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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHAEL JEROME LITTLE,

Plaintiff,

vs. Case No. 3:10cv117/MCR/EMT

R. TIFFT, WARDEN, et al.,

Defendants.

_________________________________/

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se, initiated this action by filing a letter directed to the

Honorable Judge Brown in the United States District Court for the Southern District of Florida,

requesting that he be released from close management custody (Doc. 1). Plaintiff subsequently filed

a motion seeking an order directing the Secretary of the Department of Corrections (DOC) to release

him from close management and compensate him for the allegedly unlawful confinement (Doc. 3). 

The Southern District characterized the case as a habeas corpus action under 28 U.S.C. § 2241 and

transferred it to the Northern District, since Plaintiff was incarcerated in this district (Docs. 13, 15).

Upon review of Plaintiff’s filings, the undersigned determined that this case was properly

characterized as a civil rights action under 42 U.S.C. § 1983, since Plaintiff claimed that several

employees of the DOC violated his due process rights by maintaining him on close management,

and he sought injunctive relief and monetary damages for the allegedly unconstitutional conduct (see

Doc. 17). The court directed Plaintiff to file his complaint on the court-approved form for use in

§ 1983 actions, which Plaintiff has now done (Doc. 18). The court also granted Plaintiff leave to

proceed in forma pauperis (Doc. 21).1 In the amended complaint, Plaintiff names five (5)

Defendants (see id. at 1, 8).2

 He alleges Defendants have never permitted him to be present during

1

 After Plaintiff initiated this action in the Southern District, he filed a habeas petition in the Southern District

seeking expungement of approximately forty-five (45) disciplinary reports from this inmate record and restoration of

4,000 days of gain time. Little v. McNeil, Case No. 09-23633, Petition (S.D. Fla. Dec. 4, 2009). The Southern District

transferred the habeas action to the Northern District. Little v. McNeil, Case No. 3:10cv213RV/EMT, Notice of Transfer

(June 16, 2010).

2

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.
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reviews of his close management custody status (id. at 6–7). He additionally alleges he has been

“gassed” on numerous occasions, cut and stabbed, and his food was taken (id. at 7). He also states

his gain time has been taken (id.). Plaintiff states Defendants’ conduct has caused him

“psychological depression, mental stress, pyhsical [sic] deteration [sic], aytphical [sic] hardship”

(id.). He claims that his continued placement on close management custody status constitutes cruel

and unusual punishment and violates his rights to due process and equal protection (id. at 6–9). As

relief, he seeks release from close management, restoration of gain time, and damages in the amount

of $400,000.00 from each Defendant (id. at 9). He also requests that the court serve the complaint

upon Defendants and have them arrested (id. at 8).

Because Plaintiff is proceeding in forma pauperis, the court must review the complaint and

dismiss it if satisfied that the action (1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or (2) seeks monetary relief against a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2)(B). Upon review of the complaint, it appears that this case should

be dismissed as malicious. 

Section IV of the complaint form requires Plaintiff to disclose information regarding prior

civil cases he filed in state and federal court (see Doc. 1 at 5–6). Question C of Section IV asks,

“Have you initiated other actions (besides those listed above in Questions (A) and (B)) in either

state or federal court that relate to the fact or manner of your incarceration (including habeas

corpus petitions) or the conditions of your confinement (including civil rights complaints about any

aspect of prison life, whether it be general circumstances or a particular episode, and whether it

involved excessive force or some other wrong)?” (id. at 6).3

 Where there is a parenthetical area to

mark either a “Yes” or “No” answer to this question, Plaintiff marked “Yes,” and then disclosed

Little v. Ellis, Case No. 3:07cv464/MCR/MD (N.D. Fla. Jan. 4, 2008), a civil rights case filed in the

Northern District which was dismissed as malicious, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), for

Plaintiff’s abuse of the judicial process in failing to disclose two federal cases he previously filed

(see Doc. 18 at 4). Plaintiff also disclosed Little v. McNeil, Case No. 09-23633 (S.D. Fla. Dec. 4,

2009), the habeas action referenced in note 1, supra, which the Southern District transferred to the

Northern District (see Doc. 18 at 5). After disclosing this case, Plaintiff wrote, “I can’t quite

remember any others” (id.). Thus, Plaintiff in effect stated that, according to his memory, he has

never initiated any actions in either state or federal court that related to the fact or manner of his

incarceration or the conditions of his confinement except the afore-described cases.

3

 In answer to Question A of the complaint form, Plaintiff listed a case he filed in the Circuit Court in and for

Leon County, Florida, Case No. PC-95-04817 (Doc. 18 at 3). In answer to Question B, Plaintiff listed the case number

assigned to the instant case by the Southern District when it was originally filed in that court, Case No. 09cv22930 (id.).

Case No.: 3:10cv117/MCR/EMT
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Question D of Section IV of the complaint form asks, “Have you ever had any action in

federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service? If so,

identify each and every case so dismissed.” (Doc. 18 at 4). Where there is a parenthetical area to

mark either a “Yes” or “No” answer to this question, Plaintiff marked “No,” and wrote “Not yet”

(id.). Thus, Plaintiff in effect stated that he has never had any action in federal court dismissed as

frivolous, malicious, failing to state a claim, or prior to service.

At the end of the civil rights complaint form, Plaintiff signed his name after the following

statement on the form: “I DECLARE UNDER PENALTY OF PERJURY THAT THE

FOREGOING STATEMENTS OF FACT, INCLUDING ALL CONTINUATION PAGES,

ARE TRUE AND CORRECT” (Doc. 18 at 9).

As routinely recognized by this court, the information from Section IV of the form is useful

to the court in many ways:

. . . it allows efficient consideration of whether the prisoner is entitled to pursue the

current action under the “three strikes” provision of the Prison Litigation Reform

Act; it allows consideration of whether the action is related to, or otherwise should

be considered in conjunction with or by the same judge who presided over, another

action; it allows consideration of whether any ruling in the other action affects the

prisoner’s current case. All of these things are appropriately considered in

connection with the preliminary review of such a complaint under the Prison

Litigation Reform Act.

Spires v. Taylor, Order of Dismissal, Case No. 3:00cv249-RH (N.D. Fla. Oct. 27, 2000). Further,

since prisoner plaintiffs generally proceed pro se, the information helps the court determine their

litigation experience and familiarity with the legal terrain of the current action. The time spent

verifying the cases a plaintiff has filed but failed to identify, as well as the dispositions of those

cases, can be considerable.4

Upon review of the docket, the clerk of court has advised, and this court takes judicial notice,

that as of the date Plaintiff filed his complaint, he had previously filed at least one other civil rights

action in federal court that was dismissed as frivolous or for failure to state a claim. On January 13,

2003, Plaintiff, while incarcerated, initiated Little v. Carter, Case No. 3:03-cv-25-J-32HTS, a civil

rights action, in the United States District Court for the Middle District of Florida. The case was

dismissed as frivolous on March 24, 2003. Little v. Carter, Case No. 3:03-cv-25-J-32HTS (M.D.

4

 “[T]he task of counting strikes involves more than sophomoric arithmetic. Courts must search records of the

prisoner’s prior federal cases to determine whether judicial officers ‘on 3 or more prior occasions’ entered orders of

dismissals and, if so, whether the reason for the dismissals were frivolousness, mailciousness or failure to state a claim

upon which relief may be granted.” Rivera v. Allin, 144 F.3d 719, 726 (11th Cir. 1998) (citing 28 U.S.C.A. § 1915(g)),

abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

Case No.: 3:10cv117/MCR/EMT
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Fla. Mar. 24, 2003). This case may be positively identified as having been filed by Plaintiff because

it bears his inmate number, DC#047123. Plaintiff did not disclose this case in the instant complaint.

The court has authority to control and manage matters such as this pending before it, and

Plaintiff’s pro se status does not excuse him from conforming to acceptable standards in approaching

the court. If the court cannot rely on the statements or responses made by the parties, the quality of

justice is threatened. The court will not tolerate false responses or statements in any pleading or

motion filed before it. Here, Plaintiff falsely responded to questions on the complaint form, as

detailed above. Plaintiff knew, or from reading the complaint form should have known, that

disclosure of his prior actions was required and that dismissal of the action may result from his

untruthful answers.5 If Plaintiff suffered no penalty for his incomplete and thus untruthful responses,

there would be little or no disincentive for his attempt to evade or undermine the purpose of the

form. Furthermore, if word spread around the prisons that the questions on the complaint form could

be circumvented in such a manner, the court might be confronted with widespread abuse from its

many prisoner litigants. Therefore, this court should not allow Plaintiff’s false responses to go

unpunished.

The court recommends that an appropriate sanction for Plaintiff’s abuse of the judicial

process in not providing the court with true factual statements or responses is to dismiss this cause

without prejudice.

6

 See, e.g., Hanson v. McCaul, No. 4:09cv126-SPM/WCS, 2009 WL 3010481,

at **1–2 (N.D. Fla. Sept. 16, 2009) (dismissing case without prejudice for prisoner plaintiff’s failure

to disclose two federal cases (both of which were previously dismissed for failure to comply with

court orders) on complaint form which required prisoner litigants to list all other cases that plaintiff

had previously initiated in state and federal court); Thomas v. Ammons, No. CV409-139, 2009 WL

5174109, at **1–3 (S.D. Ga. Dec. 23, 2009) (dismissing case without prejudice for prisoner

plaintiff’s failure to disclose four federal cases (two of which were previously dismissed for failure

to comply with court orders and the other two were previously voluntarily dismissed by plaintiff)

on complaint form which demanded litigation information regarding “any lawsuits brought in federal

court . . .”). Plaintiff should also be warned that such false responses, filed herein or filed in the

5

 Indeed, section IV of the complaint form includes the following notice: “FAILURE TO DISCLOSE ALL

PRIOR CIVIL CASES MAY RESULT IN THE DISMISSAL OF THIS CASE. IF YOU ARE UNSURE OF ANY

PRIOR CASES YOU HAVE FILED, THAT FACT MUST BE DISCLOSED AS WELL.” (see Doc. 18 at 3) (emphasis

and capitalization in original).

6

 While dismissal with prejudice may be too severe a sanction for abuse of process in this case, see, e.g., 

Williams v. Brown, 347 Fed. Appx. 429, 434, 2009 WL 2883496, at **3 (11th Cir. 2009), dismissal without prejudice

is a lesser sanction not too severe under these circumstances, since Plaintiff is free to re-file if he so chooses. See Spires, No. 3:00cv249-RH, Order of Dismissal (N.D. Fla. Oct. 27, 2000).

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future, will not be ignored and may result in more severe and long-term sanctions. See Warren v.

Guelker, 29 F.3d 1386, 1389 (9th Cir. 1994) (per curiam) (pro se, in forma pauperis prisoner’s

misrepresentation about previous lawsuits may violate Rule 11).

Accordingly, it is respectfully RECOMMENDED:

That this action be DISMISSED WITHOUT PREJUDICE as malicious, pursuant to 28

U.S.C. § 1915(e)(2)(B)(i), for Plaintiff’s abuse of the judicial process.

At Pensacola, Florida, this 1st day of July 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon all other parties. Failure to object may limit the scope of appellate review of

factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

Case No.: 3:10cv117/MCR/EMT