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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RUSSELL T NEAL,

Plaintiff,

vs. Case No. 3:10cv309/MCR/CJK

OKALOOSA COUNTY SHERIFF, et al., 

Defendants.

__________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil

rights complaint under 42 U.S.C. § 1983. (Doc. 10). Upon review of the complaint,

the Court concludes that this case should be dismissed as malicious for plaintiff’s

abuse of the judicial process.

Plaintiff is an inmate of the Florida Department of Corrections presently

confined at Calhoun Correctional Institution. Plaintiff is suing various officials

associated, or formerly associated with the Okaloosa County Sheriff’s Office and

State Attorney’s office. (Doc. 10). Plaintiff is also suing his former attorney. (Doc.

10). Plaintiff claims that together they violated his constitutional rights through the

investigation, trial, and sentencing processes. As a result, these actions have left

plaintiff “erased fromsociety; financially bankrupt; businesses destroyed; [plaintiff’s]

finances taken without justification; [plaintiff’s] freedom forfeited; and his physical

health destroyed through violence by associates of the Defendant LaPee.” (Doc. 10,

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p. 29). As relief, plaintiff seeks vacation of all charges against him, monetary

damages and restitution, punitive damages, $1,000,000 per yearincarcerated, and any

and all other relief that this court deems justifiable. (Doc. 10). 

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the Court is required to

dismiss the 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 filed his amended complaint on November 9, 2010, the date

reflected on the institutional date-of-mailing stamp. (Doc. 10, p. 1). On page five of

the civil rights complaint form, Section IV(B) Previous Lawsuits, is the following

question: “Have you initiated other actions in federal court dealing with the same or

similar facts/issues involved in this action?” (Doc. 10, p. 6). Where there are

parenthetical areas to mark either a “Yes” or “No” answer to Question (B), plaintiff

marked “Yes.” (Doc. 10, p. 6). The complaint form then directs the prisoner to

describe each action, attaching additional pages if necessary. Plaintiff disclosed one

case: Neal v. Cassiday et al., Case Number 3:06cv8/RV/MD, a civil rights case

plaintiff filed in this Court on January 3, 2006.

On page four of the civil rights complaint form, Section IV(C), Previous

Lawsuits, is the following question: “Have you initiated other actions (besides those

listed above in Questions(A) and (B)) in either state or federal court that relate to the

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fact or manner of your incarceration (including habeas corpus petitions) or the

conditions of your confinement (including civil rights complaints about any aspect

Questions (A) asked plaintiff whether he had initiated other actions in state court dealing 1

with the same or similar facts/issues involved in the present action. Plaintiff answered “No” to

Question (A). (Doc. 10, p. 6).

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

whether it involved excessive force or some other wrong)?” (Doc. 10, p. 9). Where

there are parenthetical areas to mark either a “Yes” or “No” answer to Question (C),

plaintiff marked “Yes.” (Doc. 10, p. 9). The complaint form then directs the prisoner

to describe each action, attaching additional pages if necessary. Plaintiff disclosed

one state court case and the following federal cases: 3:09cv23 and 3:06cv17. Plaintiff

disclosed no other cases. 

At the end of the civil rights complaint form, plaintiffsigned his name after the

following statement: “Under penalties of perjury, I declare that I have read the

forgoing and the fact stated in it are true and correct.” (Doc. 10, p. 37). Thus,

plaintiff has in effectstated that he initiated no other lawsuits in federal court relating

to the conditions of his confinement.

As a matter of course, thisCourt attempts tomake an independent investigation

into whether or not litigants truthfully complete the civil rights complaint forms,

especially when a lack of candor in informing the Court of prior lawsuits may affect

the court’s jurisdiction. Further, in the light of 28 U.S.C. § 1915(g) , the Court must

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necessarily investigate the prior filings of a prisoner to enforce the so-called “three

strikes” provision. The time spent verifying the cases a plaintiff has filed but failed

to identify, as well as the reasons for their dismissal can be considerable. As the

Eleventh Circuit explained: “[T]he task of counting strikes involves more than

sophomoric arithmetic. Courts must search records of the prisoner’s prior federal

Section 1915(g) provides that “if the prisoner has, on 3 or more prior occasions, while 2

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

that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

relief may be granted,” the prisoner may not bring an action in forma pauperis unless he is “under

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

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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, maliciousness 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. §

1915(g)), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910,

166 L. Ed. 2d 798 (2007). 

The Clerk has advised and the Court may take judicial notice, that at the time

plaintiff filed his amended complaint on November 9, 2010, plaintiff had initiated at

least two other civil rights actions in this Court that he failed to disclose. On August

5, 2005 (the date reflected on the institutional mailing stamp), plaintiff initiated Neal

v. Cassiday et al., Case Number 3:05cv302/RV/EMT. There, plaintiff complained

of the conditions of his confinement at Walton Correctional Institution, claiming that

prison officialsretaliated against him and were deliberately abusive towards him. On

August 14, 2006, plaintiff initiated Neal v. Sheppard et al., Case Number

3:06cv04/LC/EMT. There, plaintiff complained ofthe conditions of his confinement

at Walton Correctional Institution, alleging inadequate and neglectful medical care.

Plaintiff disclosed neither of these cases in his original or amended complaint.

The Court has the authority to control and manage matterssuch asthis 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, it threatens the quality of justice. The

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

before it. Here, plaintiff falsely responded to a question on the complaint form, as

detailed above. Plaintiff knew from reading the complaint form that disclosure of all

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prior actions was required. The complaint form expressly warns prisoners:

“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. 10,

p. 5). If plaintiff suffered no penalty for his untruthful response, there would be little

or no disincentive for his attempt to evade or undermine the purpose of the form. 

Therefore, this Court should not allow plaintiff’s false response to go unpunished. 

The undersigned recommendsthat 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 case without prejudice. 

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE as malicious under

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

2. That the Clerk be directed to close the file.

At Pensacola, Florida this 24th day of September, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

Case No: 3:10cv309/MCR/CJK

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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 (11th Cir. 1988).

Case No: 3:10cv309/MCR/CJK

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