KROFT v. WALKER

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

JIMMY LEE KROFT,

FDOC Inmate #X25395,

Plaintiff,

v. Case No. 1:24cv100/AW/ZCB

OFFICER WALKER, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Plaintiff Jimmy Lee Kroft is incarcerated in the Florida

Department of Corrections. He is proceeding pro se and in forma

pauperis in this civil rights action under 42 U.S.C. § 1983. (Docs. 4, 6).

The Court has screened Plaintiff’s complaint and recommends that this

case be dismissed without prejudice as malicious under 28 U.S.C.

§ 1915(e)(2)(b) and 28 U.S.C. § 1915A(b)(1) because Plaintiff has abused

the judicial process.

The prisoner civil rights complaint form requires a prisoner to

disclose his prior litigation history. The form must be signed under

penalty of perjury. The Eleventh Circuit has made clear that a prisoner’s

case may be dismissed without prejudice for failing to accurately disclose

his litigation history on the complaint form. See, e.g., Burrell v. Warden

I, 857 F. App’x 624, 625 (11th Cir. 2021) (affirming dismissal of prisoner’s

complaint where prisoner failed to identify two prior federal lawsuits).1

Dismissal is appropriate, even if the prisoner claims that a

misunderstanding caused his failure to accurately disclose his litigation

history. See Redmon v. Lake Cnty. Sheriff’s Office, 414 F. App’x 221, 226

(11th Cir. 2011) (affirming dismissal for failure to disclose litigation

history and concluding that prisoner’s failure was not excused by his

claimed misunderstanding of the form).

Here, the complaint form required Plaintiff to disclose information

regarding prior civil cases he had filed in state and federal courts. (Doc.

1 A raft of Eleventh Circuit cases say the same thing. See, e.g., Kendrick

v. Sec’y, Fla. Dep’t of Corr., No. 21-12686, 2022 WL 2388425, at *3 (11th

Cir. July 1, 2022) (“A plaintiff’s bad-faith litigiousness or manipulative

tactics, which include lying about one’s litigation history, warrant

dismissal under § 1915”); Rickerson v. Sec’y, Fla. Dep’t of Corr., No. 21-

12110-F, 2021 WL 6098415, at *1 (11th Cir. Nov. 2, 2021) (concluding

dismissal of prisoner’s complaint as malicious was warranted where

plaintiff disclosed six state actions and two federal actions but failed to

disclose additional state actions that related to his incarceration or

conditions of confinement); Sears v. Haas, 509 F. App’x 935, 935-36 (11th

Cir. 2013) (affirming dismissal of prisoner’s complaint as malicious for

abuse of judicial process where prisoner failed to disclose previously filed

cases); Jackson v. Fla. Dep’t of Corr., 491 F. App’x 129, 132-33 (11th Cir.

2012) (same); Shelton v. Rohrs, 406 F. App’x 340, 340-41 (11th Cir. 2010)

(same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006) (same).

4 at 8-12). Question C of that Section asked Plaintiff if he had “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.” (Id. at 10). Plaintiff disclosed the following five cases:

(1) Kroft v. Inch, et al., Case No. 2:20cv396 (M.D. Fla.)

(2) Kroft v. Quaranta, Case No. 2:22cv275 (M.D. Fla.)

(3) Kroft v. Snider, Case No. 2:22cv725 (M.D. Fla.)

(4) Kroft v. Snider, et al., Case No. 2:22cv750 (M.D. Fla.)

(5) Kroft v. O’Neal, Case No. 2:24cv258 (M.D. Fla.)

(Doc. 4 at 11). At the end of the complaint form, Plaintiff signed his name

after the following certification: “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 12).

Plaintiff, therefore, certified that at the time he filed this case on

June 14, 2024, he had not filed any other state or federal lawsuits, habeas

petitions, or appeals either challenging his conviction or relating to the

conditions of his confinement.2 The Court has screened Plaintiff’s

2 The “filed” date is the date Plaintiff certified that he delivered the

complaint to jail officials for mailing. See Houston v. Lack, 487 U.S. 266,

270 (1988) (a pro se prisoner’s document is deemed filed on the date the

complaint under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A to

determine whether it is subject to dismissal for any of the grounds listed,

including maliciousness. Upon researching Plaintiff’s litigation history,

the Court has discovered that Plaintiff failed to accurately disclose his

litigation history on the complaint form. According to Public Access to

Court Electronic Records (PACER), before Plaintiff filed the complaint in

this case, he filed two undisclosed federal appeals that related to the

conditions of his confinement:

(1) Kroft v. Charlotte CI Warden, et al., Case No. 23-11168 (11th

Cir.) (filed Apr. 11, 2023) (appealing decision in Kroft v. Snider,

et al., Case No. 2:22cv750 (M.D. Fla.)); and

(2) Kroft v. Snider, et al., Case No. 23-11205 (11th Cir.) (filed Apr.

12, 2023) (appealing decision in Kroft v. Snider, Case No.

2:22cv725 (M.D. Fla.)).

Because Plaintiff filed these appeals prior to filing the current

lawsuit and these appeals related to the conditions of Plaintiff’s

confinement, they should have been disclosed in Question C. See

generally Sheffield v. Brown, No. 5:23-cv-238/TKW/MJF, 2023 WL

prisoner delivered it to prison authorities for forwarding to the court).

9105658, at *2 (N.D. Fla. Dec. 14, 2023) adopted by 2023 WL 9018377

(dismissing prisoner complaint as malicious where prisoner failed to

disclose two prior appeals).

How does the Court know that this Jimmy Lee Kroft and the Jimmy

Lee Kroft who filed the above appeals are the same person? The plaintiff

in the above appeals listed FDOC Inmate #X25395 on his mailing

envelopes for his notices of appeal. Plaintiff listed the same inmate

number (#X25395) on the complaint form in this case. (Doc. 1 at 7-8; Doc.

4 at 1).

The prior litigation portion of the complaint form serves important

purposes. First, it permits efficient consideration of whether the prisoner

is entitled to pursue the current action under the Prison Litigation

Reform Act’s “three strikes” provision. Second, it allows the Court to

determine whether an action is related to, or otherwise should be

considered in conjunction with, another lawsuit. Third, it enables the

Court to determine whether any issues raised in the current action have

been previously decided by another judge. These purposes are thwarted,

and the efficiency of the judicial system diminished, when a prisoner

misstates his litigation history on the complaint form.

Plaintiff’s pro se status does not excuse him from following the

rules, including the requirement that litigants be truthful with the Court.

See Kendrick v. Sec’y, Fla. Dep’t of Corr., No. 21-12686, 2022 WL 2388425,

at *3 (11th Cir. July 1, 2022) (stating that pro se litigants “owe the same

duty of candor to the court as imposed on any other litigant”). The Court

is concerned that if misrepresentations on the complaint form are not met

with consequences, then word will spread throughout the prisons that

the complaint forms need not be truthfully completed. See Rodriguez v.

Inch, No. 4:19cv191/RH/HTC (Doc. 52) (N.D. Fla. June 7, 2020) (“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.”).

As detailed above, Plaintiff misstated—under penalty of perjury—

his prior litigation history on the complaint form. Consistent with the

Eleventh Circuit precedent previously cited, Plaintiff’s complaint should

be dismissed without prejudice.3

3 Providing Plaintiff an opportunity to amend his complaint to disclose

Accordingly, it is respectfully RECOMMENDED that:

1. This case be DISMISSED without prejudice as a malicious

abuse of the judicial process under 28 U.S.C. § 1915(e)(2)(B) and 28

U.S.C. § 1915A(b)(1); and

2. The Clerk of Court be directed to enter judgment accordingly

and close this case.

At Pensacola, Florida, this 17th day of September 2024.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

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 and does not control. An objecting party must

serve a copy of the objections on 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 unobjected-to factual and legal

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

the previous lawsuit would be an inadequate sanction. 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 not providing a prisoner with

an opportunity to amend his complaint to disclose lawsuits that should

have been disclosed initially).