JACKSON v. SUMP

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

COREY A. JACKSON,

Plaintiff,

v. Case No. 3:23cv24678-MCR-HTC

JOSHUA P. SUMP,

Defendant.

____________________________/

ORDER and

REPORT AND RECOMMENDATION

Plaintiff Corey A. Jackson, a prisoner proceeding pro se and in forma

pauperis, filed a second amended civil rights complaint under 42 U.S.C. § 1983

alleging Defendant Joshua P. Sump violated the Eighth Amendment by using

excessive force. Doc. 21. Sump has moved to dismiss Jackson’s second amended

complaint, arguing, among other things, that Jackson failed to accurately disclose

his litigation history.1 Doc. 39. Jackson responded in opposition by filing a “Motion

to Supplemental.”2 Doc. 43. After reviewing the parties’ submissions, the

1 Sump also argues Jackson failed to state a claim for excessive force, he is protected by the

doctrine of qualified immunity, and Jackson is barred from recovering punitive damages by 18

U.S.C. § 3626. Doc. 39. Because the undersigned finds this case should be dismissed due to

Jackson’s failure to accurately disclose his litigation history, these other arguments will not be

addressed.

2 Despite filing a response to the motion to dismiss, Jackson also filed a motion for extension of

time to respond to the motion. Doc. 44. Because Jackson addressed his failure to disclose in the

undersigned concludes Sump’s motion should be granted and this case should be

dismissed without prejudice as malicious under 28 U.S.C. § 1915(e)(2)(B)(i) due to

Jackson’s abuse of the judicial process in failing to accurately disclose his litigation

history.

I. Legal Standard

Because Jackson is a prisoner proceeding in forma pauperis and seeking relief

from a government employee, the Court must dismiss his complaint, or any portion

thereof, if it determines it is frivolous or malicious, fails to state a claim on which

relief may be granted, or seeks monetary relief against a defendant who is immune

from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

II. Failure to Accurately Disclose Litigation History

Section VIII of the Northern District of Florida’s civil rights complaint form,

titled “Prior Litigation,” asks the following question, “Have you filed any other

lawsuit, habeas corpus petition, or appeal in state or federal court either challenging

your conviction or relating to the conditions of your confinement?”3 Jackson

answered “yes” to this question and identified four state court cases as being

response, the undersigned presumes Jackson wants an extension to respond to the qualified

immunity, failure to state a claim, and punitive damages arguments. However, since the

undersigned is recommending dismissal for failure to disclose, Jackson does not need to respond

to the other arguments. Thus, the motion for extension of time shall be DENIED.

3 While Jackson did not use the official civil rights complaint form, he submitted a handwritten

second amended complaint that copied the instructions and questions from Section VIII verbatim.

Doc. 21 at 13-16.

responsive to the question. Doc. 21 at 15-16. At the end of the second amended

complaint, Jackson signed his name after the following statement: “I declare, under

penalty of perjury, that all of the information stated above and included on or with

this form, including my litigation history, is true and correct.” Id. at 16. Thus,

Jackson has in effect stated that at the time he filed the second amended complaint,

he had not filed any cases in federal court challenging his conviction.

Based on Defendant Sump’s motion to dismiss, and upon the Court’s own

independent investigation, the undersigned takes judicial notice Jackson filed a

habeas corpus petition in the Middle District of Florida on January 4, 2024, before

filing his second amended complaint in this case on February 27, 2024.4 See Jackson

v. Sec’y, Fla. Dep’t of Corr., M.D. Fla. Case No. 6:24cv48-PGB-DCI. Jackson

should have disclosed the existence of this habeas case in his second amended

complaint but did not. Indeed, the question in the second amended complaint

specifically asked Jackson to disclose habeas corpus petitions like the one he filed

in the Middle District.5 Also, Jackson knew from reading the complaint form that

disclosure of all prior cases was required. The complaint form expressly warns

prisoners: “[F]ailure to disclose all prior state and federal cases – including, but not

4 This case and the habeas case bear Jackson’s Florida Department of Corrections inmate number

(D53149), which confirms he filed both.

5 In addition, Jackson wrote the 6:24cv48-PGB-DCI case number on a motion to proceed in forma

pauperis he submitted on February 1, 2024, in the Middle District case, so he clearly knew the

Middle District case number when he filed the second amended complaint in this case on February

27.

limited to civil cases, habeas cases, and appeals – may result in the dismissal of this

case. You should err on the side of caution if you are uncertain whether a case should

be identified.” Doc. 21 at 13.

Jackson’s response to Sump’s motion does not dispute that he failed to

disclose the existence of the pending habeas corpus petition. Instead, Jackson claims

he accurately disclosed his litigation history in his original complaint, but he

inadvertently failed to disclose the habeas case in the second amended complaint

because he paid law clerks to amend his complaint and they only amended the body

of the complaint. Doc. 43 at 1-2.

However, this excuse does not justify Jackson’s failure to identify the habeas

case in the second amended complaint. Jackson signed the certification which

declared, under penalty of perjury, “that all of the information stated above and

included on or with this form, including my litigation history is true and correct.”

Doc. 21 at 16–17. Thus, he was personally responsible for ensuring the information

in the second amended complaint regarding his litigation history was accurate. And

courts within this circuit have rejected inmates’ attempts to blame their failure to

accurately disclose their litigation history on other inmates. See Prenatt v. Dixon,

2023 WL 3687990, at *1 (N.D. Fla. May 26, 2023) (“The Court did not overlook

Plaintiff’s argument that he relied on an inmate law clerk to prepare the complaint

and that he ‘was assured by the law clerk that everything was done right.’ Even if

that is true, it does not excuse Plaintiff’s failure to completely disclose his litigation

history because the law clerk presumably had no independent knowledge of

Plaintiff’s litigation history and he relied on Plaintiff to provide that information.”);

Johnson v. Burch, 2019 WL 4596569, at *1 (N.D. Fla. Sept. 23, 2019) (“The fact

that Plaintiff apparently received bad legal advice from someone in the prison law

library about the form does not excuse his failure to comply with the disclosure

requirements on the form or undermine the disposition recommended by the

magistrate judge.”); Lucas v. Georgia, 2012 WL 6813820, at *4 (M.D. Ga. Dec. 5,

2012), report and recommendation adopted, 2013 WL 103135 (M.D. Ga. Jan. 8,

2013) (“Neither the Plaintiff’s alleged lack of storage space in the prison

environment nor the fact that he was aided by a fellow prisoner in filing certain of

the lawsuits provides an adequate explanation for Plaintiff’s misrepresentations to

the Court.”).

Jackson’s response to Sump’s motion to dismiss also attempts to cure his

failure to disclose by providing the required information about the pending habeas

case. Doc. 43 at 2. But allowing an inmate to cure a failure to disclose by

supplementing or amending a complaint would allow his misrepresentations to go

unpunished. See Walker v. Davenport, 2017 WL 559578, at *1 (N.D. Fla. Feb. 10,

2017) (“If the Court allowed Plaintiff to cure the defect by simply amending the

Complaint, Plaintiff would face no punishment for his failure to disclose. . . .The

only adequate sanction is dismissal without prejudice.”); 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 Hood to then acknowledge what he should have disclosed earlier would

serve to overlook his abuse of the judicial process.”).

Based on the foregoing, the Court should not allow Jackson’s false response

to go unpunished. An appropriate sanction for Jackson’s failure to provide the Court

with accurate information is to dismiss this case without prejudice. See Redmon v.

Lake Cnty. Sheriff’s Office, 414 Fed. Appx. 221, 226-26 (11th Cir. 2011) (affirming

dismissal of plaintiff’s amended complaint for misrepresenting his litigation history

when he failed to disclose a case he filed in another district after the initial complaint

but before the amended complaint); Bratton v. Sec’y DOC, 2012 WL 2913171, at *1

(M.D. Fla. July 16, 2012) (dismissing case without prejudice when prisoner failed

to disclose one prior federal case that was dismissed pursuant to 28 U.S.C. §

1915(e)(2)); Johnson v. Crawson, No. 5:08cv300-RS-EMT, 2010 WL 1380247, at

*2 (N.D. Fla. Mar. 3, 2010) (same); see also Strickland v. United States, 739 F.

App’x 587, 588 (11th Cir. 2018) (“A sanction less than dismissal would signal that

a failure to disclose filings is an infraction without consequence.”). As one district

judge from this District stated in an order of dismissal for failure to disclose, “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.” Rodriguez v. Inch, Case

No. 4:19cv191-RH-HTC, ECF Doc. 52 (N.D. Fla. June 7, 2020).

Indeed, “[a] plaintiff’s affirmative misrepresentation regarding his prior

litigation history, when the complaint form required disclosure of such history and

the plaintiff’s statements were made under penalty of perjury, constitutes abuse of

the judicial process warranting dismissal of the case without prejudice as ‘malicious’

under § 1915(e)(2)(B)(i) and § 1915A(b)(1).” Ealy v. CCA, 2015 WL 9647546, at

*1 (N.D. Fla. Dec. 18, 2015) (collecting Eleventh Circuit cases affirming dismissals

without prejudice where plaintiffs failed to disclose their prior litigation history).

Accordingly, it is ORDERED:

1. Jackson’s motion for extension of time, Doc. 44, is DENIED.

And it is RECOMMENDED:

1. That Sump’s motion to dismiss, Doc. 39, be GRANTED.

2. That this case be DISMISSED WITHOUT PREJUDICE as malicious

under 28 U.S.C. § 1915(e)(2)(B)(i) for Jackson’s abuse of the judicial process.

3. That the clerk close the file.

At Pensacola, Florida, this 6th day of August, 2024.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within

fourteen (14) 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 its objections upon

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 the unobjected-to factual and

legal conclusions.  See 11th Cir. Rule 3-1.