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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

RAY CHRIS MOBLEY,

 Plaintiff,

vs. Case No. 3:11cv230/LC/CJK

DR. SHEPPARD, 

 Defendant.

__________________________________________________________________

REPORT AND RECOMMENDATION

This cause is before the Court upon plaintiff’s amended civil rights complaint

filed under 42 U.S.C. § 1983. (Doc. 7). Plaintiff is proceeding pro se and in forma

pauperis. Upon review of the amended complaint, the Court concludes that 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 initiated this action on May 11, 2011, by filing a civil rights

complaint. (Doc. 1). At that time plaintiff was an inmate of the Putnam County Jail

in Eatonton, Georgia. Plaintiff filed his amended complaint on June 20, 2011. (Doc.

7). The amended complaint names two defendants: Dr. Sheppard, a doctor at the

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Walton County Jail; and the Walton County Commission. (Doc. 7, p. 2). Plaintiff

claims he was denied adequate medical care by Dr. Sheppard in 2005 and 2007 while

incarcerated at the Walton County Jail. (Id., pp. 5-7). As relief, plaintiff seeks

“General and Punitive Damages” in an unspecified amount. (Id., p. 7).

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

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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 “Yes.” (Doc. 7, p. 4). The complaint form then directs the prisoner to

describe each action, attaching additional pages if necessary. Plaintiff disclosed a

2008 state habeas proceeding, as well as the following six civil actions he initiated

in this Court:

• Mobley v. Johnson, Case Number 3:07cv230;

• Mobley v. Walton Cnty. Dep’t of Corr., Case Number 3:07cv235;

• Mobley v. Walton Cnty. Sheriff’s Office, Case Number 3:11cv147;

• Mobley v. CCA Corr. Corp. of Am., et al., Case Number 5:09cv342;

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 “Yes” to Question (A) and disclosed one case, a state court mandamus proceeding plaintiff

filed in 2006 in the Circuit Court for Walton County, Florida. (Doc. 7, p. 3). Plaintiff also answered

“Yes” to Question (B) and disclosed one case, a civil rights case plaintiff filed in this Court in 2011: 

Mobley v. Walton Cnty. Sheriff’s Office, Case No. 3:11cv147.

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• Mobley v. Walton Cnty. DOC, Case Number 3:11cv179; and

• Mobley v. Walton Cnty. DOC, Case Number 3:11cv148.

(Id.). Plaintiff’s original complaint had disclosed three additional federal civil

actions:

• Mobley v. Walton Cnty. Sheriff’s Office, Case Number 3:11cv180;

• Mobley v. McKeithen, Case Number 5:09cv332; and

• Mobley v. McKeithen, Case Number 5:07cv118.

(Doc. 1, Attach. “Notice to Court”). 

Plaintiff disclosed no other cases. At the end of each civil rights complaint

form, plaintiffsigned 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. 7; Doc. 7, p. 7). Thus, plaintiff has in effect stated that

he has initiated no other lawsuits in federal court relating to the fact of his

incarceration or the conditions of confinement.

As a matter of course, thisCourt attempts to make 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 the light of 28 U.S.C. § 1915(g) , the Court must

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necessarily investigate the prior filings of a prisoner to enforce the so-called “three

strikes” provision. The time spent verifying the cases a plaintiff has filed but failed

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.” 28 U.S.C. § 1915(g).

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to identify, as well as the reasons for their dismissal can be considerable. As the

Eleventh Circuit explained: “[T]he task of counting strikes involves more than

sophomoric arithmetic. Courts must search records of the prisoner’s prior federal

cases to 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 (11 Cir. 1998) (citing 28 U.S.C. §

th

1915(g)), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910,

166 L. Ed. 2d 798 (2007). 

The Clerk has advised and this Court may take judicial notice, that at the time

plaintiff initiated thislawsuit he had initiated at least two other civil actionsin federal

court relating to his conditions of confinement. Plaintiff filed the following cases in

this Court:

• Mobley v. CCA Corr. Corp. of Am., et al., Case Number 5:10cv34, a §

1983 action plaintiff filed on February 16, 2010, claiming constitutional

violations arising from plaintiff’s assault by another inmate on June 19,

2006 while confined at the Bay County Jail. 

• Mobley v. Corr. Corp. of Am., et al., Case Number 5:11cv108, a § 1983

action plaintiff filed on April 13, 2011, claiming constitutional

violations arising from plaintiff’s contracting tuberculosis while

confined at the Walton County Jail in 2005, and being denied adequate

medical care while confined at the Bay County Jail in 2007. 

Plaintiff did not disclose these cases in his original or amended complaint.

In addition, plaintiff’s amended complaint, which plaintiff signed on June 12,

2011, failed to disclose over twenty other civil rights actions plaintiff initiated in this

Court either after, or at the time of, filing his original complaint, but before

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submitting his amended complaint: Case Numbers 3:11cv229, 3:11cv231,

3:11cv232, 3:11cv233, 3:11cv266, 3:11cv268, 3:11cv269, 3:11cv270, 4:11cv270,

5:11cv142, 5:11cv169, 5:11cv170, 5:11cv171, 5:11cv172, 5:11cv173, 5:11cv175,

5:11vc176, 5:11cv177, 5:11cv178, 5:11cv179, 5:11cv181, 5:11cv182 and 5:11cv183.

In the foregoing cases, plaintiff challenged either the conditions of his confinement

at various county jails, or his arrest and detention, prosecution, and/or trial. Plaintiff

did not disclose any of the foregoing cases in his amended complaint.

The Court has the authority to control and manage matterssuch 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. 7,

p. 3). 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. 

Therefore, this Court should not allow plaintiff’s false responses to go unpunished. 

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. See, e.g., Redmon v. Lake Cnty. Sheriff’s Office, 414 F. App’x 221, 226

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(11 Cir. 2011) (holding that district court did not abuse its discretion by dismissing th

prisoner’s amended civil rights complaint without prejudice for abuse of the judicial

process, where prisoner’s amended complaint failed to disclose a federal lawsuit the

prisoner initiated after the filing of his initial complaint but prior to the filing of his

amended complaint); Pinson v. Grimes, 391 F. App’x 797, 799 (11 Cir. 2010)

th

(holding that district court did not abuse its discretion in dismissing prisoner’s case

without prejudice for abuse of the judicial process, where prisoner failed to disclose

two federal cases). 

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

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

under 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 17th day of January, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

The undersigned cites these unpublished cases only as persuasive authority and recognizes 3

that the opinions are not considered binding precedent. See 11 Cir. R. 36-2. th

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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 (11 Cir. 1988). th

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