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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LACARVIA DARNELL GAMBLE,

 Plaintiff,

vs. Case No. 3:10cv374/WS/MD

MR. HANNON, 

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 Defendant.

______________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Florida penal system proceeding pro se, has filed

an amended civil rights complaint pursuant to 42 U.S.C. § 1983 (doc. 8). Leave to

proceed in forma pauperis was granted (doc. 4), and the initial partial filing fee has

been paid (doc. 5).

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 amended complaint, the undersigned concludes

that this case should be dismissed as malicious.

Plaintiff filed this action on September 23, 2010. (Doc. 1, p. 1). His complaint

concerns the conditions of his confinement at Santa Rosa Correctional Institution,

The docket reflects the defendant named in plaintiff’s original complaint, Mr. Hannon. (Doc.

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1). Plaintiff’s amended complaint corrects the spelling of this defendant’s name to Hannalt, and adds

another defendant, Mr. Jones. (Doc. 8, p. 1).
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namely, Mr. Hannon’s failure to provide him with a “lacto ovo vegetarian diet” which

plaintiff requested due to his religion (Orthodox Sunni Muslim). 

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 2

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 “Yes.” (Doc. 8, p. 4). The complaint form then directs the prisoner to

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

only one case: Gamble v. Johnson, Case Number 3:98cv371/RV/SMN. 

On the same page of the complaint form, Section IV(D), Previous Lawsuits, is

the following question: “Have you ever had any actions in federal court dismissed

as frivolous, malicious, failing to state a claim, or prior to service?” Where there are

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

marked “No.” (Doc. 8, 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. 9). 

Thus, plaintiff has in effect stated that with the exception of Case Number 3:98cv371,

he has initiated no other lawsuits in federal court that related to the conditions of his

confinement, were dismissed prior to service, or were dismissed for failing to state

a claim.

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. 8, p. 3).

Case No: 3:10cv374/WS/MD
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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 3

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. 

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

plaintiff initiated this lawsuit he had initiated at least two other civil actions in federal

court relating to the conditions of his confinement, both of which were dismissed

prior to service and one for failing to state a claim. Specifically, on June 8, 2000,

plaintiff, while incarcerated, filed a civil rights complaint in this court claiming prison

officials at Santa Rosa CI used excessive force on him in violation of the Eighth

Amendment. The action, Gamble v. Johnson, Case Number 3:00cv233/LC/SMN, was

dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) on October 10, 2000, prior to service,

for failure to state a claim. Plaintiff did not disclose that case in his amended, or

original complaint. Nor did plaintiff disclose the following mandamus action he filed

in the United States District Court for the Middle District of Florida. On May 4, 2009,

plaintiff, while incarcerated, filed a petition for writ of mandamus in the Middle

District requesting that the court compel prison officials at Florida State Prison to

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).

“[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

Case No: 3:10cv374/WS/MD
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place him “on a Lacto-ovo-vegetarian diet due to his tenet as a Hebrew Israelite.” 

The action, Gamble v. Worthington, et al., Case Number 3:09cv402, was dismissed

on May 29, 2009, prior to service. The dismissal was without prejudice to plaintiff

initiating a civil rights case under 42 U.S.C. § 1983. Both of these cases may be

positively identified as having been filed by plaintiff because they bear his inmate

number, DC#M13274. 

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 two questions 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 5

responses, 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 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).

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. 8, p. 3) (emphasis in

original).

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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 24 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: 3:10cv374/WS/MD