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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DOUGLAS HAROLD LOWERY, II,

 Plaintiff,

vs. Case No. 3:10cv204/WS/MD

ARMOR MEDICAL, et al., 

 Defendants.

______________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, a pre-trial detainee confined at the Santa Rosa County Jail,

commenced this civil rights action on June 7, 2010, by filing a complaint under 42

U.S.C. § 1983. (Doc. 1). Leave to proceed in forma pauperis was granted on June

28, 2010. (Doc. 4).

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). Upon review of the complaint, the undersigned concludes that this

case should be dismissed as malicious.

Plaintiff filed this action on June 7, 2010. His complaint concerns the

conditions of his confinement at the Santa Rosa County Jail, namely, the medical

department’s failure to provide adequate dental care. As relief, plaintiff seeks

$50,000 for pain and suffering, and mental anguish. (Doc. 1). 

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
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listed above in Questions (A) and (B)) in either state or federal court that relate to 1

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)?” Where there are

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

marked “No.” (Doc. 1, p. 4). The complaint form then directs the prisoner to

describe each action, attaching additional pages if necessary. Plaintiff disclosed no

cases. At the end of the civil rights complaint form, plaintiff signed his name after

the following statement: “I declare under penalty of perjury that the foregoing

statements of fact, including all continuation pages, are true and correct.” (Id., p. 8). 

Thus, plaintiff has in effect stated that he has initiated no other lawsuits in federal

court that related to the fact of his incarceration or the conditions of his

confinement.

This court does attempt to make, as a matter of course, 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 necessarily investigate the prior filings of a prisoner to 2

enforce the so-called “three strikes” provision. The time spent verifying the cases

Questions (A) and (B) asked plaintiff whether he had initiated other actions in state or federal

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court dealing with the same or similar facts/issues involved in the present action. Plaintiff answered

“No” to both questions, and disclosed no cases. (Doc. 1, p. 3).

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

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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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a plaintiff has filed but failed to identify, as well as the reasons for their dismissal

can be considerable. 

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The clerk has advised, and this court may take judicial notice, that at the time

plaintiff filed his complaint in this case, he had initiated one other civil action in this

court relating to the fact or manner of his incarceration. Specifically, on November

17, 2009, plaintiff, while incarcerated as a pre-trial detainee at the Santa Rosa County

Jail, filed a civil rights complaint under 42 U.S.C. § 1983 challenging his

incarceration on due process and speedy trial grounds, arguing that there had been

a length delay in the prosecution of his criminal case. See Lowery v. State of

Florida, 3:09cv514/RV/EMT. That action is still pending. This case may be positively

identified as having been filed by plaintiff, because it bears his Jail inmate number:

99004947. Plaintiff did not disclose this case in the instant complaint.

The court has the 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, 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

prior actions was required. If plaintiff suffered no penalty for his untruthful 4

responses, there would be little or no disincentive for his attempt to evade or

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

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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, maliciousness 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. § 1915(g)).

th

The complaint form expressly warns prisoners: “FAILURE TO DISCLOSE ALL PRIOR CIVIL

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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. 1, p. 3) (emphasis in

original).

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undermine the purpose of the form. Therefore, this court should not allow plaintiff’s

false responses to go unpunished. The undersigned 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. 

Plaintiff is warned that such false responses, filed herein or in the future, will

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

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

prisoner’s misrepresentation about previous lawsuits may violate Rule 11).

Accordingly, it is respectfully RECOMMENDED:

1. 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.

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

At Pensacola, Florida, this 19 day of November, 2010. th

 /s/ Miles Davis

MILES DAVIS

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

Case No: 3:10cv204/WS/MD