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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MARTIN WARNER,

Plaintiff,

vs. Case No. 4:11cv20-SPM/WCS

SHERIFF LARRY CAMPBELL,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, and who was granted in forma pauperis,

docs. 2 and 4, filed a civil rights complaint under 42 U.S.C. § 1983. Doc. 1. The

assessed initial partial filing fee was paid on February 22, 2011, doc. 6, and the

complaint may now be reviewed pursuant to 28 U.S.C. § 1915A. 

In making that review, Plaintiff acknowledges having filed several other cases. 

Plaintiff states that he filed case number 4:99cv342, on September 3, 1999, and notes it

was dismissed on February 29, 2000, for "failure to comply with the court." Doc. 1, p. 3. 

 Plaintiff notes that case was dismissed prior to service. Id., at 4. He also notes that

case 4:99cv360 was dismissed on January 7, 2000, for failure to state a claim. Id., at 4. 
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Plaintiff has had to other cases dismissed "prior to service," but Plaintiff does not state

the actual reason for such dismissals, only stating "prior to service." Those two cases

are case 4:99cv361 (dismissed for failure to prosecute), and case 4:99cv381 (dismissed

on Plaintiff's notice of voluntary dismissal). Id. 

Plaintiff fails to note that he filed several other cases beyond those eleven year

old cases. Plaintiff filed case 4:09cv2 in this court which was dismissed for failure to

state a claim in October, 2009. Docs. 22, 23 of that case.1

 

Plaintiff then filed case 3:10cv46-RV/MD which was dismissed as malicious for

Plaintiff's abuse of the judicial process in July, 2010. Docs. 20, 22. Plaintiff failed to

disclose five cases he had initiated, listing only one prior case. Doc. 20, case 3:10cv46. 

Thus, Plaintiff has three "strikes" under the P.L.R.A., and pursuant to 28 U.S.C. §

1915(g), Plaintiff was not entitled to proceed in forma pauperis in this case. Moreover,

because Plaintiff is barred from proceeding in forma pauperis in federal court, he must

submit the entire filing fee when initiated a civil rights case, unless he is in imminent

danger of serious physical injury. Here, Plaintiff is not. Plaintiff's complaint is against

the Sheriff of Leon County Florida, and Plaintiff complains about access to the law

library in the Leon County Jail when he was detained there three years ago. Plaintiff is

not in danger of harm from the Defendant (Plaintiff is a state prisoner and not in the

custody of the named Defendant), and he is not entitled to proceed in this case with in

forma pauperis status. 

1

 Plaintiff's complaint in that case contains the same claim he is trying again to

bring in this case. While Plaintiff included several other claims, that case was dismissed

for failure to state a claim. Therefore, Plaintiff has already been advised that these

allegations are insufficient to state a claim. Plaintiff filed an appeal of that dismissal, but

his appeal was dismissed for lack of prosecution. Doc. 38.

Case No. 4:11cv20-SPM/WCS
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As a sanction for failing to disclose all of his prior cases, the prior order granting

Plaintiff in forma pauperis should not be vacated and Plaintiff should be required to pay

the entire filing fee. Plaintiff just recently faced this same issue in case 3:10cv46 and

still failed to honestly disclose his prior cases. Moreover, Plaintiff should not attempt to

refile this case because he has already had these allegations reviewed and dismissed

for failure to state a claim. The filing of this complaint, after having already had the

claims dismissed, is further abuse of the judicial process. The sanction is warranted. 

Plaintiff now has this report and recommendation, and any future failure to fully disclose

his prior suits will result in additional sanctions.2

In light of the foregoing, it is RECOMMENDED that this case be DISMISSED as

malicious for failing to disclose all prior cases, and because Plaintiff already had this

claim dismissed for failure to state a claim upon which relief may be granted pursuant to

28 U.S.C. § 1915(e)(2), and that the order adopting this report and recommendation

direct the Clerk of Court to note on the docket that this cause was dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B)(i). It is further RECOMMENDED that the order which granted

Plaintiff in forma pauperis status, doc. 4, not be vacated as a sanction.

IN CHAMBERS at Tallahassee, Florida, on March 1, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

2

 Plaintiff is advised that he is not entitled to in forma pauperis status in the

future, absent being in danger of serious physical injury. 28 U.S.C. § 1915(e). Thus,

Plaintiff must submit the entire filing fee at the time of case initiation.

Case No. 4:11cv20-SPM/WCS
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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. 4:11cv20-SPM/WCS