Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ERVIN JAMES HORTON,

 Plaintiff,

vs. Case No. 5:11cv219/MP/CJK

SECURUS TECHNOLOGIES,

 Defendant.

ORDER and

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a civil rights complaint pursuant to 42

U.S.C. § 1983. (Doc. 1). Plaintiff has also filed a motion to proceed in forma

pauperis. (Doc. 2). For the limited purpose of dismissal of the complaint, leave to

proceed in forma pauperis will be granted. 

Plaintiff is currently incarcerated at Florida Northwest Reception Center and

names Securus Technologies as the defendant in this matter. Plaintiff claims

defendant violated his rights under the First and Fourteenth Amendments when it

prevented him from communicating with the persons on his inmate telephone

agreement and number list. (Doc. 1, pp. 6-7). Plaintiff seeks injunctive and

declaratory relief, in addition to punitive damages and costs. (Doc. 1, p. 15).

Because plaintiff is proceeding in forma pauperis, the court may dismiss the

case if satisfied 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

Case 5:11-cv-00219-MP-CJK Document 7 Filed 07/11/11 Page 1 of 5
Page 2 of 5

is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(B). Upon review of the

complaint, the undersigned concludes that this case should be dismissed asmalicious.

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 “No.” (Doc. 1, p. 5). The complaint form then directs the prisoner to

describe each action, attaching additional pages if necessary. Plaintiff disclosed no

cases. On the same page of the civil rights 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? If so,

identify each and every case so dismissed.” (Doc. 1, p. 5) (emphasis added). Where

there are parenthetical areas to mark either a “Yes” or “No” answer to Question (D),

plaintiff marked “No,” and disclosed no cases. 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. 1, p. 15). Thus, plaintiff has in effect

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

of his confinement, or that were dismissed prior to service.

 Questions (A) and (B) asked plaintiff whether he had initiated other actions in state or federal 1

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

to both questions in the negative.

Case No: 5:11cv219/MP/CJK

Case 5:11-cv-00219-MP-CJK Document 7 Filed 07/11/11 Page 2 of 5
Page 3 of 5

This court does attempt to make, as a matter of course, 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 light of 28 U.S.C. § 1915(g),2

the court must necessarily investigate the prior filings of a prisoner to enforce the socalled “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. 

3

Having reviewed the file, the Clerk has advised, and this court may take

judicial notice, that plaintiff previously initiated at least three other civil actions in

federal court that were dismissed prior to service. Horton v. Bryant, et al. (case

number 3:93cv630), a civil rights case filed in the United States District Court for the

Middle District of Florida on May 5, 1993, was dismissed June 10, 1993, prior to

service, for plaintiff’s abuse of the judicial process. (Docs. 8, 9). Horton v.

Singletary, et al. (case number 4:92cv40217), a civil rights case filed in this court on

June 19, 1992, was dismissed May 14, 1993, prior to service, for plaintiff’s failure to

comply with court orders and as frivolous. (Doc. 17). Horton v. Department of

Legal, et al. (case number 4:92cv40449), a civil rights case filed in this court on

November 30, 1992, was dismissed September 29, 1994, prior to service, asfrivolous.

(Docs. 32, 33). These cases, all of which plaintiff filed while incarcerated, may be

Section 1915(g) provides that if a prisoner has had three (3) prior actions dismissed as frivolous 2

or malicious or for failing to state a claim, the prisoner may not bring an action in forma pauperis

unless he is “under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g).

 “[T]he task of counting strikes involves more than sophomoric arithmetic. Courts must search 3

records of the prisoner’s prior federal cases to determine whetherjudicial 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)).

Case No: 5:11cv219/MP/CJK

Case 5:11-cv-00219-MP-CJK Document 7 Filed 07/11/11 Page 3 of 5
Page 4 of 5

positively identified as having been filed by plaintiff because they bear his Florida

Department of Corrections inmate number, DC number 037253. Nevertheless, when

crafting his response to Section IV, Question (D)—which asks whether plaintiff has

ever had any actionsin federal court dismissed asfrivolous, malicious, failing to state

a claim, or prior to service—plaintiff did not disclose any of these cases in the instant

complaint.

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. When the court cannot rely on the

statements or responses made by the parties, such threatens the quality of justice. 

When, asin this case, the Clerk must go behind a pro se plaintiff’s sworn declarations

in order to uncover the falsity ofsuch declarations, valuable time has been needlessly

expended, and other pressing duties of the Clerk and court go untended in the

meanwhile. This 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 wasrequired. 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. 5). 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 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.

Case No: 5:11cv219/MP/CJK

Case 5:11-cv-00219-MP-CJK Document 7 Filed 07/11/11 Page 4 of 5
Page 5 of 5

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 (9th Cir. 1994) (per curiam) (holding pro se, in forma

pauperis prisoner’s misrepresentation about previous lawsuits may violate Rule 11).

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED for the

limited purpose of dismissing this action.

And 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 11th day of July, 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

14 days after being served a copy thereof. Any different deadline that may appear on

the electronic docket isfor 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 (11th Cir. 1988).

Case No: 5:11cv219/MP/CJK

Case 5:11-cv-00219-MP-CJK Document 7 Filed 07/11/11 Page 5 of 5