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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PERRY GENE VANDERFORD,

 Plaintiff,

vs. Case No. 3:10cv491/LC/CJK

WALTER A. MCNEIL, et al., 

 Defendants.

__________________________________________________________________

REPORT AND RECOMMENDATION

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

pauperis, has filed an amended civil rights complaint (doc. 19) under 42 U.S.C. §

1983, and a motion for temporary restraining order (“TRO”) (doc. 4). Upon review

of the complaint, the Magistrate Judge concludes this case should be dismissed as

malicious for plaintiff’s abuse of the judicial process. Whatever action is taken with

the complaint, the Magistrate Judge determines that the TRO motion should be

denied on its merits. 

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 an amended complaint on February 14, 2011,

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complaining about the conditions of his confinement while housed at Santa Rosa

Correctional Institution. (Doc. 19) Specifically, plaintiff claims defendants denied

him timely laundry service, and that he contracted staph infections as a result of

unhygienic clothes and bedding. (Doc. 19, 5-6) 

On page four of the civil rights complaint form, Section IV(D), 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

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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. 19, 4) The complaint form then asks a series of questions and

directs the prisoner to describe each action, attaching additional pages if necessary. 

Plaintiff did not answer these questions regarding his prior litigation history. (Doc.

19, 4) 

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 “Yes.” (Doc. 19, 4) The complaint form then directs the prisoner to describe

Questions (A) and (B) asked plaintiff whether he had initiated other actions 1

in state or federal court dealing with the same or similar facts/issues involved in the

present action. Plaintiff answered “No” to Question (A) and “Yes” to Question (B),

disclosing a federal court action he filed in 2008. (Doc. 19, 3)

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each action, attaching additional pages if necessary. Here, plaintiff disclosed that a

case filed in the United States District Court for the Southern District of Florida,

Vanderford v. McNeil, Case No. 2:08cv14207, had been dismissed in 2008 for failure

to state a claim upon which relief can be granted. (Doc. 19, 4) 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.” (Doc. 19, 7) Thus, plaintiff has in effect

stated that he has initiated no other lawsuits in federal court relating to the conditions

of his confinement, and, save for the foregoing case, 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 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, the court must necessarily investigate the prior filings of a

prisoner to enforce the so-called “three strikes” provision. See 28 U.S.C. § 1915(g).2

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 strikesinvolves more than sophomoric arithmetic. 

Courts must search records of the prisoner’s prior federal cases to determine whether

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

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occasions, while 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.”

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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), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 

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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 one other civil action in federal

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

Vanderford v. McNeil, et al., Case No. 3:10cv469, in this district. The case was filed

on November 12, 2010, and dismissed prior to service on January 3, 2011, for “failure

to state a claim due to plaintiff’s failure to exhaust his administrative remedies prior

to filing suit.” Plaintiff did not disclose this case, which complains of prison

conditions, in the instant complaint. Plaintiff was also untruthful about whether he

has had any federal actions dismissed prior to service. The foregoing case may be

positively identified as having been filed by plaintiff because it bears his Florida

Department of Corrections inmate number, DC#094673.

The undersigned observesthat plaintiff, on page five ofthe amended complaint

form, under the “Statement of Facts” heading, does direct the court’s attention to

Vanderford v. McNeil, et al., Case No. 3:10cv469. (Doc. 19, 5) Plaintiff, however,

does not mention that the case was dismissed prior to service, and, in direct

contradiction to the dismissal order, states that he had exhausted his administrative

remedies in connection with that case. (Doc. 19, 5) I am neither willing nor able to

infer fromthis disclosure, made in response to a completely different inquiry, that the

case related to the fact or manner of plaintiff’s incarceration. This sort of camouflage

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simply hinders an efficient and accurate investigation into whether the litigant has

truthfully completed the civil rights complaint form. 

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. 19,

3) 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. 

This court must 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. th

1994) (per curiam) (holding pro se, in forma pauperis prisoner’s misrepresentation

about previous lawsuits may violate Rule 11).

Assuming arguendo plaintiff had disclosed his prior litigation history as

directed, I address the pending motion for TRO on its merits. The decision to grant

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or deny a motion for TRO rests within the discretion of the district court. See Redford

v. Gwinnett Cnty. Jud. Cir., 350 F. App’x 341, 346 (11 Cir. 2009). “To be entitled th

to a TRO, a movant must show: (1) a substantial likelihood of ultimate success on the

merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened

injury outweighs the harmthe TRO would inflict on the non-movant; and (4) the TRO

would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11 Cir. 1995). th

“The first of the four prerequisites to temporary injunctive relief is generally the most

important.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1232 (11th Cir.

2005). Significantly, a TRO or “preliminary injunction is an extraordinary and drastic

remedy not to be granted unlessthe movant ‘clearly carries the burden of persuasion’

as to the four prerequisites.” See United States v. Jefferson Cnty., 720 F.2d 1511,

1519 (11 Cir. 1983) (quoting Canal Auth. v. Callaway, 489 F.2d 567 (5 Cir. 1974)). th th

“‘The burden of persuasion in all of the four requirements is at all times upon the

plaintiff.’” Id. (quoting Callaway, 489 F.2d at 573).

“The purpose of a temporary restraining order, like a preliminary injunction,

is to protect against irreparable injury and preserve the status quo until the district

court renders a meaningful decision on the merits.” Schiavo, 403 F.3d 1231. “Thus,

a party moving for a preliminary injunction must necessarily establish a relationship

between the injury claimed in the party’s motion and the conduct asserted in the

complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8 Cir. 1994). Moreover, the

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persons from whom injunctive relief is sought must be parties to the underlying

action. See Infant Formula Antitrust Litig., MDL 878 v. Abbott Labs., 72 F.3d 842,

842-43 (11 Cir. 1995) (affirming denial of motion for preliminary injunctive relief

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against non-parties for lack of subject matter jurisdiction).

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Even the most searching review of the present motion for TRO discloses little

in the way of plaintiff’s particular concerns; the single most cogent articulation of

possible injury asserts merely, “Abusing and neglecting – depriving Plaintiff his

needs of safety and health requirements of Close Management – Maximum Security

Segregation Confinement conditions for Plaintiffs [sic]Rights with Mental illnesses.” 

(Doc. 4, 2) Legally speaking, plaintiff vaguely alleges cruel and unusual punishment

violations asthe basis for infringementsto his rights under the Eighth and Fourteenth

Amendments to the United States Constitution. (Doc. 4, 2) Plaintiff requests

temporary injunctive relief, but does not specify the ills against which he seeks the

injunctive remedy. (Doc. 4, 3) From the attached inmate grievance, however, I am

able to glean that plaintiff accuses unnamed laundry and security supervisors of

denying him clean clothes for a period of no fewer than 25 days. (Doc. 4, 7) As a

result, plaintiff suggests, he cannot “maintain proper health” and has suffered as yet

unidentified “emotional injuries.” (Doc. 4, 7) 

The Eighth Amendment to the United States Constitution states, “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishmentsinflicted.” “The ‘cruel and unusual punishments’ standard applies to the

conditions of a prisoner’s confinement.” Chandler v. Crosby, 379 F.3d 1278, 1288

(11 Cir. 2004). Though the Eighth Amendment “embodies broad and idealistic

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concepts of dignity, civilized standards, humanity, and decency[,]” Estelle v. Gamble,

429 U.S. 97, 102 (1976), “the Constitution does not mandate comfortable prisons.” 

Rhodes v. Chapman, 452 U.S. 337, 349 (1981). “If prison conditions are merely

‘restrictive and even harsh, they are part of the penalty that criminal offenders pay for

their offenses against society.’” Chandler, 379 F.3d at 1289 (quoting Rhodes, 452

U.S. at 347). “Generally speaking, prison conditions rise to the level of an Eighth

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Amendment violation only when they ‘involve the wanton and unnecessary infliction

of pain.’” Id. (quoting Rhodes, 452 U.S. at 347). 

Having examined the relevant Eighth Amendment precedent of this circuit, I

question seriously whether plaintiff alleges any prison condition or practice involving

“the wanton and unnecessary infliction of pain,” see Rhodes, 452 U.S. at 347, and

therefore whether his claim stands any “substantial likelihood of ultimate success on

the merits” see Ingram, 50 F.3d at 900. Assuming plaintiff’s complaints can reach

the high standard developed by “cruel and unusual punishment” case law, plaintiff

fails to enunciate what harm has befallen him or is likely to be visited on him in the

future. Also, plaintiff cannot establish with the clarity necessary to warrant a

temporary restraining order that such injunctive relief “is necessary to prevent

irreparable injury[.]” See id. (identifying the four elements a plaintiff must establish

to garner a TRO). In other words, plaintiff has failed by his motion for TRO to

implicate the very purpose of preliminary injunctive relief, which is “to protect

against irreparable injury.” See Schiavo, 403 F.3d at 1231. Nor am I satisfied that

plaintiff has clearly demonstrated “the threatened injury outweighs the harmthe TRO

would inflict on the non-movant” or that “the TRO would serve the public interest.” 

See Ingram, 50 F.3d at 900. Because plaintiff fails to satisfy no fewer than three of

the four prerequisites to temporary injunctive relief, the motion for TRO, if not moot

on dismissal of the amended complaint, is properly denied on its merits. 

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 all pending motions be DENIED as moot.

3. That the motion for temporary restraining order (doc. 4) be DENIED.

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

At Pensacola, Florida this 31st day of August, 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

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