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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CORY T. PERRY,

Plaintiff,

vs. Case No. 5:10cv311/RH/EMT

WALTER McNEIL et al.,

Defendants.

________________________________/

REPORT AND RECOMMENDATION

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

under 42 U.S.C. § 1983 (Doc. 1). Leave to proceed in forma pauperis has been granted (Doc. 6).

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 4–5).1

 Question C of Section IV asks,

“Have you initiated other actions . . . in either state or federal court that relate to 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)?” (id. at 5). Where there is a parenthetical area to mark either a “yes” or “no” answer to this

1

 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.
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question, Plaintiff marked “yes” (id.). Plaintiff then disclosed Perry v. McNeil, Case No.

3:10cv281/MCR/EMT, filed in this Court on August 4, 2010. Question D of Section IV 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 “no.” 

Plaintiff thus stated that he has not initiated any actions in either state or federal court that relate to

the fact or manner of his incarceration or the conditions of his confinement, except Perry v. McNeil,

Case No. 3:10cv281/MCR/EMT; and he has not ever had any action in federal court dismissed as

frivolous, malicious, failing to state a claim, or prior to service. 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 CONTINUATION PAGES, ARE TRUE AND CORRECT.” (id. at 17). 

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 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.

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 the instant case, November 15, 2010 (see Doc. 1

at 17), he had previously filed Perry v. McClean, et al., Case No. 8:07cv828-JSM-MSS in the United

Case No. 5:10cv311/RH/EMT
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States District Court for the Middle District of Florida.2 Further review reveals that the case filed

in the Middle District related to the conditions of Plaintiff’s confinement and was dismissed prior

to service (see attached Order).3

 Plaintiff did not list Case No. 8:07cv828-JSM-MSS in Section IV

of his complaint, even though it qualified as a federal court action that was responsive to Questions

C and D, and thus should have been included in Plaintiff’s answer to either of those questions.

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 questions on the complaint form, as

detailed above. 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 answers.4

 If Plaintiff suffered no penalty for his untruthful responses, 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.

2

 According to the docket, the inmate number of the plaintiff in Perry v. McClean, 8:07cv828-JSM-MSS, that

is, Inmate #750737, is the same as Plaintiff’s (see Doc. 1 at 1).

3

 In Plaintiff’s initial complaint in Case No. 8:07cv828-JSM-MSS, he alleged he was denied necessary medical

care (see attached Order). Plaintiff subsequently amended his complaint to include claims of excessive force by

correctional officers and conspiracy (id.). The court determined that Plaintiff’s conspiracy claim was subject to

dismissal, pursuant to 28 U.S.C. § 1915A, because Plaintiff’s factual allegations were insufficient to support a claim (id.). 

The court dismissed Plaintiff’s remaining claims for improper venue (id.).

In the instant matter, Plaintiff likewise complains of the conditions of his confinement (the complaint alleges

correctional officers at Bay Correctional Institution mentally abused and harassed him, and supervisory officials failed

to protect him from this harm) (see Doc. 1).

4

 Indeed, section IV of the complaint form includes the following notice: “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.” (see Doc. 1 at 4) (emphasis

and capitalization in original).

Case No. 5:10cv311/RH/EMT
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The court 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.

5

 Plaintiff should also be warned that 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

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 as malicious, pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).

At Pensacola, Florida, this 7th day of January 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) 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 (11th Cir.

1988).

5

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

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

Case No. 5:10cv311/RH/EMT