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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

 PENSACOLA DIVISION

DERRICK DEVON GRIFFIN,

Plaintiff,

vs. Case No. 3:10cv367/MCR/MD

WALTER A. McNEIL,

Defendant.

___________________________________/

REPORT AND RECOMMENDATION

Plaintiff, a prisoner proceeding pro se, initiated this action by filing a civil rights

complaint under 42 U.S.C. § 1983 and a motion to proceed in forma pauperis (Doc. 1 &

2). He was directed to refile his complaint and motion to proceed in forma pauperis on the

proper court forms, which he did, and leave to proceed in forma pauperis was granted by

separate order. (Doc. 7).

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 3–5). Question B of

Section IV asks, “Have you initiated other actions in federal court dealing with the same

or similar facts/issues involved in this action? (id. at 3). Where there is a parenthetical area

to mark either a “Yes” or “No” answer to this question, Plaintiff marked “No.”

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
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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 4). Where there is a parenthetical area to mark either a

“Yes” or “No” answer to this question, Plaintiff marked “No.”

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.” (id.). Where there is a

parenthetical area to mark either a “Yes” or “No” answer to this question, Plaintiff marked

“Yes,” and provided information about a single case filed in the Southern District of

Florida. 

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Thus, plaintiff has essentially stated that he has filed only one previous case in state

or federal court that relates to the fact or manner of his imprisonment. 

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 CONTINUATIONPAGES,

ARE TRUE AND CORRECT” (Doc. 1 at 7).

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

This court’s investigation reveals that plaintiff made a mistake in reporting the case number of this

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case. It was actually case 0:09cv61749.

Case No: 3:10cvv367/MCR/MD
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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.2

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, in addition to the instant case,

and the single case he reported from the Southern District of Florida, he had also filed

Case 0:08cv61904, Griffin v. Morgan in the Southern District of Florida. That case was

transferred to the Western District of Tennessee in March of 2009 where it was assigned

case 2:09cv2158 and was later dismissed due to plaintiff’s failure to serve the defendant. 

The appeal was dismissed on July 29, 2010 for want of prosecution. Plaintiff did not list

this case in Section IV of his complaint even though it qualified as a federal court action

that is responsive to Question D and should have been included in Plaintiff’s answer to that

question. 

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 a question on the complaint form, as detailed above. This is

not a single case from many years ago; the appeal was dismissed merely five months ago. 

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

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

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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 (11 Cir. 1998) (citing 28 U.S.C.A. § 1915(g)),

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

routinely encompass more than one jurisdiction.

Case No: 3:10cvv367/MCR/MD
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answers. If Plaintiff suffered no penalty for his incomplete and thus untruthful responses, 3

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 and complete factual statements or

responses is to dismiss this cause without prejudice. Plaintiff should also be warned that

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such false responses, filed herein or filed in the future, will not be ignored and may result

in more severe and long-term sanctions. See United States v. Roberts, 308 F.3d 1147

(11 Cir. 2002) (inmate convicted of perjury for false statement regarding prior filings that

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was made on pleading filed in federal court).; 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 pursuant to 28 U.S.C.

§ 1915(e)(2)(B) as malicious.

At Pensacola, Florida, this 30 day of November, 2010.

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 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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

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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. 1 at 3) (emphasis

and capitalization in original).

 Dismissal without prejudice is not too severe a sanction under these circumstances. Plaintiff is free to re-file

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if he so chooses. See Order of Dismissal, Spires, No. 3:00cv249-RH (N.D. Fla. Oct. 27, 2000).

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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. 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

Case No: 3:10cvv367/MCR/MD