir. 2021) (“An action is malicious when a
1 The magistrate judge also recommended that Plaintiff’s motion to amend (Doc. 34)
should be granted so the amended complaint can be considered. Typically, a motion like this
would be denied, see, e.g., Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006); Merritt v.
Dep't of Corr., 2020 WL 6703794, at *1 (N.D. Fla. Nov. 13, 2020), but based on the procedural
posture of this case, the Court agrees that the motion should be granted. This renders Defendants
Armstrong and Morillo’s motion to dismiss the original complaint (Doc. 34) moot.
Page 1 of 3
prisoner misrepresents his prior litigation history on a complaint form requiring
disclosure of such history and signs the complaint under penalty of perjury . . . .”).
Plaintiff does not appear to contest the magistrate judge’s determination that
he did not fully disclose his litigation history by omitting a prior habeas case from
his response to the litigation history questions in the amended complaint.2 Indeed,
he states that he “concedes to the plain error and ask[s] the court for a dismissal
without prejudice so Plaintiff can refile the merits of the case.” Doc. 42 at 2.3 The
Report and Recommendation does not specifically state that it is recommending
dismissal without prejudice, but that is the effect of the dismissal because it is not
on the merits and the statute of limitations on Plaintiff’s claims does not appear to
have run.
2 Even if Plaintiff had contested this determination, it would not have changed the
disposition of this case because any argument that he was not required to disclose the prior habeas
case would have been frivolous. See Brown v. Foskey, 2024 WL 3497939, at *1 (N.D. Fla. July
22, 2024) (citing multiple cases in which this argument was rejected).
3 Despite this concession, Plaintiff spends the next 7 pages of his objections arguing that
dismissal is not the appropriate sanction for his failure to disclose the prior habeas case. That
argument is meritless for the reasons explained by the magistrate judge. See Doc. 41 at 10-11
(citing cases). Plaintiff also filed a copy of an April 2023 grievance about the loss of his legal
materials, see Doc. 43-1, but that does not excuse his failure to fully disclose his litigation history.
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)).
Page 2 of 3
Accordingly, it is ORDERED that:
1. The magistrate judge’s Report and Recommendation is adopted and
incorporated by reference in this Order.
2. Plaintiff's motion to amend (Doc. 34) is GRANTED, and the amended
complaint (Doc. 40) is treated as the operative complaint for purposes of screening
under 28 U.S.C. 81915A.
3. This case is DISMISSED without prejudice for maliciousness and
abuse of the judicial process under 28 U.S.C. § 1915(e)(2)(B)().
4. Defendants Armstrong and Morillo’s motion to dismiss (Doc. 31) is
DENIED as moot.
5. The Clerk shall enter judgment 1n accordance with this Order and close
the case file.
DONE AND ORDERED this 2nd day of December, 2024.
□□ Wood
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE
Page 3 of 3