United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
Larry Roger Baisden, II, an Alabama prison
inmate proceeding pro se, filed an
action under 42 U.S.C. § 1983, which has been referred
to the undersigned for appropriate action pursuant to 28
U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72(a)(2)(R).
After careful review of the complaint as amended (Docs. 1,
11, 12), it is recommended that, prior to service of process,
this action be dismissed without prejudice as malicious
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Legal Standards for Screening a Complaint for
reviewing this transferred-in action to address many
outstanding matters, the Court discovered that Baisden did
not pay the $400 filing/administrative fee or file a motion
to proceed without prepayment of fees when he filed his
complaint in the United States District Court for the Middle
District of Alabama. See Doc. 1 (entry on docket
sheet); Doc. 2 (Recommendation of the Magistrate Judge to
transfer, p. 1, n.1); see also 28 U.S.C. § 1914
(requires “the parties instituting any civil action . .
. to pay a filing fee”); 28 U.S.C. § 1915(a)(1)
(“any court of the United States may authorize the
commencement . . . action . . . without prepayment of fees or
security therefor, by a person who submits an affidavit that
includes a statement of all assets such prisoner possesses
that the person is unable to pay such fees or give security
therefor”). Notwithstanding Baisden's failure to
comply with the requirements for filing a civil complaint,
when he sent his complaint to the court, he used this
Court's complaint form for a § 1983 action. (Doc.
1). Thus, there is no need for the Court to require Baisden
to re-file his complaint on this Court's complaint form.
filing this action, Baisden has been actively litigating his
case, as evidenced by his numerous filings reflected on the
docket. Nonetheless, he has not filed a motion to proceed
without prepayment of fees or paid the $400
filing/administrative fee even though he knows that one or
the other is required of him. However, if Baisden had sought
and been granted in forma pauperis status under 28
U.S.C. § 1915, or if he had paid the $400
filing/administrative fee, the Court would be required to
screen his complaint in either situation. See 28
U.S.C. § 1915(e)(2)(B) (providing for ifp
status and screening of prisoners' complaints); 28 U.S.C.
§ 1915A (providing for screening of prisoners'
complaints whether the fee is paid or ifp is
granted). Both § 1915(e)(2)(B) and § 1915A require
the dismissal of a prisoner action if it is determined that
the action is frivolous or malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); 28 U.S.C. §
action is deemed malicious under § 1915(e)(2)(B)(i) and
§ 1915A(b)(1) when a prisoner plaintiff affirmatively
misrepresents his prior litigation history on a complaint
form requiring disclosure of such history and signs it under
penalty of perjury, as such a complaint is an abuse of the
judicial process warranting dismissal without prejudice as
malicious. See Rivera v. Allin, 144 F.3d 719, 731
(11th Cir. 1998) (affirming the counting as a strike under 28
U.S.C. § 1915(g) an action that was dismissed for an
abuse of legal process because 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, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007); see also, e.g.,
Schmidt v. Navarro, 576 Fed.Appx. 897, 898-99 (11th Cir.
2014) (unpublished) (affirming the finding that the action
was malicious because the plaintiff abused the judicial
process when he failed to disclose the existence of two prior
federal actions in his complaint signed under penalty of
perjury); Sears v. Haas, 509 Fed.Appx. 935,
935-36 (11th Cir. 2013) (unpublished) (finding an
action's dismissal without prejudice as malicious for an
abuse of judicial process was warranted where, in a complaint
signed under penalty of perjury, the inmate failed to
disclose a case filed just five months before and another
case filed six years earlier); Harris v. Warden, 498
Fed.Appx. 962, 964 (11th Cir. 2012) (unpublished) (dismissing
without prejudice an action for abuse of process when the
inmate failed to disclose the type of cases the complaint
form required him to disclose); Jackson v. Florida
Dep't of Corrs., 491 Fed.Appx. 129, 131-32 (11th
Cir. 2012) (unpublished) (affirming the dismissal without
prejudice of an inmate's action as malicious because he
abused the judicial process when under penalty of perjury he
avowed on the complaint form that he had no action dismissed
prior to service process even though he had one), cert.
denied, 569 U.S. 960 (2013); Redmon v. Lake Cty.
Sheriff's Office, 414 Fed.Appx. 221, 223, 225-26
(11th Cir. 2011) (unpublished) (affirming the dismissal
without prejudice of the inmate's action that was found
to be abusive when he filed a complaint signed under penalty
of perjury and did not disclose a prior lawsuit relating to
his imprisonment or conditions of imprisonment when the
complaint form asked for disclosure of such lawsuits);
Shelton v. Rohrs, 406 Fed.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); Pinson v. Grimes, 391 Fed.Appx. 797,
799 (11th Cir.) (unpublished) (relying, on Rivera,
the Eleventh Circuit affirmed the determination of an abuse
of the judicial process and the issuance of a strike when the
prisoner had listed only two prior cases even though he filed
two other federal cases within the preceding month),
cert. denied, 562 U.S. 1013 (2010).
action is dismissed without prejudice as malicious, the Court
must consider whether the action may be re-filed. See
Schmidt, 576 Fed.Appx. at 899 (affirming the dismissal
without prejudice of an action as malicious for the
plaintiff's failure to advise of prior lawsuits, because
the complaint could be re-filed as the statute of limitations
had not expired). When the statute of limitations has
expired, a dismissal without prejudice is tantamount to a
dismissal with prejudice because a plaintiff is unable to
re-file a viable action, and the court should then consider
lesser sanctions. Stephenson v. Warden, 554
Fed.Appx. 835, 838 (11th Cir. 2014) (unpublished); Hines
v. Thomas, 604 Fed.Appx. 796, 800 (11th Cir. 2015)
(unpublished). In Alabama, the statute of limitations for
filing a § 1983 action is two years. Lufkin v.
McCallum, 956 F.2d 1104, 1105, 1108 n.2 (11th Cir.),
cert. denied, 506 U.S. 917 (1992); Ala. Code §
present action, Baisden used this Court's § 1983
complaint form when he commenced this action. (Doc. 1). The
complaint form asks a plaintiff to state if he has filed
other lawsuits, in state or federal court, that have the same
or similar facts involved in his present action or that are
related to his imprisonment. (Id. at 3). Baisden
answered “yes” to the question asking if he had
filed a prior lawsuit with similar facts involved in this
lawsuit. (Id.). And he answered
“no” to the question asking if he had filed other
lawsuits relating to his imprisonment. (Id.). He
then signed his complaint under penalty of perjury stating
that the facts in his complaint were true and correct.
(Id. at 10).
Court, in screening the complaint under 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b), discovered in
its examination of PACER (Public Access to Court Electronic
Records) that Baisden previously filed three other
actions that he did not mention, namely, Baisden v.
Officer Dejarnette, CA No. 2:15-cv-00549-MHT-GMB (M.D.
Ala. 2015) (ordered to pay a partial filing fee of $58.05);
Baisden v. Corizon Health Servs., CA No.
2:15-cv-00550-WKW-TFM (M.D. Ala. 2016) (ordered to pay a
partial filing fee of $58.05, which was paid; dismissed on
defendants' motions to dismiss); Baisden v. Corizon
LLC, CA No. 2:17-cv-00627-MHT-GMB (M.D. Ala. pending)
(filed September 21, 2017; granted ifp; complained about
no dental care at Kilby Correctional Facility for severe
tooth pain; pending). After discovering and reviewing these
prior actions, the Court concludes that Baisden did not
provide the information requested by the complaint form about
his prior actions. (Doc. 1 at 3). Therefore, when Baisden
filed the present complaint on October 3, 2017, he knowingly
chose not to list his prior actions, and then he proceeded to
sign his complaint under penalty of perjury. (Id. at
Court's complaint form requests information about prior
actions from a prisoner plaintiff to assist it in determining
if the prisoner is barred under 28 U.S.C. § 1915(g) (the
“three-strikes” rule), if the action is connected
to another action, and if the plaintiff is familiar with
litigating his claims. Doctor v. Nichols, 2015 WL
5546397, at *3 (N.D. Fla. 2015) (unpublished). When the
prisoner fails to provide the information about his prior
actions on the complaint form, the Court is deprived of this
knowledge to assist it in handling the prisoner's action,
which causes the Court to expend more resources and time.
the judicial system is structured so that when a plaintiff
files a civil action, he certifies to the court that his
signed pleading, filing, or other paper “to the best of
[his] knowledge, information and belief, formed after an
inquiry . . . is not being presented for any improper purpose
. . . and the factual contentions have evidentiary
support....” Fed.R.Civ.P. 11(a) & (b)(1) & (2). The
purpose of Rule 11 is to impress on the signer his personal
responsibility of validating “the truth and legal
reasonableness of the document” he is filing, which
assists in conserving the court system's resources and in
avoiding unnecessary proceedings. Business Guides, Inc.
v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533,
543, 547, 111 S.Ct. 922, 929, 931, 112 L.Ed.2d 1140 (1991).
Baisden was not truthful to the Court about his prior
litigation on his complaint form, his action is subject to
being dismissed as malicious for abusing the judicial
process. The only reason the Court would not recommend this
action's dismissal without prejudice is if the present
action could not be re-filed because the two-year statute of
limitations had expired.
examination of the substance of the original complaint
reflects that Baisden named LIFE Tech as the sole Defendant.
He complains that he was in pain from a hole in his tooth
when he left Kilby. (Id. at 4). On September 26,
2017, he arrived at LIFE Tech from Kilby with paperwork
stating that he needed to be seen by a dentist immediately.
(Id.). At LIFE Tech, he was told that he would have
to pay for an immediate dental appointment or he could wait
for months to be seen. (Id.). He told them he was in
severe pain, was having trouble eating, and was without
money. (Id.). He received ...