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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CLARENCE FRANK STEPHENSON,

Plaintiff,

vs. Case No. 3:11cv145/LC/CJK

L. RACHAL, et al., 

Defendants.

__________________________________________________________________

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Florida penal system proceeding pro se and in forma

pauperis, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 (doc. 1). 

Upon review of the complaint, the court concludes this case should be dismissed as

malicious for plaintiff’s abuse of the judicial process.

Because plaintiff is proceeding in forma pauperis, the court is required to

dismiss the case at any time if it determines 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 is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B). Plaintiff filed the instant civil rights complaint on March 25, 2011,

complaining about the conditions of his confinement while housed at Charlotte

Correctional Institution. (Doc. 1). Specifically, plaintiff claims defendant

Correctional Officers Rachal and Ritchie applied excessive force against his person

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by throwing him against a wall and beating him, and that defendant Nichols, a nurse

at Santa Rosa Correctional Institution, exhibited deliberate indifference to his

resulting serious medical needs, all in violation of the Eighth Amendment’s

prohibition against cruel and unusual punishment. (Doc. 1, pp. 9-12). 

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 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.” The complaint form then asks a series of questions and directs the

prisoner to describe each action, attaching additional pages if necessary. Plaintiff did

not answer these questions regarding his prior litigation history. (Doc. 1, p. 7). 

On the same page of the 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?” Where there are

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

marked “No.” (Doc. 1, p. 7). The complaint form then directs the prisoner to

describe each action, attaching additional pages if necessary; again, plaintiff

identified no cases. At the end of the civil rights complaint form, plaintiff signed his

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

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

answered “No” to both Questions (A) and (B), disclosing no cases. (Doc. 1, p. 6).

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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. 14). Thus, plaintiff has in effect stated that he has initiated no other

lawsuits in federal court relating to the conditions of his confinement, and has never

had any action in federal court dismissed prior to service.

As a matter of course, this court attempts to make an independent investigation

into whether 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, the court must necessarily investigate the prior filings of a

prisoner to enforce the so-called “three strikes” provision. See 28 U.S.C. § 1915(g).2

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. As the Eleventh Circuit

explained, “[T]he task of counting strikesinvolvesmore than sophomoric arithmetic. 

Courts must search records of the prisoner’s prior federal casesto 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), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 

The clerk has advised, and this court may take judicial notice, that at the time

plaintiff initiated this lawsuit he had initiated at least one other civil action in federal

court relating to the conditions of his confinement. While incarcerated, plaintiff filed

Section 1915(g) provides that “if the prisoner has, on 3 or more prior occasions, while 2

incarcerated or detained in any facility, brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which

relief may be granted,” the prisoner may not bring an action in forma pauperis unless he is “under

imminent danger of serious physical injury.”

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Stephenson v. Lt. Swartz, Case No. 3:07cv353/LC/EMT, in this district. The case was

filed on August 20, 2007, and dismissed prior to service on February 13, 2008, for

plaintiff’s failure to comply with orders of the court. Alleging assault and retaliation,

plaintiffsought injunctive relief against a correctional officer atCenturyCorrectional

Institution, indicating the action related to the fact or manner of plaintiff’s

incarceration or the conditions of his confinement. Plaintiff did not disclose this case

in the instant complaint. Plaintiff was also untruthful about whether he has had any

federal actions dismissed prior to service. The foregoing case may be positively

identified as having been filed by plaintiff because it bears his Florida Department of

Corrections inmate number, DC#185325.

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. If the court cannot rely on the

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

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 was required. 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. 6). If plaintiffsuffered 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

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undersigned 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. 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 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 27th day of August, 2012.

/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 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, 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).

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