PALMER v. GREEN

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LESAMUEL PALMER,

Plaintiff,

v. Case No. 4:24-cv-358-WS/MJF

W. GREEN, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Upon review of Plaintiff’s complaint, the undersigned recommends

that this action be dismissed as malicious, under 28 U.S.C. § 1915A(b)(1),

for Plaintiff’s abuse of the judicial process in failing to disclose honestly

and completely his litigation history.

I. BACKGROUND

Plaintiff is a Florida prisoner housed at the Santa Rosa

Correctional Institution. His Florida Department of Corrections inmate

number is “L41847.” Doc. 1 at 2. Plaintiff claims that in 2023, four prison

officials at the Wakulla Correctional Institution violated the

Constitution, the Americans with Disabilities Act, and the Rehabilitation

Act when they failed to protect him from an assault by another inmate.

II. DISCUSSION

A. Screening Under the PLRA

The Prison Litigation Reform Act of 1995 (“PLRA”), Pub. L. No.

104–134, 110 Stat. 1321 (1996), was enacted in “an effort to stem the flood

of prisoner lawsuits in federal court.” Harris v. Garner, 216 F.3d 970, 972

(11th Cir. 2000) (en banc); see Procup v. Strickland, 792 F.2d 1069, 1071

(11th Cir. 1986) (per curiam) (“Recent years have witnessed an explosion

of prisoner litigation in the federal courts.”). Under the PLRA, a federal

court is required to screen a prisoner complaint to determine whether the

action is frivolous, malicious, or fails to state a claim on which relief may

be granted. 28 U.S.C. § 1915A.

Courts may “oblige prisoners to supply available information

concerning prior lawsuits that concern their incarceration.” In re Epps,

888 F.2d 964, 969 (2d Cir. 1989). “An action is malicious when a prisoner

misrepresents his prior litigation history on a complaint form requiring

disclosure of such history and signs the complaint under penalty of

perjury, as such a complaint is an abuse of the judicial process.” Burrell

v. Warden I, 857 F. App’x 624, 625 (11th Cir. 2021). This is true

“regardless of whether [the Plaintiff’s] response to the question was

knowing or intentional.” Ballard v. Broling, No. 22-12651, 2023 WL

6799147 at *1 (11th Cir. Oct. 16, 2023).

B. Plaintiff’s Disclosures

Section VIII of the complaint form completed by Plaintiff seeks

information regarding Plaintiff’s prior litigation. Doc. 1 at 11–15. The

complaint form asks three questions:

A. To the best of your knowledge, have you had any case

dismissed for a reason listed in § 1915(g) which counts as a

“strike”?1

B. Have you filed other lawsuits in either state or federal

court dealing with the same facts or issue involved in this

case?

C. Have you filed any other lawsuit in federal court either

challenging your conviction or otherwise relating to the

conditions of your confinement?

Id. at 11-12. Additionally, the complaint form instructs that if the

plaintiff responded, “yes” to any of these questions, then the plaintiff

must disclose all responsive cases. Id.

1 The introduction to Section VIII explains the “three strikes rule” of 28

U.S.C. § 1915(g), and defines a “strike” as follows: “an action or appeal in

a court of the United States that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may be

granted.” Doc. 1 at 10 (quoting 28 U.S.C. § 1915(g)).

In response to these Questions, Plaintiff responded, “Yes,” to

question C., but “No” to questions A. and B. Id. at 11–12. Plaintiff then

disclosed fifteen cases filed in the United States District Court for the

Middle District of Florida. Id. at 14–15.

At the end of the complaint, Plaintiff signed his name after the

following statement: “I declare under penalty of perjury that the

foregoing (including all continuation pages) is true and correct.” Id. at 13,

16. Thus, Plaintiff has in effect stated that at the time he filed this

lawsuit, he had not filed any other case in federal court that (1) was

dismissed as frivolous, as malicious, or for failure to state a claim, (2)

challenged his conviction, or (3) related to the conditions of his

confinement.

C. Plaintiff’s Omission

Pursuant to Federal Rule of Evidence 201, the undersigned takes

judicial notice that at the time Plaintiff filed his complaint in this case,

he had filed at least one prior case that required disclosure.2 Specifically,

2 By confining this discussion to one case, the undersigned does not imply

that this is the only case Plaintiff was required, but failed, to disclose.

The undersigned will not shoulder Plaintiff’s burden to determine all of

the cases he has filed. It is Plaintiff who has an obligation to determine

and disclose all of his prior cases.

on July 2, 2019, Plaintiff filed a lawsuit in the United States District

Court for the Northern District of Florida that related to the conditions

of his confinement at the Jefferson Correctional Institution. See Palmer

v. Brown, et al., No. 4:19-cv-306-RH-HTC, Compl., Doc. 1 (N.D. Fla. July

2, 2019). The case was dismissed on the ground that it was malicious. See

id., No. 4:19-cv-306-RH-HTC, R. & R., Doc. 3 (N.D. Fla. July 11, 2019),

accepted and adopted, Order of Dismissal, Doc. 4 (N.D. Fla. Aug. 14,

2019).

Plaintiff did not disclose the foregoing case in his complaint filed in

the present case. See Doc. 1.

The foregoing case falls squarely within the complaint form’s

disclosure requirements. It was a federal case that (1) related to the

conditions of Plaintiff’s confinement and (2) was dismissed as malicious.

Plaintiff’s failure to disclose Case No. 4:19-cv-306-RH-HTC violates his

duty of candor to this court. See Kendrick v. Sec’y, Fla. Dep’t of Corr., No.

21-12686, 2022 WL 2388425, at *3 (11th Cir. July 1, 2022) (noting that

pro se litigants “owe the same duty of candor to the court as imposed on

any other litigant”).

D. The Materiality of Plaintiff’s Omission

Courts have recognized that information regarding a plaintiff’s

litigation history is useful to federal courts:

[I]t allows efficient consideration of whether the prisoner is

entitled to pursue the current action under the “three strikes”

provision of the [PLRA]; it allows consideration of whether the

action is related to, or otherwise should be considered in

conjunction with or by the same judge who presided over,

another action; it allows consideration of whether any ruling

in the other action affects the prisoner’s current case. All of

these things are appropriately considered in connection with

the preliminary review of such a complaint under the [PLRA].

Spires v. Taylor, No. 3:00-cv-249-RH, Order of Dismissal, Doc. 10 (N.D.

Fla. Oct. 27, 2000). Also, this “information may assist a court in

identifying suits that are repetitious of prior or pending lawsuits and

hence frivolous.” In re Epps, 888 F.2d at 969; see Bilal v. Driver, 251 F.3d

1346, 1350 (11th Cir. 2001) (noting that, in assessing frivolousness,

courts may consider “a litigant’s history of bringing unmeritorious

litigation”). Additionally, because prisoner-plaintiffs generally proceed

pro se, information regarding a plaintiff’s litigation history assists

district courts in determining the plaintiff’s experience and familiarity

with the legal terrain.

“Federal courts have both the inherent power and the constitutional

obligation to protect their jurisdiction from conduct which impairs their

ability to carry out Article III functions.” Procup, 792 F.2d at 1073; In re

Martin-Trigona, 737 F.2d 1254, 1261–62 (2d Cir. 1984). Courts also have

“a responsibility to prevent single litigants from unnecessarily

encroaching on the judicial machinery needed by others.” Procup, 792

F.2d at 1074. Requiring prisoner-plaintiffs to divulge their record of

litigation serves all of these compelling interests. Thus, to conserve

judicial resources and effectively manage their dockets, courts may require

prisoner-plaintiffs to disclose their litigation history. See Smith v.

Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014) (noting that

district courts have “unquestionable authority to control their own

dockets[;] this authority includes ‘broad discretion in deciding how best to

manage the cases before them’”).

The time that district courts are required to expend to verify the

cases a plaintiff has filed but failed to identify can be considerable. This

is especially true in this case where a plaintiff has filed a substantial

number of cases. When courts cannot rely on the statements or responses

made by parties, the quality of justice is threatened. Courts, therefore,

cannot tolerate false or misleading responses in pleadings or motions.

Here, Plaintiff falsely responded to questions on the complaint form

as detailed above. Plaintiff knew from reading the complaint form that

he was required to disclose all prior cases filed in federal court that were

dismissed as malicious, or that related to the conditions of his

confinement. Doc. 1 at 10-12. He also was aware that the penalty for

failing to disclose his prior litigation history was dismissal. Id. at 13

(“Failure to disclose all prior cases may result in the dismissal of

this case.”).

There is no excuse for Plaintiff’s failure to respond truthfully to the

questions on the complaint form. The questions were straightforward and

easily understandable. See supra Part II.B. & n.1; see also Kendrick, 2022

WL 2388425, at *3 (noting that the questions on the court-form are not

complicated and a plaintiff’s pro se status was not an excuse for failing to

honestly answer the straightforward questions). Also, Plaintiff clearly

had access to his litigation history, as evidenced by the printout of fifteen

cases he filed in the Middle District of Florida. See Doc. 14-15.

A penalty is warranted both to deter Plaintiff from such conduct

and to deter others from similar misrepresentations and material

omissions. See Jones v. Warden of Statesville Corr. Ctr., 918 F. Supp.

1142, 1151 (N.D. Ill. 1995) (“The knowing failure of a pro se litigant to

admit to the filing of prior related complaints in answer to the questions

on the civil rights complaint form is conduct subject to sanctions by the

court.”).

E. The Appropriate Sanction is Dismissal Without Prejudice

“[F]ailure to comply with court rules requiring disclosures about a

plaintiff’s previous litigation constitutes an abuse of the judicial process

warranting dismissal.” Sears v. Haas, 509 F. App’x 935, 936 (11th Cir.

2013). Federal courts cannot let false responses go unpunished.

Dismissal without prejudice is an appropriate sanction for Plaintiff’s

abuse of the judicial process in not providing the District Court with true

statements or responses.3 See Rivera v. Allin, 144 F.3d 719, 731 (11th

Cir. 1998) (same), abrogated in part on other grounds by Jones v. Bock,

549 U.S. 199 (2007); see also, e.g., Reynolds v. Lowery, No. 18-10856-F,

3 Courts must consider whether a dismissal without prejudice would

effectively be with prejudice because of the statute of limitations.

Stephenson v. Warden 554 F. App’x 835, 838 (11th Cir. 2014). The statute

of limitations for claims under 42 U.S.C. § 1983 in Florida is four years.

City of Hialeah v. Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002) The

alleged misconduct on which Palmer bases his claims occurred in 2023,

so the statute of limitations likely would not bar Palmer from refiling this

action in the near future.

2018 WL 4206932, *1 (11th Cir. Aug. 8, 2018) (holding that “the district

court did not abuse its discretion in dismissing” the prisoner-plaintiff’s

“complaint as malicious, based on his failure to accurately disclose his

prior litigation history”); Schmidt v. Navarro, 576 F. App’x 897, 899 (11th

Cir. 2014) (same); Lebarr v. Fla. Dep’t of Corr., 2022 WL 2438357, at *1

(N.D. Fla. July 5, 2022) (citing multiple cases supporting this

proposition).

F. No Lesser Sanction Would Suffice

No lesser sanction would suffice to deter Plaintiff’s conduct. For

example, providing Plaintiff an opportunity to amend his complaint to

disclose the previous lawsuit would equate to overlooking his mendacity

and his abuse of the judicial process, because that course of action would

entail no penalty. See Young v. Sec’y for Dep’t of Corr., 380 F. App’x 939,

940–41 (11th Cir. 2010) (holding that district court did not abuse its

discretion by denying leave to amend the complaint so that the plaintiff

could disclose lawsuits that should have been disclosed initially); Wromas

v. Cromartie, 2022 WL 1450704, at *1 (N.D. Fla. May 9, 2022) (citing

multiple cases for the proposition that “[t]he Court cannot simply allow

[the prisoner] to file an amended complaint listing the omitted case

because that would not be an adequate sanction or deterrent.”).

Insofar as Plaintiff already is incarcerated, a mere admonition or a

finding of contempt would not deter Plaintiff or other prisoners from

making false representations to the court. Dismissal without prejudice

would serve as a warning to Plaintiff and others that future

misrepresentations to courts might result in more substantial sanctions.

See 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. It would invite other

prisoners to omit their litigation history, thus draining the judicial

system’s time and resources.”); Warren v. Guelker, 29 F.3d 1386, 1389

(9th Cir. 1994) (per curiam).

III. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. DISMISS this case without prejudice, pursuant to 28 U.S.C.

§ 1915A(b)(1), for maliciousness and abuse of the judicial process.

2. DIRECT the clerk of the court to close this case.

At Pensacola, Florida, this 13th day of September, 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to make recommendations regarding

dispositive matters. See N.D. Fla. Loc. R. 72.2; see also

28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). Objections to

these proposed findings and recommendations must be

filed within fourteen 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. A party must serve a copy of any

objections on all other parties. A party who fails to

object to this report and recommendation waives the

right to challenge on appeal the district court’s order

based on unobjected-to factual and legal conclusions.

See 11th Cir. Rule 3-1; 28 U.S.C. § 636. The parties also

are advised that if they dispute the accuracy of any

judicially-noticed fact, or if they otherwise wish to be

heard on the propriety of the court taking judicial

notice of that fact, they must raise this issue in an

objection to this report and recommendation.