United States District Court, S.D. Alabama, Southern Division
DARRYL D. RIGGINS, #184051, Plaintiff,
CORIZON, INC., et al., Defendants.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Plaintiff, an Alabama prison inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983 together with a motion to proceed without prepayment of fees. 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, it is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as malicious and that this action be counted as a strike for the purpose of 28 U.S.C. § 1915(g), or in the alternative, that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
I. POSTURE OF ACTION.
Plaintiff's action comes before the Court for screening pursuant 28 U.S.C. § 1915(e)(2)(B) due to plaintiff having filed a motion to proceed without prepayment of fees. (Doc. 2). This section provides for the dismissal of an action that is found to be malicious. 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff used the Court's § 1983 complaint form when he commenced this § 1983 action against numerous defendants. (Doc. 1). Plaintiff stated, in response to the complaint form's questions, that he had not filed other lawsuits in state or federal court with the same or similar facts involved in this action and had not filed other lawsuits relating to his imprisonment. (Id. at 3). Furthermore, plaintiff signed his complaint under penalty of perjury stating that the facts in his complaint were true and correct. (Id. at 7).
A. Legal Standards for Maliciousness Under § 1915(e)(2)(B)(i).
An action is deemed malicious under § 1915(e)(2)(B)(i) when a prisoner plaintiff affirmatively misrepresents his prior litigation history on a complaint form requiring disclosure of such history and signs the complaint form under penalty of perjury, as such a complaint "constitutes abuse of the judicial process warranting dismissal of the case without prejudice." Thompson v. Quinn, No. 3:11cv533/RV/EMT, 2012 WL 6761569, at *1 (N.D. Fla. Dec. 4, 2012) (unpublished) (collecting cases), adopted, 2013 WL 45259 (N.D. Fla. Jan. 2, 2013); see Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (upholding counting as a strike under § 1915(g) an action that was dismissed for an abuse of legal process when the inmate lied under penalty of perjury about a prior lawsuit), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 215-17 (2007); Schmidt v. Navarro, 576 F.Appx. 897, 898-99 (11th Cir. 2014) (unpublished) (affirming the dismissal without prejudice of action pursuant to § 1915(e)(B)(2)(i) as malicious as a sanction for the plaintiff's abuse of process when he failed to disclose under penalty of perjury two prior federal actions on his complaint form); Harris v. Warden, 498 F.Appx. 962, 964 (11th Cir. 2012) (unpublished) (dismissing without prejudice an action for abuse of process when the inmate failed to disclose his litigation history in his original and amended complaints even though the form complaint described the type of cases he was bound to disclose); Jackson v. Florida Dep't of Corrs., 491 F.Appx. 129, 132 (11th Cir. 2012) (unpublished) (affirming the dismissal without prejudice of inmate's action as malicious because he abused the judicial process when under penalty of perjury he represented in his complaint that he had no action dismissed prior to service process, whereas he had two, one of which was contained in the complaint but not in the section inquiring about such cases), cert. denied, 133 S.Ct. 2050 (2013); Redmon v. Lake County Sheriff's Office, 414 F.Appx. 221, 223, 225-26 (11th Cir. 2011) (unpublished) (affirming the dismissal without prejudice of the inmate's action signed under penalty of perjury which was found to be abusive when he did not disclose a lawsuit that he filed when the complaint form asked for disclosure of all lawsuits relating to his imprisonment or conditions of imprisonment, regardless of his response that he did not understand the form); Shelton v. Rohrs, 406 F.Appx. 340, 340 (11th Cir. 2010) (unpublished) (affirming the dismissal without prejudice of the inmate's complaint under § 1915(e)(2)(B)(i) for an abuse of process after he checked "no" to the complaint form's question asking if he had filed other actions in state or federal court because the case management system reflected he had filed four actions and he would have known that he had filed multiple actions, thereby rejecting his argument that he did not remember filing any civil actions and his records were inaccessible); Young v. Secretary Fla. Dep't of Corrs., 380 F.Appx. 939, 940 (11th Cir. 2010) (unpublished) (affirming the sua sponte dismissal of the inmate's action pursuant § 1915(e)(2)(B)(i) for an abuse of process when he did not disclose his prior lawsuits despite his argument that he lacked access to the documents due to the "excess legal material" rule); Hood v. Tompkins, 197 F.Appx. 818, 819 (11th Cir. 2006) (unpublished) (affirming the dismissal of an inmate's § 1983 action for an abuse of process because he responded with "no" to the complaint form's question asking whether he had brought any other lawsuits dealing with facts other than those in his action because he had in fact brought other lawsuits and the question was not ambiguous; "the district court was correct to conclude that to allow Hood to then acknowledge what he should have disclosed earlier would serve to overlook his abuse of the judicial process"). Furthermore, when a court dismisses without prejudice an action that it finds malicious, it must consider whether the action may be re-filed or if the dismissal without prejudice is effectively a dismissal with prejudice due to the statute of limitations preventing the plaintiff from re-filing the action. Stephenson v. Warden, 554 F.Appx. 835, 838 (11th Cir. 2014) (unpublished); see Schmidt, 576 F.Appx. at 899 (affirming the dismissal without prejudice of an action as malicious, based on plaintiff's failure to advise of prior lawsuits as required by the complaint form, because the complaint could be re-filed as the statute of limitations had not expired).
B. Application of Law to Facts.
In the present complaint, plaintiff indicates that he previously did not file other lawsuits, in state or federal court, which contain the same or similar facts as those in the present action or which relate to his imprisonment. (Doc. 4 at 3). However, an examination of PACER ("Public Access to Court Electronic Records") reflects twenty-nine cases for plaintiff.,  Included in this number are the present action and three actions that were transferred, resulting in another case being opened for each case by the receiving courts. (In addition, this review informed the Court that § 1915(g) appears to have the effect of causing plaintiff to file some of his recent lawsuits in state court, as evidence by three actions that were removed to federal court by defendants.) Furthermore, plaintiff has had thirteen actions dismissed pursuant to 28 U.S.C. § 1915(g).
In Rivera, supra, the Eleventh Circuit affirmed the district court's dismissal of the prisoner's action without prejudice as a sanction for "abus[ing] the judicial process" when he lied under penalty of perjury about the existence of a prior lawsuit, and the district court's treatment of the dismissal as a strike. 144 F.3d at 731. In its affirmance, the Eleventh Circuit reasoned that "[a]lthough the district court may not have uttered the words frivolous' or malicious, ' dismissal for abuse of the judicial process is precisely the type of strike that Congress envisioned when drafting section 1915(g)." Id. In the subsequent case of Pinson v. Grimes, 391 F.Appx. 797 (11th Cir.) (unpublished), cert. denied, 131 S.Ct. 517 (2010), the Eleventh Circuit, relying on Rivera, affirmed the district court's "finding an abuse of judicial process and issuing a strike" when the prisoner had only listed two prior cases despite having filed two other federal cases within the preceding month. Id. at 799.
When plaintiff filed the present action, he knowingly chose not to list his previously filed actions. It is evident that plaintiff was and is aware of his prior actions because he eventually began filing his § 1983 actions in state court due to § 1915(g)'s impact on his prior federal court § 1983 actions, and because his prior actions that were dismissed pursuant to § 1915(g) listed prior actions that qualified him for § 1915(g) treatment. Nonetheless, plaintiff proceeded to sign the present complaint under penalty of perjury. (Doc. 4 at 7). This type of behavior by a prisoner plaintiff is deemed by the courts to be an abuse of the judicial process so as to warrant the action's dismissal as malicious pursuant to § 1915(e)(2)(B)(i) and to it being counted as a strike for § 1915(g) purposes. Rivera, supra; Pinson, supra. Inasmuch as plaintiff identifies July 25, 2014 as the date for the complained of incident, the two-year statue of limitations for bringing a § 1983 claim in Alabama has not expired. See Lufkin v. McCallum, 956 F.2d 1104, 1105, 1108 n.2 (11th Cir.), cert. denied, 506 U.S. 917 (1992); ALA. CODE § 6-2-38(l). Accordingly, the Court finds that plaintiff's action is malicious and recommends that it be dismissed without prejudice.
C. Legal Standards for Dismissal Under 28 U.S.C. § 1915(g).
An alternative basis for dismissal of this action is 28 U.S.C. § 1915(g). When the complaint was filed, plaintiff filed a motion to proceed without prepayment of fees and did not pay $400 filing fee, which he is required to pay as a ...