Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GEORGE LYONS,

 Plaintiff,

vs. Case No. 5:10cv298/SPM/CJK

JACKSON CORRECTIONAL INSTITUTION, et al., 

 Defendants.

__________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Florida penal system proceeding pro se and in forma

pauperis, has filed a civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). Upon

review of the complaint, the court concludes this case should be dismissed as

malicious for plaintiff’s abuse of the judicial process.

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). Plaintiff filed this action on November 4, 2010, complaining about

the conditions of his confinement while housed at Jackson Correctional Institution. 

(Doc. 1). Specifically, plaintiff claims prison officials’ deprived him of his personal

property without due process, retaliated against him for filing a lawsuit, and denied

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 1 of 6
Page 2 of 6

him access to the courts. (Id., pp. 5-9). As relief, plaintiff seeks monetary damages

and injunctive relief. (Id., p. 9). 

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 the

1

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. 1, p. 4). The complaint form then directs the prisoner to

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

case, a state court action he filed in 2003 in the Circuit Court of Palm Beach County,

Florida. (Id.). He disclosed no other cases. 

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. 1, p. 4). The complaint form then directs the prisoner to

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

“NONE.” At the end of the civil rights complaint form, plaintiff signed his name

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

1

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

answered “Yes” to Question (A) and disclosed one case, a state court action he filed in 2008 in the

Circuit Court of Jackson County, Florida. (Doc. 1, p. 3). He disclosed no other cases.

Case No: 5:10cv298/SPM/CJK

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 2 of 6
Page 3 of 6

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 he has initiated no other lawsuits in federal

court relating to the conditions of his confinement, and he has never had any action

in federal court dismissed prior to service.

As a matter of course, this court attempts to make 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

2

necessarily investigate the prior filings of a prisoner to 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. As the

Eleventh Circuit explained: “[T]he task of counting strikes involves more than

sophomoric arithmetic. Courts must 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. §

th

1915(g)), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910,

166 L. Ed. 2d 798 (2007). 

Section 1915(g) provides that “if the prisoner has, on 3 or more prior occasions, while 2

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).

Case No: 5:10cv298/SPM/CJK

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 3 of 6
Page 4 of 6

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

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

federal court relating to the conditions of his confinement. While incarcerated,

plaintiff filed the following civil rights cases in the United States District Court for

the Southern District of Florida (“Southern District”):

• Lyons v. Trinity Service Group, Inc., Case Number 1:02cv23142, a §

1983 action plaintiff filed on October 24, 2002, raising racial

discrimination claims against the employees of a food services

contractor for Everglades Correctional Institution. The case was

dismissed (upon defendants’ motion for summary judgment) on August

17, 2005, for plaintiff’s failure to exhaust his administrative remedies. 

The dismissal was affirmed on appeal on September 18, 2006.

• Lyons v. Belle Glades Correctional Institution, Case Number

9:01cv8640, a § 1983 action plaintiff filed on July 10, 2001, alleging

unconstitutionalretaliation for plaintiff’s use ofthe GladesCorrectional

Institution grievance system, and denial of access to the courts. 

Summary judgment was entered in favor of the defendants on August 6,

2003. The judgment was affirmed on appeal on March 29, 2004.

• Lyons v. Manoucher, Case number 2:95cv14075, a § 1983 action

plaintiff filed on April 10, 1995, complaining about the care he received

by a doctor at Indian River Correctional Institution. The case was

dismissed (upon defendant’s motion to dismiss) on January 3, 1996, as

barred by the statute of limitations.

Plaintiff did not disclose these casesin the instant complaint. Plaintiff was also

untruthful about whether he had had any federal actions dismissed prior to service. 

On December 22, 1994, plaintiff, while incarcerated, filed a § 1983 suit in the

Southern District against the Key West Police Department. The case was dismissed

without prejudice, prior to service, on January 31, 1995. See Lyons v. Key West

Police Dep’t, Case Number 4:94cv10098. Plaintiff did not disclose that case. All of

Case No: 5:10cv298/SPM/CJK

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 4 of 6
Page 5 of 6

the foregoing cases may be positively identified as having been filed by plaintiff

because they bear his Florida Department of Corrections’ inmate number,

DC#820130. 

The court has the authority to control and manage matters such asthis 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 questions on the complaint form, as

detailed above. Plaintiff knew from reading the complaint form that disclosure of all

prior actions was required. The complaint form expressly warns prisoners:

“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.” (Doc. 1,

p. 3). If plaintiffsuffered 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. 

Therefore, this court should not allow plaintiff’s false responses to go unpunished. 

The undersigned recommendsthat 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).

Case No: 5:10cv298/SPM/CJK

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 5 of 6
Page 6 of 6

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 13th day of June, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

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: 5:10cv298/SPM/CJK

Case 5:10-cv-00298-RS-CJK Document 8 Filed 06/13/11 Page 6 of 6