Opinion

CONCEPCION-PADILLA v. ARMSTRONG

Court
District Court, N.D. Florida
Filed
Dec 2, 2024
Cited by
0 cases
Authority
More cited than 33.2%

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.

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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)).

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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

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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