United States District Court, S.D. Alabama, Southern Division
BARRY L. MOTES, JR., # 243680, Plaintiff,
TREY OLIVER, III, et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
Barry L. Motes, Jr., an Alabama prisoner proceeding pro
se and in forma pauperis, filed the instant
action seeking relief under 42 U.S.C. § 1983, which has
been referred to the undersigned Magistrate Judge 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 this action be
dismissed without prejudice, prior to service of process, as
malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Legal Standards for Screening a Complaint for
Motes seeks leave to proceed in forma pauperis by
filing his motion to proceed without prepayment of fees (Doc.
2), the Court is required to screen his complaint (Doc. 1)
under 28 U.S.C. § 1915(e)(2)(B). That section requires
the dismissal of an in forma pauperis prisoner
action if it is determined that the action is frivolous or
malicious, fails to state a claim upon which relief may 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 of an
action that was dismissed for abuse of the judicial process
because the inmate lied under penalty of perjury about the
existence of a prior lawsuit as a strike under 28 U.S.C.
§ 1915(g)), overruled on other grounds by Jones v.
Bock, 549 U.S. 199, 215-17 (2007); see also,
e.g., Schmidt v. Navarro, 576 Fed.Appx. 897,
898-99 (11th Cir. 2014) (per curiam) (finding that district
court did not abuse its discretion in dismissing
prisoner's complaint without prejudice for failing to
disclose two previously dismissed federal actions on his
complaint form); Sears v. Haas, 509 Fed.Appx. 935,
935-36 (11th Cir. 2013) (per curiam) (affirming dismissal
without prejudice of prisoner's action where, in a
complaint signed under penalty of perjury, the inmate failed
to disclose a case filed just five months before and another
case dismissed years earlier for failure to state a claim);
Harris v. Warden, 498 Fed.Appx. 962, 964 (11th Cir.
2012) (per curiam) (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. Fla. Dep't of Corr., 491 Fed.Appx.
129, 131-32 (11th Cir. 2012) (per curiam) (affirming the
dismissal without prejudice of an inmate's action when he
avowed on the complaint form under the penalty of perjury
that he had never had an action dismissed prior to service
process, even though he had at least one), cert.
denied, 569 U.S. 960 (2013); Redmon v. Lake Cnty.
Sheriff's Office, 414 Fed.Appx. 221, 223, 225-26
(11th Cir. 2011) (per curiam) (affirming the dismissal
without prejudice of the inmate's action 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).
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 for the plaintiff's
failure to disclose prior lawsuits because the statute of
limitations had not expired and the complaint could be
re-filed). 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, Doe, 554 Fed.Appx. 835, 837
(11th Cir. 2014) (per curiam); Hines v. Thomas, 604
Fed.Appx. 796, 800 (11th Cir. 2015) (per curiam). 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. 1992), cert. denied, 506 U.S.
917 (1992); Ala. Code § 6-2-38(1).
present action, the complaint form asked Motes whether he had
filed any other lawsuits in state or federal court relating
to his imprisonment. (Doc. 1 at 3). Motes denied having filed
other lawsuits relating to his imprisonment. (Id. at
3; Doc. 1-1 at 2; Doc. 1-2 at 2). Motes then proceeded to
sign his complaint under penalty of perjury. (Doc. 1 at 7;
Doc. 1-1 at 6; Doc. 1-2 at 5).
screening Motes' complaint under 28 U.S.C. §
1915(e)(2)(B), the Court discovered in its examination of
PACER (Public Access to Court Electronic
Records) that Motes previously filed another action
relating to his imprisonment, of which he did not advise the
Court, namely, Motes v. Cochran, 1:19-cv-00037-JB-N,
(S.D. Ala. filed Dec. 10, 2018). In that § 1983 action,
brought approximately six months prior to the instant case,
Motes alleged that, while he was in disciplinary segregation
at Mobile County Metro Jail on November 25, 2018, a dangerous
state prisoner was placed in the cell with Motes and one
other inmate, that the state prisoner told the correctional
officer that he was going to try to kill Motes and the other
inmate, that Motes told the officer he feared for his life
and requested to be moved, that nothing was done, and that
Motes was then beaten by the state prisoner and had to be
taken to the emergency room. Id. at ECF No. 1. He
sought $500, 000 in “compensation damages.”
Id. That previously-filed action remains pending in
discovering and reviewing Motes' prior § 1983
prisoner action, the Court concludes that Motes did not
disclose his previous lawsuit or provide any information
about his prior action, although the complaint form in this
action expressly requests such information. (See
Doc. 1 at 3). It is thus clear that when Motes filed the
present complaint on June 3, 2019, he knowingly chose not to
list all his prior actions and then proceeded to sign his
complaint under penalty of perjury. (Id. at 7; Doc.
1-1 at 6; Doc. 1-2 at 5).
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, 2015
U.S. Dist. LEXIS 124946, at *9-10, 2015 WL 5546397, at *3
(N.D. Fla. Aug. 19, 2015). When the prisoner fails to provide
information about all of 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 time and resources. Doctor, 2015 U.S.
Dist. LEXIS 124946, at *10, 2015 WL 5546397, at *3.
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 reasonable under the circumstances . . . 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 for 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 (1991).
Motes was not truthful to the Court about his prior
litigation on his complaint form, his action is subject to
being dismissed as malicious for abuse of the judicial
process. The only reason the undersigned would not recommend
dismissing this action without prejudice is if the present
action could not be re-filed because the two-year statute of
limitations for § 1983 actions had expired.
examination of the complaint reflects that Motes names as
Defendants Trey Oliver III, the Warden at the Mobile County
Metro Jail, and Captain Stallworth, an officer at the jail.
(Doc. 1 at 5). Motes complains that “[b]etween the
dates of Feb. 27th, 2019 and April 27th, 2019, ”
Captain Stallworth expelled him from the Mobile County Metro
Jail's GED program because she accused Motes of telling
“the chaplain staff that [Motes was] being set up by
placing [Motes] in the class room with a female inmate while
being a sex offender” and that “the chapel staff
have it documented.” (Id. at 4). However,
Motes alleges that the chaplain told him there is no such
documentation. (Id.). Motes further alleges that he
sent a grievance about this matter to Warden Oliver on June
18 or 19, 2019, but that Warden Oliver failed to properly
investigate the matter. (Id. at 4-5). Motes also
appears to allege that Captain Stallworth defamed him during
the grievance procedure on June 18 or 19, 2019. (Id.
at 5). For relief, he requests $50, 000 in damages for mental
anguish, and to be allowed to return to the jail's GED
program if he is still incarcerated. (Id. at 7).
that the actions complained of are alleged to have occurred
in February 2019 at the earliest, Motes will be able to
re-file his action before the two-year statute of limitations
expires, if he elects to do so. Because this action can be