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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KEVIN M. OWENS,

Plaintiff,

vs. Case No. 4:10cv252-SPM/WCS

WALTER McNEIL, et Al.,

Defendants.

 /

REPORT AND RECOMMENDATION

On August 19, 2010, Plaintiff's in forma pauperis motion was granted and he was

assessed an initial partial filing fee of $3.00. Doc. 8. Plaintiff has filed a motion for

reconsideration, doc. 10, noting that the order improperly calculated the fee based on

one year's worth of account statements, not just the six-month period of time. Having

reviewed the statements again, Plaintiff is correct. Plaintiff should be permitted to

proceed without payment of the assessed initial partial filing fee because the calculation

was not based on the last six months. 

I have concluded that Plaintiff should be able to proceed without payment of the

assessed initial partial filing fee, which brings me to review of the complaint, doc. 1, for
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the first time. I was concerned with Plaintiff's acknowledgments of his prior litigation in

answer to questions on the complaint form. Plaintiff responds to each of the questions

about his prior cases by stating, "I am unsure of" the requested information "without

legal material to answer facts" or is unsure of "cases do [sic] to staff taking legal

property." Doc. 1, p. 6. Plaintiff did, however, indicate he previously filed a case or

cases in the Middle District of Florida, Tampa Division. Id. 

It is Plaintiff's responsibility to obtain the information he needs to respond to the

necessary questions on the complaint form. If Plaintiff has had more than three cases

dismissed as "strikes" under 28 U.S.C. § 1915(e), then Plaintiff is barred from

proceeding with in forma pauperis status. 28 U.S.C. § 1915(g). It is not this Court's

responsibility to keep up with Plaintiff's cases, nor should the Court have to waste time

in researching facts that Plaintiff should know and is, in fact, required to provide. It is,

however, apparent that Plaintiff's listing was intentional so as not to disclose the number

of cases he filed previously, or admit the cases which were dismissed for reasons that

the complaint failed to state a claim, was malicious or frivolous, or sought relief against

a Defendant who was immune. 28 U.S.C. § 1915(e). This case could therefore be

dismissed solely on Plaintiff's failure to honestly disclose all prior cases he has filed. 

Indeed, Plaintiff already had a case dismissed on those grounds in the Middle District of

Florida, Tampa Division. Case 8:08cv422-SCB-MAP was dismissed in an order dated

March 6, 2008, because Plaintiff did not truthfully list all cases he had filed. Plaintiff

then filed a motion to reconsider that dismissal, which was granted in the sense that

Plaintiff's dismissal was reviewed, but the dismissal remained and this case closed

without prejudice to Plaintiff's filing a new lawsuit, in which he would acknowledge all

Case No. 4:10cv252-SPM/WCS
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prior cases. Doc. 8 of case 8:08cv422-SCB-MAP.1 That dismissal is an abuse of the

judicial process and properly counted as a strike under § 1915(g).2 

Plaintiff's attention is directed to Case 8:09cv1336-VMC-MAP, a civil rights case

Plaintiff filed, and which was dismissed prior to service on July 22, 2009. That case,

which was filed in the Middle District of Florida, provides Plaintiff with a list of other

cases he filed. In February, 2010, Plaintiff's appeal of that dismissed was dismissed,

and his motion to proceed in forma pauperis on appeal was denied upon a finding that

the appeal was frivolous. Doc. 16, of case 8:09cv1336. That case sufficiently

demonstrates Plaintiff has three strikes, two strikes issued in that case alone, and

means Plaintiff is precluded from proceeding with in forma pauperis status in this case. 

Plaintiff must submit the full amount of the filing fee for this case to proceed.

Should Plaintiff decide to refile this case, he should avail himself of the

opportunity to list all his prior cases with the accounting given to him by the Middle

District. Plaintiff must make full and complete disclosure of his cases, and his failure to

do so honestly may result in additional sanctions. 

1

 That case was filed by Plaintiff Kevin Owens prior to state incarceration, but is

undoubtedly the same person as this Plaintiff, because that case number was included

in case 8:09cv1336 which is indisputably the Plaintiff who brought this case.

2

 In Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998)(stating that "[a] claim that

fails to allege the requisite exhaustion of remedies is tantamount to one that fails to

state a claim upon which relief may be granted."), the court concluded that a strike may

also be imposed when a prisoner fails to truthfully and/or completely disclose prior

lawsuits. Rivera, 144 F.3d at 731. Abuse of the judicial process, whether or not

characterized by a court as "frivolous" or "malicious" is a strike for in forma pauperis

purposes under 28 U.S.C. § 1915(g). 144 F.3d at 731. Additionally, it matters not that

the case was dismissed "without prejudice." Id. 

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Accordingly, even though Plaintiff should not have been assessed an initial

partial filing fee, he is not entitled to in forma pauperis status. Therefore, his motion for

reconsideration should not be granted and he should not be permitted to proceed

without full payment of the filing fee for this case. 28 U.S.C. § 1915(g).

In light of the foregoing, it is respectfully RECOMMENDED that this case be

DISMISSED because Plaintiff is not entitled to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(g),3 and because Plaintiff intentionally failed to disclose his prior litigation,

and as a sanction for failing to make that disclosure, the order which granted Plaintiff's

motion for in forma pauperis status, doc. 8, should remain making Plaintiff liable for the

filing fee for this case. It is further RECOMMENDED that all other pending motions in

this case be DENIED in light of this dismissal. 

IN CHAMBERS at Tallahassee, Florida, on September 16, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

3

 Having reviewed Plaintiff's claims in the complaint, doc. 1, I have determined

that Plaintiff does not fall within the exception for imminent serious physical injury as

provided for in 28 U.S.C. § 1915(g).

Case No. 4:10cv252-SPM/WCS