BROWN v. PUGH

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

TREVON DEJAH BROWN,

Plaintiff,

v. Case No. 3:24cv332-LC-HTC

SERGEANT PUGH, et al.,

Defendants.

_________________________/

REPORT AND RECOMMENDATION

Plaintiff Trevon Dejah Brown, a prisoner proceeding pro se and in forma

pauperis, has filed an amended civil rights complaint under 42 U.S.C. § 1983

alleging he was subjected to excessive force and inadequate medical treatment at

Santa Rosa Correctional Institution in January 2021. Doc. 7. After reviewing the

amended complaint, the undersigned concludes it should be dismissed without

prejudice as malicious under 28 U.S.C. § 1915(e)(2)(B)(i) due to Brown’s abuse of

the judicial process in failing to accurately disclose his litigation history.

I. Legal Standard

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

from government employees, 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

used by Brown, titled “Prior Litigation,” asks the following two questions: (1) “Have

you had any case in federal court … dismissed … prior to service?”; and (2) “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?” Doc. 7 at 18-19. Brown answered “no” to both questions and did

not identify any prior litigation as being responsive to the questions. At the end of

the amended complaint, Brown 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 21-22. Thus, Brown has in effect stated that at the time he filed the amended

complaint, he had not filed any cases in federal court which were dismissed before

service or which related to the conditions of his confinement.

As a matter of course, the Court attempts to make an independent

investigation into whether litigants truthfully complete the complaint forms. Upon

such an investigation, the undersigned takes judicial notice Brown previously filed

Brown v. Juistice et al., N.D. Fla. Case No. 3:21cv407-MCR-EMT,1 in which he

sued correctional officers at Holmes Correctional Institution. That case was

dismissed without prejudice before service due to Brown’s failure to comply with

court orders. Brown should have disclosed the existence of this case in response to

the questions on the complaint form but did not.2

Brown’s pro se status does not excuse him from conforming to acceptable

standards when interacting with the Court. If the Court cannot rely on the statements

or responses made by the parties, it threatens the quality of justice. The Court will

not tolerate false responses or statements in any pleading or motion filed before

it. Also, Brown 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 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. 7 at 17. Nonetheless, Brown made false representations in his amended

complaint. If Brown suffered no penalty for his untruthful responses, there would

1 The filings in Case No. 3:21cv407-MCR-EMT bear Brown’s Florida Department of Corrections

inmate number (X89326), which matches the inmate number included on Brown’s original

complaint in this case (Doc. 1).

2 Brown did not disclose his prior litigation history in either the original or amended complaint.

be little or no disincentive for his attempt to evade or undermine the purpose of the

form.

The Court should not allow Brown’s false responses to go unpunished. An

appropriate sanction for Brown’s failure to provide the Court with true factual

responses is to dismiss this case without prejudice.3 See 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, Doc. 52 (N.D. Fla. June 7, 2020).

3 Although Brown’s amended complaint describes events which allegedly occurred in January

2021, the statute of limitations applicable to Brown’s claims is four years, so dismissal here would

not effectively be with prejudice. See Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003)

(“Florida’s four-year statute of limitations applies to … claims of deprivation of rights under 42

U.S.C. §§ 1983 and 1985.”).

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 RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE as malicious

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

2. That the clerk close the file.

At Pensacola, Florida, this 27th 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.