Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CURTISS JEMISON

#P03564, 

 Plaintiff,

vs. Case No. 3:10cv266/MCR/EMT

CMDR. HEMPHILL, 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 by separate

order. 

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 5–6). Section IV(A), asks the following

question: “Have you initiated other actions in state court dealing with the same or similar

facts/issues involved in this action? Where there are parenthetical areas to mark either a “yes” or

“no” answer to this question, Plaintiff marked “no” (Complaint, p. 5). On the same page of the

complaint form in Section IV(B), Previous Lawsuits, is the following question: “Have you initiated

other actions in federal court dealing with the same or similar facts/issues involved in this action?” 
Page 2 of 5

Where there are parenthetical areas to mark either a “yes” or “no” answer to this question, plaintiff

marked “no.”

On page six of the civil rights complaint form, Section IV(C), Previous Lawsuits, is the

following question: “Have you initiated other actions (besides those listed in Questions (A) and (B))

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)?” Where there are parenthetical areas to

mark either a “yes” or “no” answer to this question, Plaintiff marked “no” (id., p. 6). On the same

page of the complaint form, Section IV(D), Previous Lawsuits, is the following question: “Have you

ever had any action 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 this

question, Plaintiff marked “no” (id.). 

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” (Doc. 1 at 8).

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

Case No: 3:10cv266/MCR/EMT
Page 3 of 5

verifying the cases a plaintiff has filed but failed to identify, as well as the dispositions of those

cases, can be considerable.1

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, he had previously filed Jemison v. Cannady, Case

No. 5:05cv154/SPM/EMT in this district court.2

 This case was dismissed for Plaintiff’s failure to

comply with an order of the court on March 23, 2006 (see Case No. 5:05cv154/SPM/EMT, Docs.

13, 14, & 15). Plaintiff did not list this case in Section IV of his complaint (see Doc. 1 at 5–6), even

though it qualified as a federal court action that is responsive to both Question C and Question D

and should have been included in Plaintiff’s answers. Similarly, Plaintiff filed the case Jemison v.

Laminike, Case No. 1:99cv182/MMP/WCS, which was also dismissed for failure to comply with

an order of the court (see 1:99cv182/MMP/WCS, Docs. 7, 8 & 9). This case also should have been

listed in Section IV of the complaint form. 

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 a question 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.3

 If Plaintiff suffered no penalty for his incomplete and thus untruthful responses,

1

 “[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 (11th Cir. 1998) (citing 28 U.S.C.A. § 1915(g)),

abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). These searches

routinely encompass more than one jurisdiction.

2

 According to the docket, the inmate number of the plaintiff in Case No. 5:05cv154/SPM/EMT (#03564) is

the same as Plaintiff’s.

3

 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 5) (emphasis

and capitalization in original).

Case No: 3:10cv266/MCR/EMT
Page 4 of 5

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.

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.

4

 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 United

States v. Roberts, 308 F.3d 1147 (11th Cir. 2002) (inmate convicted of perjury for false statement

regarding prior filings that was made on pleading filed in federal court); 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 pursuant to 28 U.S.C. § 1915(e)(2)(B)

as malicious.

At Pensacola, Florida, this 28th day of July, 2010. 

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

4

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

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

Case No: 3:10cv266/MCR/EMT
Page 5 of 5

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. 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).

Case No: 3:10cv266/MCR/EMT