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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GARY C. QUILLING,

Plaintiff,

vs. Case No. 4:10cv404-WS/CAS

DAVID W. CLARK, Inspector,

JOSE COLON, Captain,

CAPTAIN PICKLES,

JEFFREY HASTY, Sergeant,

ROBERT HALL, Corrections Officer,

Defendants.

 /

SECOND REPORT AND RECOMMENDATION

Defendants Clark, Colon, and Hasty have filed a motion to dismiss. Doc. 89. 

The motion seeks dismissal of this case on the basis that Plaintiff failed to "truthfully

disclose [a] prior federal case . . . ." Id. This recommendation is made without awaiting

a response from Plaintiff.

Defendants contend that in Plaintiff's third amended complaint, doc. 38, which he

signed under penalty of perjury, Plaintiff failed to honestly disclose the status of a prior

case. Doc. 89. Plaintiff cited the case in this third amended complaint, listing it as case

1-10-cv-23789 which was filed in the Southern District and then noted it was transferred

to the Middle District and assigned case number 8-10cv-2681, and then transferred

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again to the Orlando Division, and assigned case number 6-10-1798. Doc. 38, at 4. 

Plaintiff said the case was truly "not a 'previous' action" because the original filing date

was October 20, 2010. Id. Defendants argue that is wrong because the third amended

complaint was filed on September 14, 2011. Doc. 38. Moreover, Defendants contend

that Plaintiff falsely indicated on the complaint form that the case was "still pending." 

Doc. 82, at 2. Defendants point out that after the case was transferred to Orlando, it

was dismissed because Plaintiff failed to comply with an order to file an amended

complaint, and Plaintiff's motion to alter or amend the judgment was denied on May 10,

2011. Id. Because the case was dismissed some four months prior to the date on

which Plaintiff filed the third amended complaint, Defendants argue that this "case

should be dismissed due to Plaintiff's dishonest representation." Id. 

There undoubtedly are appropriate cases which should be dismissed when a

prisoner fails to honestly and completely make disclosures about prior litigation. Such

instances are when a prisoner attempts to conceal disclosures which, if known, would

preclude granting in forma pauperis status under 28 U.S.C. § 1915(g). Such instances

are when a prisoner attempts to hide the fact that the same set of facts have already

been litigated and res judicata or collateral estoppel is at issue. Such instances may

also occur in a case where a prisoner has abused the judicial process. This however, is

not such a case.

It is true that Plaintiff filed the third amended complaint on September 14, 2011, a

date prior to the dismissal of case 6:10cv1798 in the Middle District of Florida. Yet

Plaintiff had not attempt to conceal the existence of the case; rather, he disclosed it and

detailed the subsequent transfers of the case, accurately listing all case numbers. 

Case No. 4:10cv404-WS/CAS

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Having simply stated that the case was still pending instead of dismissed is not so

egregious that it warrants dismissal. Plaintiff likely used prior versions of the complaint

filed in this case as a guide in submitting the third amended complaint and that could

account for the inadvertent error in stating it was still pending. Moreover, Plaintiff 

correctly disclosed that the Middle District case was not a "previous" case because,

technically at least, Plaintiff initiated this case on September 17, 2010, a month prior to

Plaintiff's having initiated the case in the Middle District on October 20, 2010. 

Nonetheless, it was properly identified for the Court.

To dismiss this case solely on the basis that Plaintiff stated a case was still

pending when it had been dismissed for failure to submit an amended complaint goes

too far. Plaintiff listed the case, in all its transferred forms, correctly listing the case

numbers. Plaintiff has not acted in bad faith to hide the case. The motion to dismiss,

doc. 89, should be denied and Defendants directed to file an answer to the third

amended complaint within ten days of the date the order adopting this report and

recommendation is entered.

In light of the foregoing, it is respectfully RECOMMENDED that Defendants'

motion to dismiss, doc. 89, be DENIED and Defendants directed to file an Answer to the

third amended complaint within ten days. It is further RECOMMENDED that this case

be REMANDED for further proceedings. 

IN CHAMBERS at Tallahassee, Florida, on April 23, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

Case No. 4:10cv404-WS/CAS

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv404-WS/CAS

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