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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ALVIN C. THOMPSON,

 Plaintiff,

vs. Case No. 3:10cv74/MCR/CJK

R. QUINN, et al., 

 Defendants.

__________________________________________________________________

REPORT AND RECOMMENDATION

This prisoner civil rights case is before the court upon several motions (docs.

58, 68, 79, 80), all pertaining to the issue of whether plaintiff’s second amended

complaint should be dismissed as malicious for plaintiff’s failure to disclose his

litigation history asrequired by the court-issued prisoner civil rights complaint form. 

Having conducted a careful review of the record and the arguments presented, the

court concludes that plaintiff abused the judicial process by failing to disclose his

litigation history, and that an appropriate sanction for plaintiff’s misconduct is

dismissal of this case without prejudice.

PROCEDURAL HISTORY

Plaintiff initiated this case on January 5, 2010, by filing a letter in the United

States District Court for the Middle District of Florida (“Middle District”). (Doc. 1). 

The Middle District construed the letter as a civil rights complaint, and transferred

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the case to this court on January 26, 2010. (Doc. 5). On April 26, 2010, plaintiff

filed an amended complaint on the court-issued prisoner civil rights complaint form. 

(Doc. 11). The two named defendants, defendants Byrd and Quinn, were served and

filed an answer. (Doc. 39). On July 18, 2011, the court granted plaintiff’s motion to

to amend to add an additional defendant. (Doc. 53). Plaintiff’s second amended

complaint, dated June 24, 2011, took effect on July 18, 2011. (Doc. 54). Three days

later, defendants Byrd and Quinn moved to dismiss the second amended complaint

as malicious under 28 U.S.C. § 1915(e)(2)(B)(i), for plaintiff’s abuse of the judicial

process in failing to disclose his litigation history. (Doc. 58). Plaintiff responded

(doc. 67) and filed a separate motion (doc. 68) requesting that defendants’ motion be

dismissed and that plaintiff be granted leave to amend to disclose plaintiff’s prior

litigation history and to clarify that the suit is against the defendants individually. 

Plaintiff attached to his motion a proposed third amended complaint. (Doc. 69). 

Defendants responded in opposition to plaintiff’s motion. (Doc. 71). Plaintiff later 

filed a document titled, “Plaintiff’s Response in Opposition to Defendants’

Opposition to Plaintiff’s Motion to Dismiss Defendants’ Motion for Sanctions.” 

(Doc. 78). Defendants moved to strike that filing. (Doc. 79). Just today, plaintiff

filed an amended motion to dismiss defendants’ motion to dismiss, and for leave to

amend (doc. 80), with a proposed fourth amended complaint (doc. 81).

 PLAINTIFF’S RESPONSES TO QUESTIONS ON THE COMPLAINT FORM

DIRECTING DISCLOSURE OF PLAINTIFF’S LITIGATION HISTORY

Plaintifffiled his first and second amended complaints on the court-issued civil

rights complaint form. (Docs. 11, 54). The complaint form has a section entitled

“Previous Lawsuits,” where the prisoner-plaintiff is directed to list “all prior civil

cases.” (See Doc. 11, p. 3; Doc. 54, p. 3). The warning for violating the order

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appears in bold, capitalized font: “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.” (Doc. 11, p. 3; Doc. 54, p. 3). The complaint form directs

the prisoner-plaintiff to answer the following four questions:

(A) “Have you initiated other actions in state court dealing with the same

or similar facts/issues involved in this action?”

(B) “Have you initiated other actionsin federal court dealing with the same

or similar facts/issues involved in this action?”

(C) “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)?” 

(D) “Have you ever had any actions in federal court dismissed as frivolous,

malicious, failing to state a claim, or prior to service?”

(Doc. 11, pp. 3-4; Doc. 54, pp. 3-4) (emphases in original). Following each question

are parenthetical areas to mark either a “Yes” or “No” answer to that question. The

complaint form then directs the prisoner to describe each action, attaching additional

pages if necessary. 

Plaintiff’s first and second amended complaints provide the same responses to

Questions A, B and D. (Doc. 11, pp. 3-4; Doc. 54, pp. 3-4). Plaintiff responded “No”

to each question and disclosed no cases. (Id.). Plaintiff’s responses to Question C

were different. Plaintiff’s first amended complaint marked “Yes” in response to

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Question C, and disclosed one case – a federal habeas action plaintiff filed in 2010. 

(Doc. 11, p. 4). Plaintiff’s second amended complaint did not disclose that case. 

Plaintiff instead marked “No” in the relevant parenthetical area. (Doc. 54, p. 4). 

Plaintiff certified the accuracy of his first and second amended complaints by signing

each of them after the following statement: “I declare under penalty of perjury that

the foregoing statements of fact, including all continuation pages, are true and

correct.” (Doc. 11, p. 9; Doc. 54, p. 9). 

PLAINTIFF’S LITIGATION HISTORY

Plaintiff’s Federal Litigation

The following facts are undisputed. Plaintiff, in between the filing of his first

and second amended complaints, initiated a new civil rights action in this court. On

October 7, 2010, plaintiff filed Thompson v. Butler, Case No. 3:10cv409/MCR/MD,

in which plaintiff complained that prison officials deprived him of his personal

property without due process. (Doc. 58, Ex. C; see also Case No. 3:10cv409, Doc.

1). The case was dismissed on December 8, 2010, prior to service, under 28 U.S.C.

§ 1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim. (Id., see also Case No.

3:10cv409, Docs. 9, 10). Plaintiff filed a post-judgment motion, which was denied

on January 7, 2011. (Id., see also Case No. 3:10cv409, Doc. 15). Plaintiff did not

disclose Case No. 3:10cv409 in his second amended complaint signed on June 24,

2011, even though Questions (C) and (D) required disclosure. 

Plaintiff’s State Litigation

The following facts are also undisputed. Plaintiff, at the time he signed and

filed his first amended complaint on the court-issued form, had initiated three actions

in the Circuit Court for Leon County, Florida:

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(1) Alvin C. Thompson v. James McDonough,, Sec’y, FL Dep’t of

Corrections, Case No. 07-CA-2779, a mandamus action filed on

October 3, 2007.

(2) Alvin C. Thompson v. Walter A. McNeil, Sec’y FL Dep’t of Corrections,

Case No. 08-CA-3068, a mandamus action filed on September 16, 2008.

(3) Alvin C. Thompson v. Walter A. McNeil Sec’y FL Dep’t of Corrections,

Case No. 08-CA-3069, a mandamus action filed on September 16, 2008

and later transferred to the Santa Rosa County Circuit Court.

(Doc. 58, Ex. D). Plaintiff indicates in his proposed third and fourth amended

complaints that these actions challenged the validity of certain disciplinary

convictions. (Doc. 69, p. 5; Doc. 81, p. 5). Plaintiff did not disclose any of these

cases in his first or second amended complaint, even though Question (C) required

disclosure. 

Plaintiff initiated the following additional eight cases in the Leon County

Circuit Court after he submitted his first amended complaint to this court, but before

he signed his second amended complaint:

(1) Alvin C. Thompson v. Jeff Straley, FDOC Inmate Accounting, Case No.

10-CA-2329, a mandamus action filed on July 6, 2010.

(2) Alvin C. Thompson v. M. L. Deidrick, Dep’t of Corrections, Case No.

10-CA-2530, a mandamus action filed on July 22, 2010.

(3) Alvin C. Thompson v. Walter A. McNeil, Sec’y FL Dep’t of Corrections,

Case No. 10-CA-3913, a mandamus action filed on November 16, 2010.

(4) Alvin C. Thompson v. R. W. Romine, M. L. Deidrick, et al., Case No. 10-

CA-4109, a tort action filed on December 3, 2010.

(5) Alvin C. Thompson v. Walter A. McNeil, Sec’y FL Dep’t of Corrections,

Case No. 10-CA-4137, a tort action filed on December 8, 2010.

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(6) Alvin C. Thompson v. Dep’t of Corrections, Case No. 11-CA-1548, a

mandamus action filed on June 14, 2011.

(7) Alvin C. Thompson v. Dep’t of Corrections, Case No. 11-CA-1638, a

mandamus action filed on June 22, 2011.

(8) Alvin C. Thompson v. Dep’t of Corrections, Case No. 11-CA-1639, a

mandamus action filed on June 22, 2011.

(Doc. 58, Ex. D). Plaintiff indicates in his proposed third and fourth amended

complaints that these actions challenged, respectively: (1) an inmate accounting

issue, (2) a prison procedure, (3) a disciplinary conviction, (4) an “overturned DR,”

(5) an “overturned DR,” (6) a disciplinary conviction, (7) a disciplinary conviction,

and (8) a disciplinary conviction. (Doc. 69, pp. 5-7; Doc. 81, pp. 5-7). Plaintiff did

not disclose any of these cases on the second amended complaint formsigned on June

24, 2011, even though Question (C) required disclosure. 

Plaintiff also failed to disclose prior civil actions he filed in the Circuit Court

for Santa Rosa County, Florida. Plaintiff, at the time he signed his first amended

complaint, had previously initiated two civil actions in the Circuit Court for Santa

Rosa County, Florida:

(1) Alvin C. Thompson v. D. Ellis, Warden, Case No. 09-CA-1554, a

mandamus action filed on September 3, 2009.

(2) Alvin C. Thompson [v. Unnamed Defendant], Case No. 09-CA-1555 , a

tort action filed on September 3, 2009.

(Doc. 58, Ex. E). Plaintiff indicates in his proposed third and amended complaints

that these actions involved the loss of plaintiff’s property. (Doc. 69, p. 7; Doc. 81,

p. 7). Plaintiff did not disclose these state cases on the first or second amended

complaint forms, even though Question (C) required disclosure. In addition, plaintiff

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failed to disclose another civil action he filed in the Santa Rosa County Circuit Court

after he submitted his first amended complaint in this case, but before he signed his

second amended complaint: Alvin C. Thompson v. Correctional Officer L. Brock,

Case No. 10-CC-1774, a tort action plaintiff filed on November 17, 2010. (Doc. 58,

Ex. E; Doc. 69, p. 7). Plaintiff indicatesin his proposed amended complaints that this

action also involved the loss of plaintiff’s property. (Doc. 69, p. 7; Doc. 81, p. 7). 

Plaintiff did not disclose thisstate case on the second amended complaintformsigned

on June 24 ,2011, even though Question (C) required disclosure. 

ANALYSIS

Plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915. Section

1915(e)(2)(B) requires the court to dismiss this case at any time if it determines that

the action is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may

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

such relief.” 28 U.S.C. § 1915(e)(2)(B). 

Plaintiff’s conduct in this case constitutes an abuse of the judicial process and

is malicious. Plaintiff’s responses on the first and second amended complaint forms

stated, in effect, that plaintiff had initiated no other actions in state or federal court

relating to the fact or duration of plaintiff’s confinement or the conditions of his

confinement; and that plaintiff had never had any action in federal court dismissed

as frivolous, malicious, for failure to state a claim, or prior to service. Plaintiff’s

responses were false, as demonstrated above. Plaintiff knew from reading the

complaint form that disclosure of all prior actions was required. Plaintiff also knew

the consequences of disregarding the disclosure requirement. Plaintiff failed to

disclose not one, but several cases. All of the omitted cases were recent, at least at

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the time plaintiff was required to disclose them. Plaintiff, essentially ignored the

court’s disclosure requirements, made false omissions not once but twice, and

certified the complaints’ accuracy even though the complaints were incorrect. The

court will not tolerate false responses or statements in any pleading or motion filed

before it. If the court cannot rely on the statements or responses made by the parties,

it threatens the quality of justice. The court has the authority to control and manage

matters such as this pending before it, and plaintiff’s false responses should not go

unpunished. 

Plaintiff acknowledges that he did not truthfully complete the complaint forms

and that he failed to disclose at least15 casesthat were subject to disclosure. Plaintiff

explains:

It was not in any way plaintiff’s intended premedi[t]ated

intentions to deceive, manipulate and/or be malicious upon the court as

the defense triesto manipulate the mind(s) of this court from presuasion

[sic]. It was an act of carelessness by plaintiff nothing more, nothing

less and plaintiff does openly except [sic] that a strike is placed upon

him because a valuable lesson has been learned and plaintiff prays to be

forgiven by all.

(Doc. 67, p. 1; Doc. 68, pp. 1-2; see also Doc. 80, pp. 1-2). Plaintiff apparently

agrees that a sanction is appropriate, and further agrees that an appropriate sanction

isthe imposition of a “strike” under 28 U.S.C. § 1915(e)(2)(B). Plaintiff nonetheless

argues that the court should impose a strike without dismissing this case, and allow

plaintiff to cure his misconduct by filing his proposed fourth amended complaint. 

(Docs. 68, 80). 

What plaintiff describes as “carelessness” is, in fact, a complete disregard for

the court, the judicial process, the known consequences of non-disclosure, and the

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penalties of perjury (i.e., certifying the complaints’ accuracy even though the

complaints were incorrect). Plaintiff’s pro se status does not excuse him from

conforming to acceptable standards in approaching the court. 

Plaintiff’s suggestion that the court impose a “strike” without dismissing this

case is untenable. The “3 strikes” provision contained in § 1915(g), provides: “In no

event shall a prisoner bring a civil action or appeal a judgment in a civil action or

proceeding under this section if the prisoner has, on 3 or more prior occasions, while

incarcerated or detained in any facility, brought an action or appeal in a court of the

United Statesthat was dismissed on the grounds that it isfrivolous, malicious, or fails

to state a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (2011). The plain

language of the statute providesthat a strike isincurred only upon dismissal of a civil

action for one of the enumerated reasons. This case will not count as a “strike,”

unless it is dismissed. 

The undersigned believes that an appropriate sanction for plaintiff’s abuse of

the judicial process in not providing the court with true factual statements and

responses is to dismiss this case without prejudice as malicious. Such dismissal will

enable plaintiff to refile his complaint, with correct responses to the questions asked,

in a new civil rights case. See Moon v. Newsome, 863 F.2d 835, 837 (11 Cir. 1989)

th

(“While dismissal is an extraordinary remedy, dismissal upon disregard of an order,

especially where the litigant has been forewarned, generally is not an abuse of

discretion.”); see also, e.g., Redmon v. Lake Cnty. Sheriff’s Office, 414 F. App’x 221,

226 (11 Cir. 2011) (holding that district court did not abuse its discretion by th

dismissing prisoner’s amended civil rights complaint without prejudice for abuse of

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the judicial process, where prisoner’s amended complaint failed to disclose a federal

lawsuit the prisoner initiated after the filing of his initial complaint but prior to the

filing of his amended complaint); Shelton v. Rohrs, 406 F. App’x 340 (11 Cir. 2010)

th

(holding that district court did not abuse its discretion in dismissing prisoner’s case

without prejudice for abuse of the judicial process, where prisoner failed to disclose

four previous civil actions; rejecting prisoner’s argument that dismissal of complaint

without prejudice was improper because prisoner did not intend to mislead the court

and was simply unaware of the law); Pinson v. Grimes, 391 F. App’x 797, 799 (11

th

Cir. 2010) (holding that district court did not abuse its discretion in dismissing

prisoner’s case without prejudice for abuse of the judicial process, where prisoner

failed to disclose two federal cases). 

1

Accordingly, it is respectfully RECOMMENDED:

1. That defendants’ motion to dismiss (doc. 58) be GRANTED. 

2. That this cause 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.

3. That plaintiff’s “Motion to Dismiss Dismissal of Complaint by Defendants’

Undersigned Counsel with Leave of Court to Amend Complaint Disclosing Prior

Filings . . .” (doc. 68) be DENIED.

4. That plaintiff’s “Amended Motion to Dismiss Dismissal of Complaint by

Defendants’ Undersigned Counsel with Leave of Court to Amend Complaint

disclosing Prior Filings to Include Appeals” (doc. 80) be DENIED.

5. That defendants’ motion to strike (doc. 79) be DENIED.

The undersigned cites these unpublished cases only as persuasive authority and recognizes 1

that the opinions are not considered binding precedent. See 11 Cir. R. 36-2. th

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6. That all other pending motions be DENIED AS MOOT.

7. That the clerk be directed to close the file.

At Pensacola, Florida this 20 day of October, 2011.

th

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

fourteen 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, and does not

control. 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 (11 Cir. 1988). th

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