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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ERIC DAVID HARRIS,

Plaintiff,

v. CASE NO. 4:11-cv-146-RH-GRJ

EDWIN G. BUSS, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate serving a sentence in the custody of the Florida Department

of Corrections (“FDOC”), initiated this case by filing a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff paid the filing fee and the case is

before the Court for initial screening pursuant to 28 U.S.C. § 1915A. For the reasons

discussed below, it is respectfully RECOMMENDED that Plaintiff’s Complaint (Doc. 1)

be dismissed for abuse of the judicial process and as barred by res judicata.

BACKGROUND AND FACTS

Plaintiff is an inmate under the custody of the FDOC at Lake Correctional

Institution in Clermont, Florida. Plaintiff’s Complaint names three Defendants in their

individual and official capacities: Edwin Buss, Secretary of the FDOC; Kathleen L.

Fuhrman, FDOC Dietary Manager; and S. Leavins, FDOC Food Service Director. 

Plaintiff claims the Defendants have subjected him to cruel and unusual punishment in

violation of the Eighth Amendment and have denied him due process under the

Fourteenth Amendment by serving him meals containing excessive levels of soy protein

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and textured vegetable protein (“TVP”). Plaintiff contends the excessive levels of soy

protein and TVP in his diet cause him painful cramping, constipation, flatulence,

coughing, joint pain and a possible autoimmune disorder. Plaintiff seeks monetary

damages, injunctive relief, and attorney’s fees.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(e)(2), “notwithstanding any filing fee, or any

portion thereof, that may have been paid, the court shall dismiss the case at any time if

the court determines that . . . the action . . . fails to state a claim upon which relief may

be granted.” 

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an

act or omission committed by a person acting under color of state law deprived him of a

right, privilege, or immunity secured by the Constitution or laws of the United States. 

Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot

satisfy these requirements, or fails to provide factual allegations in support of the

claims, then the complaint is subject to dismissal. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (noting that “[f]actual allegations must be enough to raise a

right to relief above the speculative level,” and complaint “must contain something more

. . . than . . . a statement of facts that merely creates a suspicion [of] a legally

cognizable right of action”); Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951-53

(2009) (Twombly “expounded the pleading standard for all civil actions,” and conclusory

allegations that “amount to nothing more than a formulaic recitation of the elements of a

constitutional . . . claim” are “not entitled to be assumed true,” and, to escape dismissal,

the complaint must allege facts sufficient to move claims “across the line from

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conceivable to plausible.”). 

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

DISCUSSION

Plaintiff’s Complaint is due to be dismissed for two reasons. First, Plaintiff

abused the judicial process by failing to disclose two prior lawsuits he filed in this Court

and also misrepresented the disposition of an identical lawsuit he filed less than one

year ago in this Court. Plaintiff’s claims in the Complaint are also barred by res judicata

because virtually identical claims were dismissed by the Court in a previously filed case. 

A. Plaintiff’s Abuse of the Judicial Process

Plaintiff executed the civil rights complaint form under penalty of perjury. (Doc. 1

at 10.) Section IV of the Court’s civil rights complaint form requires prisoners to

disclose information regarding previous lawsuits. (Id. at 5.) Section IV B requires

prisoners to disclose whether they have initiated actions in federal court “dealing with

the same or similar facts involved in this action or otherwise relating to [the plaintiff’s]

imprisonment or conditions thereof.” Plaintiff checked “yes,” and identified one prior

case: Harris v. McNeil, Case No. 5:10-cv-76-RS-MD (N.D. Fla.). Plaintiff represented

the case concerned an “8 Amendment violation pertaining to soy,” and the case “was th

dismissed without prejudice” for “failure to state a claim.” (Id. at 5.)

A review of the Court’s CM/ECF docketing system reflects the one case

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identified by Plaintiff in Section IV B in the instant Complaint did not terminate in the

manner described by Plaintiff. Contrary to Plaintiff’s representation that the case was

dismissed without prejudice the docket for that case reflects the case was dismissed

with prejudice pursuant to 28 U.S.C. § 1915A for failure to state a claim upon which

relief can be granted. (Case No. 5:10-cv-76-RS-MD Doc. 34.) Thus, Plaintiff misstated

the disposition of this case in Section IV B in the instant Complaint. This Court entered

an Order To Show Cause (Doc. 4) asking Plaintiff to show cause why the case should

not be dismissed as a result of this misstatement. Plaintiff responded and argued that

he believed the dismissal was without prejudice. (Doc. 5.)

In addition to the requirements in Section IV B, the prisoner is required in Section

IV D to disclose whether the prisoner has “initiated lawsuits or appeals from lawsuits in

federal court that have been dismissed as frivolous, malicious or for failure to state a

claim upon which relief may be granted,” and, if so, to identify each case and its

disposition. Plaintiff checked “yes,” and identified only one prior case: Harris v. McNeil,

Case No. 5:10-cv-76-RS-MD (N.D. Fla.). 

The Court’s CM/ECF review, however, reflects that Plaintiff filed two other cases

in this Court, one of which was dismissed for failure to state a claim and one of which

was dismissed for failure to follow a Court order. Neither of these case were disclosed

in Section IV D as required. In one of the cases, Plaintiff claimed a particular website

caused him mental anguish as a close friend of one of the Columbine High School

shooters. Harris v. Ledonne, Case No. 5:08-cv-4-RS-MD, Doc. 22. The case was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Harris v.

Ledonne, Case No. 5:08-cv-4-RS-MD, Doc. 38 (N.D. Fla. June 24, 2008). 

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In the second omitted case, Plaintiff asserted claims against both the thenGovernor and then-Attorney General of Florida alleging that Florida’s lack of a male

version of battered woman’s syndrome was unconstitutionally discriminatory. The Court

dismissed that case without prejudice prior to service for failure to comply with a Court

Order. See Harris v. Crist, Case No. 4:08-cv-546, Doc. 17 (N.D. Fla. Mar. 30, 2009). 

The Court’s Order To Show Cause referenced Plaintiff’s failure to disclose both

cases and gave Plaintiff the opportunity to show cause as to why this case should not

be dismissed for abuse of the judicial process. (Doc. 4.) In response, Plaintiff stated

his failure to disclose these two previous lawsuits in the Complaint was because he lost

paperwork due to prison shakedowns, his legal name change, and his incomplete

memory regarding his prior lawsuits. (Doc. 5.) 

Plaintiff’s excuse is disingenuous particularly in view of the fact that on June 9,

2010 – the date Plaintiff filed the Second Amended Complaint in Harris v. McNeil,

Case No. 5:10-cv-76-RS-MD, Doc. 30 at 6 – Plaintiff identified at least one of the two

cases omitted from Section IV D of the complaint form in this case. The Complaint in 1

this case was filed on April 8, 2011, just nine months later. Thus, despite the fact that

the two cases were filed close in time, Plaintiff failed to advise the Court about the

Ledonne case. 

In the absence of any basis for excusing a plaintiff’s lack of candor, failure to

disclose and truthfully describe previous lawsuits as clearly required on the Court’s

prisoner civil rights complaint form warrants dismissal of the complaint for abuse of the

In that case, Plaintiff listed Harris v. Ledonne, Case No. 5:08-cv-4-RS-MD, Doc. 38 (N.D. Fla.

1

June 24, 2008) as a previous lawsuit which had been dismissed.

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judicial process. See Redmon v. Lake County Sheriff’s Office, No. 10-11070, 2011 WL

576601, at *4 (11 Cir. Feb. 10, 2011). In Redmon, the Eleventh Circuit affirmed the th 2

dismissal of a prisoner’s civil rights complaint for failure to disclose a previous lawsuit. 

The plaintiff argued that he “misunderstood” the form, but the Court held the district

court had the discretion to conclude the plaintiff’s explanation did not excuse his

misrepresentation because the complaint form “clearly asked Plaintiff to disclose

previously filed lawsuits[.]” Id. The Court determined dismissal was an appropriate

sanction:

Under 28 U.S.C. § 1915, “[a] finding that the plaintiff engaged in bad faith

litigiousness or manipulative tactics warrants dismissal.” Attwood v.

Singletary, 105 F.3d 610, 613 (11th Cir.1997). In addition, a district court

may impose sanctions if a party knowingly files a pleading that contains

false contentions. Fed.R.Civ.P. 11(c). Although pro se pleadings are held

to a less stringent standard than pleadings drafted by attorneys, a

plaintiff's pro se status will not excuse mistakes regarding procedural

rules. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984,

124 L.Ed.2d 21 (1993).

Id.

In addition to revealing whether a prisoner is subject to the PLRA’s “three strikes”

provision, the information required on the form assists the Court in efficiently managing

prisoner litigation by showing whether a complaint is related to or is affected by another

case. The failure to exercise candor in completing the form, while acknowledging that

the answers are made under penalty of perjury, impedes the Court in managing its

caseload and merits the sanction of dismissal. See Redmon, 2011 WL 576601, at *4;

Johnson v. Crawson, No. 5:08-cv-300, 2010 WL 1380247, at *2 (N.D. Fla. Mar. 3,

Pursuant to 11 Cir. Rule 36-2, unpublished opinions are not binding precedent but may be cited

2 th

as persuasive authority.

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2010)(“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.

Furthermore, if word spread around the prisons that the questions on the complaint

form could be circumvented in such a manner, the court might be confronted with

widespread abuse from its many prisoner litigants.”); Paulcin v. McNeil, No. 3:09-cv151, 2009 WL 2432684, at *2 (N.D. Fla. Aug. 6, 2009) (“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.”). Plaintiff’s misrepresentation of the nature of the dismissal of one prior

lawsuit in Section IV B – a lawsuit substantially identical to this action – and his

complete failure to disclose two other cases -- one of which he had included in a prior

lawsuit filed just nine months before this case – warrants dismissal of the Complaint.

B. Plaintiff’s Claims Are Barred By Res Judicata

Even if Plaintiff’s claims were not due to be dismissed because of Plaintiff’s

abuse of the legal process, Plaintiff’s claims in this case should also be dismissed

because the claims are barred by res judicata. Plaintiff’s Complaint in this case is

virtually identical to the Second Amended Complaint Plaintiff filed in Case No. 5:10-cv76-RS-MD. That case was dismissed with prejudice pursuant to 28 U.S.C. § 1915A for

failure to state a claim upon which relief can be granted. (Case No. 5:10-cv-76-RS-MD

Doc. 34.) Plaintiff’s Second Amended Complaint in Case No. 5:10-cv-76-RS-MD

named five defendants: Defendants Fuhrman and Leavins, Defendant Buss’s

predecessor as FDOC Secretary, and two other state prison officials. (Id.) Just as

Plaintiff alleges in this case, Plaintiff alleged in his Second Amended Complaint there

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that defendants caused the Plaintiff injury or placed him at an increased risk of serious

injury by forcing him to eat a diet in excess of the Food and Drug Administration’s

maximum daily recommended intake of soy protein, which purportedly caused Plaintiff

“severe gastrointestinal problems and abdominal cramps.” (Case No. 5:10-cv-76-RSMD Doc. 30 at 8.) The claim in this case is for all intents and purposes based upon the

same complaint – i.e. excessive soy in the diet – which Plaintiff attempted to prosecute

in the previously dismissed case.

Res judicata bars relitigation of matters decided in a prior case. Jang v. United

Technologies, Corp., 206 F.3d 1147, 1149 (11 Cir. 2000). Res judicata will bar a later th

action if: (1) the prior decision was rendered by a court of competent jurisdiction; (2)

there was a final judgment on the merits; (3) the parties were identical in both suits; and

(4) the prior and present causes of action are the same. Id.

The instant case satisfies all four requirements. This Court decided Plaintiff’s

previous case and clearly possessed jurisdiction over that action under 42 U.S.C. §

1983. The Defendants in this case are identical to the defendants in Case No. 5:10-cv76-RS-MD, with the notable exception of Defendant Buss, who is defendant Walter

McNeil’s successor as FDOC Secretary, and the deletion of two other state prison

officials, who were defendants in the earlier case. Plaintiff’s claims in the instant

Complaint also are substantially the same as in Case No. 5:10-cv-76-RS-MD. Plaintiff

claimed there and claims here that the food served to him by the FDOC contains too

much soy, which in turn causes Plaintiff cramping, constipation, flatulence, and other

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maladies.3

Lastly, although the prior case was dismissed for failure to state a claim, the

dismissal was with prejudice. Dismissal of a plaintiff’s complaint for failure to state a

claim serves as a final judgment on the merits for res judicata purposes which operates

to bar subsequent actions by the same plaintiff arising out of the same nucleus of

operative facts or which are based upon the same factual predicate. See Harmon v.

Webster, 263 Fed. Appx. 844, 845-46 (11th Cir. 2008)(per curiam)(prior dismissal of a

complaint for failure to state a claim satisfies the elements of res judicata and bars

further lawsuits based on the same operative facts); NAACP v. Hunt, 251 F.3d 1346,

1349 (11 Cir. 2001)(a dismissal for failure to state a claim under Fed. R. Civ. P. th

12(b)(6) is an adjudication on the merits for res judicata purposes). As such, the

dismissal of the prior action constitutes a final judgment on the merits for purposes of

res judicata.

Thus, all four requirements of res judicata have been satisfied in this case and,

therefore, Plaintiff’s claims in the instant Complaint are due to be dismissed.

CONCLUSION

Accordingly, in light of the foregoing, it is respectfully RECOMMENDED that

Plaintiff’s Complaint (Doc. 1) should be dismissed for abuse of the judicial process and

W hile Plaintiff’s Complaint in this action includes as an exhibit a memorandum not filed with his

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Second Amended Complaint in Case No. 5:10-cv-76-RS-MD regarding the alleged harmful effects upon

the human body of ingesting too much soy, the fact remains that the basis of his claims in the two cases is

the same.

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because the claims are barred by res judicata. 

IN CHAMBERS this 15 day of September, 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), 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.

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