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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES NELSON,

Plaintiff,

vs. Case No. 4:10cv398-MP/WCS

FLORIDA DEPARTMENT OF 

CORRECTIONS, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff James Nelson, inmate number 307445, is an inmate incarcerated within

the Florida Department of Corrections, currently housed at Madison Correctional

Institution. Doc. 1, Doc. 2. Plaintiff has submitted a § 1983 civil rights case against

numerous Defendants, and Plaintiff states on the complaint form that he has previously

had one case dismissed as frivolous, malicious, failing to state a claim, or prior to

service. Id., at 4. Plaintiff indicates, however, that it was dismissed for: "filing fees,

three strike provision." Id. Plaintiff's response is only partially true. As has already

been discovered in this District, Plaintiff has three strikes and is not entitled to proceed

in forma pauperis. Plaintiff is aware of that fact as demonstrated by his answer in the

reason for dismissal and thus, should not have filed an in forma pauperis motion.
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Plaintiff does not acknowledge that he initiated case 3:05cv969 in the Middle

District of Florida on September 19, 2005. Plaintiff was incarcerated at Madison

Correctional Institution at that time, and District Judge Harvey Schlesinger dismissed

Plaintiff's civil rights case just a few days after Plaintiff initiated it, finding Plaintiff had

cases 3:00cv872, 3:00cv873, 3:00cv874, 3:00cv856, 3:00cv857, and 3:00cv858

dismissed as frivolous, malicious, or for failure to state a claim. Doc. 4, case

3:05cv969.1

 

Plaintiff previously filed another case in the Middle District which was transferred

to the Northern District in August of 2005. Case 3:05cv331. The case was ultimately

dismissed in May of 2006, for Plaintiff's repeated failure to follow and comply with court

orders. Docs. 29, 31. When Plaintiff appealed that dismissal, the Eleventh Circuit

initially granted him in forma pauperis status. However, the appellate court belatedly

learned that Plaintiff had more than three cases dismissed under § 1915(e) and, thus,

was barred from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g). 

All of the above information concerning Plaintiff's prior cases was set forth in my

report and recommendation in case 4:09cv315. Doc. 7, of that case. Notably, Plaintiff

acknowledges that case in his complaint here. Doc. 1, p. 3. My report and

recommendation was adopted on March 18, 2010, doc. 16, and the close proximity of

that dismissal with Plaintiff's initiation of this case makes it clear that Plaintiffs' continued

filings are willful, in bad faith, and are an abuse of the judicial system. Plaintiff has once

1

 Records of the United States District Court for the Middle District of Florida

reveal Plaintiff had filed even more cases. There is no reason to cite all of those cases

as it is clear Plaintiff is barred by § 1915(g) and cannot proceed here, even though he

also has not acknowledged all prior case filed.

Case No. 4:10cv398
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again attempted to intentionally deceive this Court and he has committed perjury in

signing the complaint form. Rule 11(b) of the Federal Rules of Civil Procedure "forbids

lying in pleadings, motions, and other papers filed with the court." Zocaras v.Castro,

465 F.3d 479, 484 (11th Cir. 2006). Furthermore,"Rule 11(c) provides for sanctions

concerning misrepresentations made in papers filed with the court under Rule 11(b)." 

Id. at 490; see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1335 (3d ed. 2004) (noting that courts have deemed sanctions appropriate

to punish various forms of party misconduct). Rule 41(b) "expressly authorizes the

involuntary dismissal of a claim for plaintiff's failure to abide by . . . the Federal Rules of

Civil Procedure." Zocaras, 465 F.3d at 490; State Exch. Bank v. Hartline, 693 F.2d

1350, 1352 (11th Cir. 1982). If Plaintiff continues this conduct, he may be subjected for

further sanctions.

This case concerns an alleged conspiracy to obstruct Plaintiff's federal

proceedings. Doc. 1, p. 1. This is not a case brought under the exemption of 28 U.S.C.

§ 1915(g) for being in danger of imminent physical injury. Due to Plaintiff's dishonesty

in not acknowledging all prior cases, this case should be dismissed without prejudice. 

Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (noting that the district court did not

abuse its discretion by dismissing an action without prejudice where plaintiff "had lied

under penalty of perjury about the existence of a prior lawsuit"). Moreover, Plaintiff

cannot proceed with this case without full pre-payment of the $350.00 filing fee because

Plaintiff is barred by § 1915(g) from being granted in forma pauperis status. This case

should be dismissed. 

Case No. 4:10cv398
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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED as an abuse of the judicial process and Plaintiff's

motion for leave to proceed in forma pauperis, doc. 2, be DENIED pursuant to 28

U.S.C. § 1915(g), and it is further RECOMMENDED that the order adopting this report

and recommendation direct the Clerk of Court to note on the docket that this cause was

dismissed as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

IN CHAMBERS at Tallahassee, Florida, on September 17, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 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. 4:10cv398