ALFRED v. SUMMERS

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MAKENDY ALFRED,

Plaintiff,

v. Case No. 4:24-cv-252-MW/MJF

W. SUMMERS, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Upon review of Plaintiff’s amended complaint, the undersigned

recommends that this action be dismissed as malicious, under 28 U.S.C.

§ 1915A(b)(1), for Plaintiff’s failure to disclose honestly and accurately

his litigation history.

I. BACKGROUND

Plaintiff is a prisoner—as defined by the Prison Litigation Reform

Act of 1995 (“PLRA”) Pub. L. No. 104-134, 110 Stat. 1321 (1996)—

currently in the custody of the Florida Department of Corrections. His

inmate number is “L66250.” Doc. 1 at 1–2, 5; Doc. 13 at 1–2, 5.

The complaint form utilized by Plaintiff sought information

relating to his litigation history. In his original complaint, Plaintiff

provided inconsistent responses regarding his litigation history. Doc. 1 at

15–17. Plaintiff stated that this was his “First Civil Case.” Id. at 15. He

also responded “No” to each of the questions on the complaint form

regarding his litigation history, including the question “Have you ever

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 16–17 (emphasis added).

Despite his negative answers, Plaintiff also indicated that he filed

a “Criminal Appeal Habeas Corpus.” Id. at 17. Because it was unclear to

the undersigned whether Plaintiff filed a criminal appeal or a habeas

corpus petition, or Plaintiff filed a case in a state or federal court, the

undersigned afforded Plaintiff an opportunity to clarify his litigation

history. Doc. 7 at 5. Specifically, the undersigned instructed “If Plaintiff

desires to file an amended complaint, Plaintiff must completely

and honestly answer all questions regarding his prior litigation

history.” Id. at 5.

The undersigned also provided Plaintiff the following guidance

regarding the requirements relating to disclosure of Plaintiff’s prior

cases:

Habeas corpus petitions are civil actions. Brown v. United

States, 748 F.3d 1045, 1060 (11th Cir. 2014). Therefore, if

Plaintiff filed a habeas corpus petition, he must disclose that

on the form and provide sufficient information for this court

to identify the case. . . .

Plaintiff is advised that he cannot simply assert that he is

unsure about his prior litigation. If Plaintiff does not have

sufficient records or cannot remember the cases he has filed,

he must contact the relevant court(s) to determine those cases

so that he can make a full, complete, and honest accounting

of them, including whether any case was dismissed as

frivolous, malicious, for failure to state a claim, or prior to

service. Plaintiff should retain a copy of the inquiry letter (and

any response he receives) as evidence that he has made a

reasonable, good-faith effort to discover and disclose his

litigation history.

Id. The undersigned warned Plaintiff that failing to disclose his litigation

history completely and honestly likely would “result in dismissal of

this action for abuse of the judicial process.” Id.

On September 30, 2024, Plaintiff filed his amended complaint. Doc.

13. As discussed more fully below, Plaintiff failed to disclose his litigation

history honestly and completely.

II. DISCUSSION

A. Screening Under the PLRA

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 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). Pursuant to a district court’s

screening obligation under the PLRA, federal courts are required to

dismiss a prison’s civil action when it is frivolous, is malicious, or fails to

state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1).

B. Plaintiff’s Disclosures

Section VIII of the complaint form utilized by Plaintiff seeks

information regarding Plaintiff’s prior litigation. Doc. 13 at 16. The

complaint form expressly warns “Be advised that failure 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.” Id.; cf. Doc. 7 at 5.

The complaint form asks three questions:

A. Have you had any case in federal court, including federal

appellate court, dismissed as frivolous, as malicious, for

failure to state a claim, or prior to service?

B. Have you filed other lawsuits or appeals in state or

federal court dealing with the same facts or issues involved

in this case?

C. Have you file 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 16–20. 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.

In response to these Questions, Plaintiff responded, “No.” Id.

Plaintiff reiterated that “This is the Petitioner’s First Civil Case.” Doc.

13 at 16. Plaintiff, however, disclosed that he had filed three motions in

his state criminal case relating to his convicton and three state appeals.

See Doc. 13 at 17–18 (disclosing cases No. 05-020906-CF-A; No. 4D07-

3820; No. 4D10-3176; No. 4D16-0089).

At the end of the complaint, Plaintiff 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 form, including my

litigation history, is true and correct.” Id. at 20. That is, Plaintiff asserts

under the penalty of perjury that he never filed a case or appeal in

federal court.

C. Plaintiff’s Omissions

The undersigned takes judicial notice that prior to commencing this

civil action Plaintiff had filed a petition for writ of habeas corpus in the

United States District Court for the Southern District of Florida and an

appeal with the United States Court of Appeals for the Eleventh Circuit:

 Alfred v. Sec’y FDOC, No. 0:12-cv-61167-JIC (S.D. Fla.) (dismissed

July 29, 2013).

 Alfred v. Sec’y, Fla. Dep’t of Corr., No. 13-13989-D (11th Cir.) (COA

denied Nov. 25, 2013).

This habeas corpus petition and appeal are attributable to Plaintiff

because they bear his FDC inmate number L66250.

Because Plaintiff failed to disclose these cases in his amended

complaint, Plaintiff violated his duty of candor to the District 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 Omissions

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 v. Strickland, 792 F.2d

1069, 1073 (11th Cir. 1986) (per curiam); 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).

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, including petitions for writs of

habeas corpus, and appeals. Doc. 13 at 16. He also was aware that the

penalty for failing to disclose his prior litigation history was dismissal.

Id. (“[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.”).

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. Furthermore, the undersigned explained to

Plaintiff that “habeas corpus petitions are civil actions . . . Therefore, if

Plaintiff filed a habeas corpus petition, he must disclose that on the

form.” Doc. 7 at 5 (emphasis added).

To the extent he could not remember fully his litigation history, the

undersigned provided Plaintiff instructions on how to obtain information

relating to his prior cases. Doc. 7 at 5. The undersigned explained:

If Plaintiff does not have sufficient records or cannot

remember the cases he has filed, he must contact the relevant

court(s) to determine those cases so that he can make a full,

complete, and honest accounting of them, including whether

any case was dismissed as frivolous, malicious, for failure to

state a claim, or prior to service. Plaintiff should retain a copy

of the inquiry letter (and any response he receives) as

evidence that he has made a reasonable, good-faith effort to

discover and disclose his litigation history.

Id. Plaintiff did not attach to his amended complaint a copy of any inquiry

letter. He also did not state that he could not remember his litigation

history. Rather, he affirmatively misrepresented that this was his “First

Civil Case” and that he had never filed any federal action prior to

commencing this civil suit.

E. The Appropriate Sanction is Dismissal Without Prejudice

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.”).

“[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 to 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. Because Plaintiff is alleging that FDC officials

engaged in misconduct between April 22, 2023, and May 4, 2023,

Florida’s four-year statute of limitations likely would not preclude

Plaintiff from refiling this action in the near future. Shelton v. Rohrs, 406

F. App’x 340, 341 (11th Cir. 2010).

F. No Lesser Sanction Would Suffice

No lesser sanction would suffice to deter plaintiff’s conduct. The

undersigned provided Plaintiff guidance on disclosing his litigation

history and warned Plaintiff that the failure to disclose honestly and

completely his litigation history likely would result in dismissal. Doc. 7

at 5. Nonetheless, Plaintiff did not disclose honestly and completely his

litigation history. Providing Plaintiff yet another opportunity to amend

his complaint to disclose the previous lawsuits 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).

Furthermore, 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 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 21st day of October, 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 address preliminary matters and 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

(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 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 parties also are advised that if they

dispute the accuracy of any facts taken from judicially-

noticed documents, or if they otherwise wish to be

heard on the propriety of the court taking judicial

notice of those facts, they must raise this issue in an

objection to this report and recommendation.