14-1284 

Dolberry v. Silvernail

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 9th day of July, two thousand fifteen. 

PRESENT: 

JON O. NEWMAN,

DENNIS JACOBS, 

REENA RAGGI,

Circuit Judges. 

_____________________________________ 

Andre Dolberry, 

Plaintiff-Appellant, 

v. 14-1284 (L); 

 14-2935 (Con) 

Correction Officer Silvernail, et al., 

Defendants-Appellees. 

_____________________________________ 

FOR PLAINTIFF-APPELLANT: Andre Dolberry, pro

 se, Dannemora, New 

 York. 

FOR DEFENDANTS-APPELLEES: Eric T. Schneiderman, 

Attorney General of 

the State of New 
York, Barbara D. 

Underwood, Solicitor 

General, Andrew 

Ayers, Martin B. 

Hotvet, Assistant 

Solicitors General, of 

Counsel, Albany, 

New York. 

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Hurd, J. ; Peebles, M.J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is VACATED AND REMANDED. 

Appellant Andre Dolberry, proceeding pro se, appeals the District Court=s judgment 

dismissing his 42 U.S.C. ' 1983 complaint as a sanction for misrepresenting his litigation history. 

We assume the parties= familiarity with the underlying facts, the procedural history of the case, and 

the issues on appeal. 

We review the District Court’s imposition of sanctions under Federal Rule of Civil 

Procedure 11 for abuse of discretion. See Muhammad v. Walmart Stores East, L.P., 732 F.3d 104, 

108 (2d Cir. 2013). However, when, as here, “the court issues sanctions sua sponte without 

offering the offender the opportunity to withdraw the offending submission, our review is more 

exacting than under the ordinary abuse-of-discretion standard.” Id. (internal quotation marks 

omitted). The court may impose sanctions sua sponte if it finds that a litigant acted in subjective 

bad faith. Id. A court’s determinations that a litigant made a false statement and that the 

statement was made in bad faith are findings of fact “that will not be disturbed unless clearly 

erroneous.” SEC v. Smith, 710 F.3d 87, 97 (2d Cir. 2013). 

Acting upon a Report and Recommendation (“R&R”) of the Magistrate Judge, the District 

Court (David Hurd, District Judge) dismissed Dolberry’s complaint because of “his material 
3 

misrepresentation to the court, under oath, that he has not brought any prior actions relating to his 

imprisonment.” The R&R listed seven cases that Dolberry had filed in district courts within this 

Circuit. See R&R at 11-12 n.8. On appeal, Dolberry does not deny that he answered “No” to the 

question on the form complaint asking “Have you begun any other lawsuits in federal court which 

relate to your imprisonment?” He contends, however, that for either of two reasons his “No” 

answer was not false. 

First, as he informed the District Court in opposition to the Defendants’ motion for 

summary judgment, he understood the question to ask whether he had filed other lawsuits “related 

to the reasons of his imprisonment.” Second, he states in his brief on appeal that because the 

question referred to imprisonment in the “singular,” he thought it inquired only about “the 

imprisonment one is recently lock [sic] up for.” 

 Viewing these contentions in isolation, a fact-finder might reasonably decline to credit 

them, although they are not fanciful. Concerned that the wording of the question might have 

appeared sufficiently ambiguous to a pro se litigant to have elicited a truthful “No” answer, we 

have examined the prior litigation questions and responses on the seven complaints enumerated in 

the R&R (No. 1, 98-CV-8572 (SDNY, filed Dec. 4, 1998); No. 2, 99-CV-1087 (SDNY, filed Feb. 

16, 1999); No. 3, 99-Civ-1088 (SDNY, filed Feb. 16, 1999); No. 4, 99-CV-2235 (SDNY, filed 

Mar. 25, 1999); No. 5, 99-Civ-5774 (SDNY, filed July 21, 1999); No. 6, 02-CV-6418 (WDNY, 

filed Aug. 6, 2002); No. 7, 06-CV-6452 (WDNY, filed Sept. 7, 2006)). Taking judicial notice of 

these publicly filed documents, see Global Network Communications, Inc. v. City of New York, 

458 F.3d 150, 157 (2d Cir. 2006), we note the following questions and Dolberry’s responses: 
4 

In four of the five lawsuits filed in the Southern District of New York (Nos. 1,2,4,and 5), 

Dolberry used a printed form that asked: “Have you begun other lawsuits in state or federal court 

dealing with the same facts involved in this action or otherwise relating to your imprisonment?” In 

Nos. 1, 4, and 5, he answered “Yes,” and in No. 2, he answered “No.” No. 3, also filed in the 

Southern District, and Nos. 6 and 7, filed in the Western District, were handwritten and contained 

no question or answer concerning prior litigation. 

The fact that Dolberry answered “Yes” three out of the four times that he was asked a 

question similar to the one to which he answered “No” in the pending litigation is persuasive 

evidence supporting his contention that he believed a “No” answer was truthful on the theory that 

the question inquired about the reasons for his imprisonment. Apparently he answered “Yes” in 

the prior lawsuits because the question asked not only about lawsuits “relating to your 

imprisonment” but also about “other lawsuits dealing with the same facts involved in this action.” 

Dolberry had filed such lawsuits and furnished details as required.1

 In light of his previous 

responses, it cannot fairly be said that his “No” answer to an arguably ambiguous question in the 

pending case supports a finding of subjective bad faith. 

Under these circumstances, the sua sponte dismissal of Dolberry’s pending lawsuit for 

what the Magistrate Judge and the District Court Judge thought was a false answer to the prior 

litigation question cannot stand. We note, however, that the Magistrate Judge recited additional 

reasons for recommending dismissal of the current lawsuit, see R&R at 16 n.13. We will 

therefore remand to the District Court to reconsider the matter in light of this Order and either 

document a sufficient basis for dismissal or turn directly to the Magistrate Judge’s alternative 

 1. There is arguable force to Dolberry’s point that he would be unlikely falsely to deny filing prior cases that 

could readily be located by checking his name in an electronic database of lawsuits. 
5 

recommendation to grant in part and deny in part the Defendants’ motion for summary judgment, 

see R&R at 47. 

Finally, we have taken the opportunity to examine the litigation history question on the 

form complaints for prisoners’ civil rights complaints under 42 U.S.C. § 1983 currently in use in 

five of the six districts of this Circuit, set forth in the margin,2 and note their differences and 

arguable ambiguity. If a question is intended to elicit the filing of prior lawsuits concerning 

alleged misconduct in prison, consideration might be given to including a phrase such as “lawsuits 

concerning anything that occurred while you have been incarcerated.” The Clerk is requested to 

send a copy of this Order to the Chief Judges of each District Court in this Circuit for their 

consideration and such action, if any, as they may deem appropriate with respect to the wording of 

relevant forms. 

Reversed and remanded for further proceedings. 

 FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk

 2. D. Conn.: “1. Have you begun lawsuits in state or federal court dealing with the same facts involved in 

this action? 2. If you have filed other lawsuits in this court in the last ten (10) years that are not related to the acts 

complained of in [section dealing with pending cause of action], please list them.” 

 E.D.N.Y.: “Have you begun other lawsuits in state or federal court dealing with the same facts involved in 

this action or otherwise relating to your imprisonment?” 

 N.D.N.Y.: “Have you ever filed any other lawsuits in any state and [sic] federal court relating to your 

imprisonment?” 

 S.D.N.Y.: “A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in 

this action? C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?” 

 W.D.N.Y.: “A. Have you begun any other lawsuits in state or federal court dealing with the same facts 

involved in this action? B. Have you begun any other lawsuits in federal court which relate to your 

imprisonment?” 

 D.Vt. has no printed form.