# JACKSON v. SUMP

> District Court, N.D. Florida · August 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10765317

## Case

- **Court:** District Court, N.D. Florida
- **Decided:** August 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10765317

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765317. Public record. Not legal advice.