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Russell v. Cochran

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

October 1, 2018

CECIL LEE RUSSELL, #0767303, Plaintiff,
v.
SAM COCHRAN, et al., Defendants.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Cecil Lee Russell, a Mobile County Metro Jail (“Metro Jail”) pretrial detainee 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. GenLR 72(a)(2)(R). After careful review of the amended complaint (Doc. 5), 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).

         I. Legal Standards for Screening a Complaint for Maliciousness.

         Russell commenced this action by filing a handwritten complaint titled “Petition for Leave to Proceed with Section 1983 Complaint.” (Doc. 1). Russell explained that he is seeking permission to file his complaint because he is under a Rule 11 sanctions order imposed by the Fifth Circuit in Russell v. Harrell, filed in the United States District Court in Amarillo, Texas, in 1996. (Doc. 1 at 2). He claims that he paid the monetary portion of the sanction in 1997, but the order also requires that he seek permission from a court before he can file a future complaint.[1] (Id.). He states, under penalty of perjury, that he is attempting to comply with this requirement, but he does not have access to a law library in the Metro Jail to ascertain if he is in full compliance with the guidelines and that “he will faithfully comply with all Rules of Court.” (Id.).

         The Court received Russell's complaint on March 14, 2018, without a motion to proceed without prepayment of fees or the payment of the $400 filing/administrative fee.[2] Thus, the Court ordered him to pay the $400 fee or, if he was unable to do so, to file a motion to proceed without prepayment of fees and to file an amended superseding complaint on the Court's § 1983 complaint form. (Doc. 2 at 1). The Court also advised him “to carefully read the instructions on the forms and to fully complete the forms, ” in light of his statement about the Texas sanctions order imposed against him. (Id.). In response, Russell filed a complaint on this Court's § 1983 complaint form (Doc. 5) and a Motion to Proceed Without Prepayment of Fees (Doc. 6).

         Because Russell is seeking leave to proceed in forma pauperis by filing a Motion to Proceed Without Prepayment Fees, the Court is required to screen his amended complaint under 28 U.S.C. § 1915(e)(2)(B). This section requires 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).[3]

         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 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, 930, 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 action's dismissal as 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);[4] 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).

         When an action is dismissed without prejudice as malicious, the Court considers whether the action may be re-filed. See Schmidt, 576 Fed.Appx. at 899 (affirming a malicious dismissal without prejudice for plaintiff's failure to advise of prior lawsuits, because the statute of limitations did not bar the complaint's re-filing). When a statute of limitations has expired, a dismissal without prejudice is tantamount to a dismissal with prejudice because the plaintiff is unable to re-file an action, and then the court should 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 § 6-2-38(1).

         II. Analysis.

         This Court's § 1983 complaint form asked Russell to state if he had 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. (Doc. 5 at 3). Plaintiff answered “no” 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 amended complaint were true and correct. (Id. at 12). And he responded with “N/A” to the form's other questions about prior lawsuits. (Id. at 3).

         The Court, in screening the complaint under 28 U.S.C. § 1915(e)(2)(B), discovered in its examination of PACER (Public Access to Court Electronic Records)[5] that Russell previously filed several other actions that he did not acknowledge when he responded with “no” to having filed other lawsuits related to his imprisonment and did not list those lawsuits when the complaint form asked that he list them and that he provide certain information about them, namely, Russell v. Warren, 6:92-cv-00570-HWM (E.D. Tex. 1993) (dismissed as frivolous); Russell v. Tarver, 6:92-cv-00619-WWJ (E.D. Tex. 1992) (action dismissed with prejudice prior to service of process)[6]; Russell v. Conway, 6:94-cv-00308-WWJ (E.D. Tex. 1996) (dismissed on plaintiff's motion after evidentiary hearings); Russell v. Roy, 6:95-cv-00317-WWJ (E.D. Tex. 1997)(stipulation of dismissal with prejudice); Russell v. Dabbs, 9:94-cv-00095-JH (E.D. Tex. 1994) (dismissed on plaintiff's motion before service); Russell v. Price, 9:95-cv-00162-JH-WCR (E.D. Tex. 1996) (dismissed pursuant to sanctions imposed by the Northern District of Texas), aff'd (5th Cir. 1996); Russell v. Amarillo Police Department, 2:16-cv-00050-J-BB (N.D. Tex. 2016)(enforcing sanction order for failing to follow procedure that requires plaintiff to first obtain permission to file the present civil rights complaint even though he paid the $180 monetary sanction and address, at a minimum, “why the sanctioned party should not be held to the sanction he incurred as a result of his abusive litigation” (Doc. 6)); Russell v. Lorie Davis, Director of TDCJ-CID, 2:16-cv-00056-J-BB (N.D. Tex. 2016) (habeas) (dismissed pursuant to the sanction order)[7]; Russell v. State of Texas, 2:01-cv-00289-J (N.D. Tex. 2001) (habeas); Russell v. Harrell, 2:92-cv-00229-BB (N.D. Tex. 1994) (judgment for defendants after an evidentiary hearing), aff'd (5th Cir. 1995);[8] Russell v. George, 2:93-cv-00214-J (N.D. Tex. 1994)(voluntarily dismissed before service).

         After discovering and reviewing these prior actions, the Court concludes that Russell did not provide the information requested by the complaint form about his prior actions (Doc. 5 at 3), even after the Court in its order pointed out to him to fully complete the form and to read carefully the form's instructions, particularly in light of him being sanctioned in a prior action. (Doc. 2 at 1). Therefore, when he filed the present amended complaint on August 27, 2018, he knowingly chose not to list his prior actions, (except that he implicitly indicated a prior action by mentioning the sanctions order), and then he proceeded to sign his complaint under penalty of perjury. (Id. at 12).

         The 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. (Id.).

         Moreover, the judicial system is structured so that when a plaintiff files a civil action, he certifies to the court that his signed pleading “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 ...


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