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Cole v. Rich

United States District Court, S.D. Alabama, Southern Division

July 22, 2014

JOSEPH JOHNSON COLE, Plaintiff,
v.
ASHLEY MOONEY RICH and JOJO SCHWARZAUER, Defendants.

REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, Magistrate Judge.

The pro se Plaintiff, a detainee in the Mobile County Metro Jail, has filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After careful consideration of the pleadings on record, it is recommended that this action be DISMISSED WITH PREJUDICE prior to service of process as frivolous and malicious under 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B)(i).

I. Background and Procedural History

Plaintiff has filed a motion to proceed in forma pauperis, has not paid a filing fee, and the review process required by 28 U.S.C. § 1915A is ongoing in order to determine if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted. Plaintiff alleges that since his incarceration at the Mobile Metro Jail on March 11, 2014, he has been held without a hearing[1] and his constitutional rights have been violated. (Doc. 1, at 4.) Specifically, the plaintiff contends that his 5th, 6th, 8th, and 14th Amendment rights have been violated because he was not provided a hearing within seventy two (72) hours of his arrest, as required by the Alabama Rules of Court. ( Id. at 4-5.) Accordingly, he filed a claim pursuant to 42 U.S.C. § 1983. ( Id. ) Before the initiation of this action, plaintiff contends that he filed a "grievance" with the Clerk of Court, JoJo Schwarzauer, and the Mobile County District Attorney, Ashley Rich. ( Id. at 4.) Cole contends that he received no response from the defendants, despite informing Rich and Schwarzauer that his constitutional rights were being violated and the Court was violating the Alabama Rules of Court. ( Id. )[2] As relief, Cole requests that this Court dismiss the charges against him for which he is being held, as well as release him from custody. (Doc. 1, at 7.)

II. Prior Litigation History

A. Law requiring disclosure of prior related litigation.

The federal statute authorizing incarcerated plaintiffs to file complaints in forma pauperis also allows for the dismissal of such complaints if they are found to be frivolous or malicious. See 28 U.S.C. § 1915(e)(2)(B)(i) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action... is frivolous or malicious[.]"); 28 U.S.C. § 1915A(b)(1) ("On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous [or] malicious[.]"). A claim is frivolous, as a matter of law, where, inter alia, the defendants are immune from suit, or the claim seeks to enforce a right that clearly does not exist. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). In addition, in examining a complaint pursuant to §§ 1915(e)(2) and 1915A(b)(1), the Court must assure that the limitations found in 28 U.S.C. § 1915(g) are not violated. ("In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a clam upon which relief may be granted...").

When examining a complaint under the limitations of 28 U.S.C. § 1915(g), a court "must search records of the prisoner's prior federal cases to determine whether judicial officers on 3 or more prior occasions' entered orders of dismissals and, if so, ... the reason for the dismissals[.]" Rivera v. Allin, 144 F.3d 719, 726 (11th Cir.1998), abrogated on other grounds as stated in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). So, when prisoner plaintiffs misrepresent the extent of their prior litigation history on court-provided complaint forms requiring the disclosure of such history and, further, they have done so under penalty of perjury, their actions are considered an abuse of the judicial process warranting dismissal of the case without prejudice as "malicious" under § 1915(e)(2)(B)(i). Id. at 731 (finding an action that had been dismissed for abusing the legal process because an inmate lied under penalty of perjury about a prior lawsuit to be malicious); Harris v. Warden, 498 Fed.Appx. 962, 964 (11th Cir. Nov. 27, 2012) ("[W]e are unpersuaded by Harris's claim that, given his pro se status, the district court abused its discretion in dismissing his complaint as a sanction without allowing him to correct' his failure to disclose his prior litigation history.").[3]

B. Application of Law

As required in this Court, plaintiff signed a court-provided complaint under penalty of perjury on or about April 17, 2014 ( see Doc. 1, at 7), and that complaint reached the Court's docket on the same date. A portion of the information that prisoner plaintiffs are required to include in their complaints is a complete history of the lawsuits filed in state or federal courts dealing with the same or similar facts supporting their current suit or otherwise relating to their imprisonment. (Doc. 1, at 3.) Mr. Cole did not list any prior lawsuit that he had filed in state or federal court dealing with his conditions of confinement. ( Id. ) He failed or refused to offer any identifying information that would have assisted in the search of his prior actions and the resolution of those actions, signifying an attempt to mislead the court as to his prior litigation history. ( Id. )

Plaintiff's failure to provide a complete list of his litigation history is an abuse of process and should be sanctioned, as his attempt to mislead the Court with regard to his litigation history is egregious and knowing. As recent as October of 2004, Cole filed a § 1983 claim in the Southern District of Alabama in which he complained that his constitutional rights were violated due to the Mobile Metro Jail lacking a law library for inmates to use. See Cole v. Haley, 04-0674-CG-B, Doc. 1.[4] That claim was dismissed with prejudice as frivolous under 28 U.S.C. § 1915 (e)(2)(B)(i). Id. at Doc. 11. Thus, Cole had previous litigation history in this same Court, and had knowledge of the previous suits.

The complaint filed in this action constitutes an abuse of judicial process and, therefore, is malicious pursuant to 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B)(i). Once a complaint is found to be malicious, it shall be dismissed when it is coupled with a request to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B)(i). Therefore, this issue alone would warrant dismissal of this action without prejudice. See Harris, supra . However, even assuming the plaintiff had disclosed his prior litigation history, the complaint would still be dismissed with prejudice on the grounds of immunity of the named defendants, Rich and Schwarzauer.

III. Immunity of the Named ...


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