United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Plaintiff
Torreco Hoskin, an Alabama prison inmate proceeding pro
se and in forma pauperis, 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 complaint (Doc. 1), 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.
Because
Hoskin sought leave to proceed in forma pauperis by
filing his Motion to Proceed Without Prepayment Fees, the
Court is required to screen his complaint (Doc. 1) 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).
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 the
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, 920, 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2014) (unpublished) (affirming the finding that the action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(11th Cir. 2013) (unpublished) (finding an action's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).
When an
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 §
6-2-38(1).
II.
Analysis.
In the
present action, the complaint form asked Hoskin whether he
had filed lawsuits, in state or federal court, dealing with
the same or similar facts or relating to his imprisonment.
(Doc. 1 at 3). He responded that he had filed one other
action, Hoskin v. Roy, No. 4:12-cv-02067-CLS-HGD
(N.D. Ala. 2015), dealing with same or similar facts involved
in this action. (Id.). And he denied having filed
other lawsuits related to his imprisonment. (Id.).
Hoskin then proceeded to sign his complaint under penalty of
perjury. (Id. at 7).
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)[1]that Hoskin previously filed
another action concerning his imprisonment of which he did
not advise the Court, namely, Hoskin v. C.O. Brian
Fife, No. 4:14-cv-00328-WMA-HGD (N.D. Ala. 2016). In
this prior action, Hoskin complained, among other things, of
being sprayed with pepper spray, then being refused a body
chart, being left in his cell, and having his personal
property and legal mail taken from him. (Doc. 16 at 4-5). He
sought to be transferred away from St. Clair to another
institution as he feared for his life. (Id. at 1;
Doc. 1 at 4).
After
discovering and reviewing this prior action, the Court
concludes that Hoskin did not provide the information
requested by the complaint form about his prior actions.
(Doc. 1 at 3). Therefore, when he filed the present complaint
on October 3, 2018, he knowingly chose not to list all his
prior actions, and he then proceeded to sign his complaint
under penalty of perjury. (Id. at 7).
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. See Doctor v. Nichols, No.:
3:15cv273/MCR/EMT, 2015 WL 5546397, at *3 (N.D. Fla. 2015)
(unpublished). When the prisoner fails to provide information
about all 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, 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).
Because
Hoskin 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 undersigned 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 for § 1983 actions had expired.
An
examination of the substance of the complaint reflects that
Hoskin named Correctional Officer I McQuarter as the sole
Defendant for spraying him with pepper spray on August 6,
2018 and with cell buster on August 10, 2018 and for denying
him a body chart on each occasion. (Doc. 1 at 4-5). And,
while he was in segregation, Defendant McQuarter is alleged
to have given away his shoes. (Id. at 4). For
relief, Hoskin wants to be transferred away from Holman
because he is afraid, or to have Defendant fired.
(Id. at 7).2 Considering that the incident in the
complaint occurred in August, 2018, Hoskin will be able to
re-file his action before ...