IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS CURTIS HINES, #118977 :

Plaintiff, :

vs. : CIVIL ACTION 11-0644-WS-C

KIM THOMAS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a 

complaint under 42 U.S.C. §§ 1983, 1985, and 1986. This action was referred to the undersigned 

for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). After a 

careful review of the current filing and the plaintiff’s extensive litigation history, it is 

recommended that this action be dismissed without prejudice as malicious. 28 U.S.C. §

1915(e)(B)(i).1 

I. Posture of Action.

A. Proceedings.

Plaintiff’s action is before the Court on his response to the Court’s order to show cause 

why his action should not be dismissed and counted as a strike for being abusive, and for the 

screening of the amended complaint under 28 U.S.C. § 1915(e)(2)(B). (Docs. 16, 17, 19). 

Plaintiff was ordered to file an amended complaint that contained a “short and plain statement” 

of his claim, because he initially filed a 168-page complaint, 6-page supplemental complaint, and 

 1

 This recommendation is made prior to service having been ordered as to any defendant.

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13-page corresponding “motion for a temporary restraining order and a preliminary injunction.” 

(Docs. 1, 4, 5, 13, 19). The original complaint contained claims for the denial of access to courts 

with respect to plaintiff’s thirty-year sentence for possession of burglar’s tools, rendered in 1983 

pursuant to Alabama’s Habitual Felony Offender Act (“HFOA”) (Alabama Code § 13A-5-9), 

which he contends is illegal because he should have received a sentence for a Class C felony

which carries a maximum sentence of only ten years, instead of being sentenced pursuant to 

HFOA. (Doc. 19 at 6-7). In the thirty-eight page amended complaint, plaintiff reiterated his 

access-to-courts claims and added claims related to his prison classification. (Doc. 19).

Furthermore, in the original complaint, which was signed under penalty of perjury, 

plaintiff stated that he had not filed any other lawsuits in state or federal court dealing with the 

same or similar facts, but he had filed other lawsuits relating to his imprisonment. (Doc. 1 at 3). 

Because he responded that he had previously filed lawsuits related to his imprisonment, the 

complaint form instructed him to “describe each lawsuit in the space below” and if there was 

more than one lawsuit, he was instructed to “describe the additional lawsuits on another piece of 

paper, using this same outline.” (Id.). Plaintiff listed a lawsuit that he filed in this Court in 1986 

against Glenn Davidson,2 and another that he filed against the same defendant in state court in 

Montgomery County, Alabama in 1986. (Id.). 

Because plaintiff is proceeding in forma pauperis, the Court screened his original 

complaint and discovered in its examination of PACER (Public Access to Court Electronic 

Records) and the Court’s records that plaintiff has previously filed numerous actions going back 

as far as 1983. In Hines v. Hawsey, CA 02-0574-CB-S (S.D. Ala. Sept. 29, 2004), Chief Judge 

Steele (then serving as a magistrate judge) took the time to identify plaintiff’s litigation history. 

 2 Mr. Davidson served as plaintiff’s criminal trial attorney in the action decided in 1983. Hines v. 

White, CA 11-0648-WS-C, 2012 WL 4497642, at *3 (S.D. Ala. Sept. 11, 2012).

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(Report and Recommendation, Doc. 9, fn. 1). Mr. Hines clearly received a copy of this Report 

and Recommendation because he filed objections on January 6, 2003 (Id., Doc. 13). 

A major complaint presented by Mr. Hines throughout his litigation history is the belief 

that most of the constitutional problems identified in either habeas corpus actions or civil rights 

actions are rooted in the unconstitutional sentence he received in 1983. In light of this 

information, this Court ordered plaintiff to show cause why his action should not be dismissed 

and counted a strike under 28 U.S.C. § 1915(g) for abuse of the judicial process or should not be 

dismissed for failure to comply with the Court’s form’s requirements. (Doc. 16).

B. Amended Complaint (Doc. 19).

After Mr. Hines was put on notice of the Court’s concerns regarding his failure to provide 

the court with a complete litigation history, an amended complaint was filed on March 29, 2012. 

In the amended complaint, plaintiff complains about a conspiracy that began with his sentencing, 

which has been joined by numerous judges and officials. Now, defendant prison officials are 

alleged to have joined the conspiracy when they denied him access to the courts by changing 

how inmates access Fountain Correctional Center’s (“FCC”) law library, its resources, and the 

law. Plaintiff alleges that from April 18, 2011 to July 15, 2011,3 defendants Kim Thomas, James 

Deloach, Gwendolyn Mosley, Cynthia White, Walter Myers, Richard Hetrick, T. Raybon, and S. 

Langham4 joined an ongoing conspiracy against him that is conducted by non-defendants Mobile 

 3 Even though plaintiff identified this time frame for his claims, his allegations contain claims 

beyond his own time frame.

4 In plaintiff’s general description of his claims, the majority of the allegations do not provide a 

causal connection to a specific defendant who took the complained of action. (Doc. 19 at 1-24). In his 

allegations, plaintiff vaguely refers to a person or defendant against whom his claims are directed, or he 

may allege “the defendants” or “a defendant” in some allegations. It is only when the complaint form 

requires a specific defendant to be listed that most of the information that is relevant to establishing causal 

connections is provided. Id. at 24-35. When a specific defendant is mentioned in the general description, 

that defendant is included in the Court’s description of the claim. Noteworthy is plaintiff’s statement in 

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County Circuit Court Judge John Lockett and Judges Lane Mann,5 Samuel H. Welch, Kelli Wise, 

H.W. “Buck” McMillian, Sue Bell Cobb, Pamela W. Baschab, and Greg Shaw.6 (Id. at 6). The 

purpose of the conspiracy was to violate plaintiff’s rights under the First, Fourth, Eighth, 

Thirteenth, and Fourteenth Amendments and under 42 U.S.C. §§ 1985 and 1986. (Id.). 

Plaintiff asserts that these judges knew from plaintiff’s trial transcript that he could not be 

sentenced to thirty years in prison on a Class C felony because the maximum sentence is ten 

years for this felony. (Id. at 7). These judges also knew his continued incarceration on this 

sentence violated his rights under Fourth, Eighth, Thirteenth, and Fourteenth Amendments and 

they “failed to act even though compel[led] to d[o] so under 42 U.S.C. sec. 1985-1986.” (Id.). 

In 1985, on direct appeal, the Alabama Court of Criminal Appeals rejected his argument that the 

State failed to give notice that it was treating plaintiff as a habitual offender. (Id.). However, in 

1987, he claims the Alabama Supreme Court adopted his argument in another defendant’s case 

and ordered that defendant resentenced without the application of HFOA. (Id.).

In 1986, the Alabama Court of Criminal Appeals in plaintiff’s post-conviction relief 

proceeding and this Court, on plaintiff’s petition for the writ of habeas corpus, rejected plaintiff’s 

argument that his thirty-year sentence is illegal. (Id.). Plaintiff argued that the admission of his 

 

his response to the show cause order is that “[he] has no idea which defendant individually is responsible 

for the law library at Fountain Correction Center[,]” and he makes a similar statement regarding his mail. 

(Doc. 17 at 2-4). Cf. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (holding that a plaintiff 

must causally connect a defendant’s actions, omissions, customs, policies, or breaches of statutory duty to 

a deprivation of the plaintiff’s constitutional or federal rights in order to state a claim under § 1983).

5 Plaintiff refers to Judge Lane Mann, a person who is known to the Court as the past Clerk of the 

Alabama Court of Criminal Appeals. (Doc. 1 at 48). Hereafter, the Court will refer to this defendant as 

Lane Mann with the correction that he is not a judge even though plaintiff refers to him as a judge and 

includes him when a group of judges is mentioned.

6 Plaintiff also names as defendants Alabama Department of Risk Management and Alabama 

Board of Adjustment for the purpose of guaranteeing payment of any judgment that may result. (Doc. 19 

at 34).

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prior convictions for impeachment purposes during his criminal trial did not waive the State’s 

requirement to give him notice that he would be treated as a habitual offender or to relieve the 

State of its burden to prove his prior convictions. (Id.). Even though the Court of Criminal 

Appeals rejected his argument, he alleges its judges, McMillian, Cobb, Shaw, and others, 

adopted the plaintiff’s argument on an identical issue raised in another case using plaintiff’s case 

law, and reversed that defendant’s sentence, ordering him to be resentenced without applying the 

HFOA. (Id. at 7-8). 

In 2003, when plaintiff filed a Rule 32 petition, he asserts that the conspiracy between 

Judges Lockett, Welch, and Wise and Mr. Mann to violate his rights continued. (Id. at 8). That 

is, Judge Lockett denied his petition, and Judges Wise, McMillian, Shaw, Baschab, and Cobb 

affirmed the denial. (Id.). Plaintiff argued that the trial court was without jurisdiction to impose 

an enhanced sentence under HFOA because the HFOA was not invoked prior to trial, after 

conviction, or prior to sentencing. (Id.). Not only did the Alabama Court of Criminal Appeals 

ignore its 1987 decision that is contrary to its holding in plaintiff’s case, he claims that it ignored 

other issues raised by plaintiff. (Id.).

In 2009, plaintiff filed a second Rule 32 petition, in which he asserted that the trial court 

was without jurisdiction to enhance his sentence because his case action summary sheet reflects 

that he was not sentenced under HFOA. (Id. at 8-9). Judge Lockett summarily dismissed the 

petition as successive. (Id. at 8). Judges Wise and Welch upheld the dismissal on appeal. He 

incorrectly names Mr. Mann as a third judge (Id.). The appellate decision is contended to be 

contrary to the law that holds jurisdictional issues are not subject to the successive petition rules 

and to a line of cases from 1997, holding that if the defendant’s records do not show that he was 

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sentenced pursuant to HFOA, a sentence greater than authorized by statute for a conviction is 

illegal. (Id. at 8-9). 

“Between April and July-2011, the defendant[s] Kim Thomas, James Deloach, 

Gwendolyn Mosley, Cynthia A. White, Walter Myers, Richard Hetrick, T. Raybon and S. 

Langham joined the conspiracy in place formed by the Alabama judges by taking direct action 

again[st] plaintiff to prevent him from exercising his 1st and 14th Amendment right of access to 

court.” (Id.). In February, 2010, when plaintiff was returned to FCC, defendants Thomas, 

Deloach, Mosley, Myers, and Hetrick were maintaining a law library in a 17 by 20 foot room to 

serve over twelve hundred inmates. (Id.). Plaintiff maintains that the law library was inadequate 

due to its physical size, law books not being updated, limited seating at only two folding tables, 

only two Dell computers and another computer for the inmate clerk being available at one 

folding table, and there being only a standard typewriter and a small table with a Brother word 

processor. (Id. at 9-10). Plaintiff states that “defendant” compensated for the law library’s 

inadequacy by allowing plaintiff to use the law library six days a week from 8:30 a.m. to 5:00 

p.m. (Id. at 10). 

Plaintiff alleges that his trouble began when he advised defendants White, Thomas, the 

Alabama Parole Board, and the Alabama Supreme Court that his sentence and resulting 

incarceration were illegal. (Id.). Plaintiff directed them to his case action summary sheet and the 

trial court’s sentencing order that do not show that he was sentenced pursuant to HFOA, and 

therefore he could not receive a thirty-year sentence for a Class C felony which carries only a 

ten-year maximum sentence. (Id. at 10-11). 

In 2011, plaintiff filed two original habeas corpus actions with Alabama Supreme Court, 

with the first petition being filed on April 18, 2011. (Id. at 11). In the first habeas petition, he 

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recounted the litigation history of his challenges to his thirty-year sentence under HFOA, the 

Alabama courts subsequently agreeing with his argument in other defendants’ cases, but not 

allowing him to benefit from it, and the State withholding this change in the state’s law from the 

federal court in his federal habeas corpus proceeding. (Id.). His habeas petition contained other 

arguments challenging his sentencing and resultant incarceration, some of which were previously 

described. (Id.). When the Alabama Supreme Court received his petition, the docket sheet 

reflects that Judge Wise was notified, which, plaintiff contends, began the coordinated effort by 

defendants Thomas, Deloach, Mosley, White, Myers, Hetrick, T. Raybon, and S. Langham to 

violate his First and Fourteenth Amendment right of access to the courts. (Id. at 11-12). 

Plaintiff “assumes” his case was assigned to Judge Wise. (Id. at 12). On June 23, 2011, 

an unknown judge transferred his case to Judge Welch at the Alabama Court of Appeals. (Id.). 

“Shortly before the June-23 transfer order or immediately thereafter, the defendant[s] Thomas, 

Deloach, Mosley, White, Myers, Hetrick, T. Raybon and S. Langham abruptly ordered changes 

in the law library access rules specifically designed to make it almost impossible for plaintiff to 

prosecute his habeas corpus when it was dismissed by Judge Welch on July 27, 2011.” (Id.). 

Defendants implemented new rules for the law library, which did away with access to the law 

library from 8:30 a.m. to 5:00 p.m. six days a week. (Id.). Instead, plaintiff’s access to the law 

library is scheduled for one day a week when his dorm goes. (Id.). The scheduled day is 

Monday, 8:30 a.m. to 2:30 p.m., which will be not available to him when a holiday falls on 

Monday, as the law library is now closed on holidays and on weekends. (Id.). 

Under the new rules, plaintiff must submit a written request to use the law library seven 

days beforehand and receive a written approval. (Id. at 13, 18). Defendants will then use a 

lottery system to see which prisoners will get to use the law library based on requests submitted 

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from plaintiff’s dorm and the other dorm scheduled for Monday access; the combined dorms’ 

population is 380 inmates, all of which will not fit in seventeen by twenty foot law library. (Id.

at 13).

Plaintiff asserts that access is meaningless because books are missing, books have not 

been updated since 2009 so the two computers have to be used to determine if the case is still 

good law, and computer time is limited to one hour when seven or more inmates are using the 

law library. (Id. at 13-14). In addition, defendants further hampered plaintiff’s access by 

removing the Brother typewriter, thereby leaving only a standard typewriter in the law library for 

1268 inmates to use. (Id. at 14). Defendants removed one folding table with its six chairs, 

leaving only one table with six chairs. (Id.). The Westlaw system was replaced with the Lexis

system, which limits access only to the Fifth and Eleventh Circuits, the United States Supreme 

Court, and Alabama cases. (Id. at 14-15). This reduction in cases “remove[d] completely . . . 

case law current from other circuit[s] plaintiff would rely on to support his claim in this 

complaint as well as his pending habeas corpus filed in CV-11-0648 WS-C.” (Id. at 15). 

Plaintiff listed in the amended complaint five cases from other circuits with their citations and 

holdings that he contends would support his access claims in this action, but which were 

removed in November or December 2011 to prevent plaintiff from “further researching them for 

additional case law in other circuit[s].” (Id. at 15-16). 

These new rules have created “unnecessary competition for limited law library time and 

resources[.]” (Id. at 19). Previously, plaintiff would have access to a computer when a prisoner 

leaves to eat or to go to the yard. (Id.). And under the new computer system, plaintiff in unable 

to check and read defendants’ authorities from other circuits during the years from 2004 to 2012. 

(Id. at 20).

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In addition, to these new law library rules, “defendant” ordered plaintiff’s mail to be 

monitored which caused his trial transcript from the Alabama Department of Archives, mailed in 

May, 2011, to be removed and destroyed. (Id. at 16). The transcript allegedly contained 

evidence that plaintiff’s thirty-year sentence was illegal. (Id.). It was further ordered that 

plaintiff’s mail be delayed in order to keep him from promptly requesting additional law library 

time to prevent him from responding to the July 27th dismissal of his first habeas corpus petition 

by filing an application for rehearing. (Id.). It was further ordered that plaintiff’s outgoing mail 

be delayed so he could not file his second petition for habeas corpus in the Alabama Supreme 

Court within fourteen days from the dismissal of his first habeas corpus petition. (Id.). Thus, his 

second habeas corpus petition was dismissed as untimely. (Id.). Subsequently, plaintiff was 

denied access to the law library until after the fourteen-day period for filing an application for a 

rehearing had expired. (Id.). Plaintiff’s first habeas corpus petition, its application for a 

rehearing, his second habeas corpus petition, and its application for rehearing are alleged to all 

contain “non-frivolous” claims which he was not able to present. (Id. at 17, 20). Although not 

absolutely clear, it appears that plaintiff contended that the Alabama Supreme Court’s decisions

dismissing his petitions as untimely were erroneous because under Alabama law no time limit for 

filing a habeas corpus petition exists. (Id. at 17). Plaintiff lost these arguments because 

defendants denied him access to the law library. (Id.). That is, because of the law library rule 

changes, “plaintiff[’s] two non-frivolous habeas corpus [petitions] [were] dismissed as a direct 

result[.]” (Id. at 20).

Plaintiff contends that these rules, which are the most “severe and restrict[ive]” ever 

implemented at FCC, were “designed and implement[ed] to prevent plaintiff from prosecuting 

his claims in his state court habeas corpus because they were promulgated and implement[ed] 

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and enforced immediately after plaintiff filed his first habeas corpus in the Alabama Supreme 

Court on April 18-2011 and it being transferred to the Alabama Court of Criminal Appeals for 

dismissal between June 23-2011 and July 27 -2011.” (Id. at 18). Plaintiff maintains that 

defendants’ actions were “blatant.” (Id.). 

2. Classification Allegations.

The classification claims added in the amended complaint are against defendants Kim 

Thomas, Cynthia White, Stan Dean, Bridgett Tyner, Annette Coleman, Cynthia Brown, and 

Lauren Philyaw for violating plaintiff’s procedural and substantive due process rights under 42 

U.S.C. §§ 1983, 1985, and 1986. (Id. at 21). These defendants allegedly failed to properly 

examine his record for convictions so that he could participate in programs, and after discovering 

that he was improperly barred, they failed to remove the bar. (Id. at 21, 28). 

In 1984 or 1985, plaintiff’s classification records reflected that he had three convictions 

for escape; when in reality, he only had one conviction for attempted escape from a city jail in 

1981. (Id. at 21). Plaintiff complained at that time about this erroneous information and was 

told that it would be investigated and cleared up, but his three convictions would not prevent him 

from participating in work release. (Id.). In November or December 1990, plaintiff was granted 

community custody and was assigned to work release during which he worked at Fural Daniels 

on Rangeline Road as a skilled laborer until he was released on parole in July, 1991. (Id.).

In January 2010, at Kilby Correctional Center plaintiff was told that under 2010 criteria 

for work release participation, he was ineligible due to his three escape convictions. (Id.). 

Plaintiff informed officials that he only had one conviction, which was for attempted escape. (Id. 

at 21, 28). Plaintiff was transferred to FCC in February 2010. (Id. at 22).

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During 2010, plaintiff contends his procedural due process rights were violated when he 

was not given his semi-annual progress review. (Id.). In March, 2011, when defendant Philyaw 

gave him his annual progress review, he told her that he had only been convicted on one 

attempted escape charge from a city jail in 1981, and requested that he be recommended for 

community custody and placement at a work release center. (Id.). Defendant “Philyaw 

responded, ‘What, you think I want them (classification supervisor – Central Records) to think I 

am stupid!’” (Id.).

Defendant Philyaw said that she would note his complaint, but she would recommend 

only medium custody. (Id.). Defendants Brown, White, Dean, Tyner, and Coleman approved 

the recommendation, and plaintiff was told he could appeal their decision that permanently 

barred him from work release. (Id.). Plaintiff maintains that the defendants are required by 

Alabama law to examine his convictions records and to show that he only had one conviction for 

attempted escape. (Id.). In addition, parole violators, like plaintiff, who have no new offenses 

are allowed to participate in all release programs. (Id.). 

In 2011, plaintiff was not given his semi-annual progress review, and as of March 25, 

2012, he had not been given his annual progress review. (Id. at 23). Believing that he would 

again be denied participation in the state’s programs, he wrote to defendant Kim Thomas 

explaining his position, but he has not received a response. (Id.).

For relief, plaintiff requests his motion for appointment of counsel be granted; 

reconsideration of his motion for a temporary restraining order or in the alternative for a 

preliminary injunction; a declaratory judgment that defendants violated his First and Fourteenth 

Amendment rights; an injunction requiring the submission of a plan to expand and update the 

FCC law library to accommodate the 1268 inmate population and to cease from enforcing the 

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present law library rules; an injunction requiring defendants to cease from barring him from 

participating in minimum and community custody; an order barring defendants from retaliating 

against him for filing this lawsuit; an award of compensatory and punitive damages; and any 

other relief to which he is entitled as a matter of law. (Id. at 37). 

II. Analysis.

In response to the Court’s order requiring that he file a superseding amended complaint 

and to show cause why this action should not be counted as a strike, plaintiff filed a motion for 

reconsideration, which contains his response to the show cause order. (Doc. 17 at 13). He 

informs the Court that “‘[w]hen [he] read the sanction portion of this Court order[,] he was 

reminded of law clerks for judges in state court writing orders in judges[’] names, the judges 

never seeing the order resulting in a situation like plaintiff being entitled to relief denied by a law 

clerk because he think the prisoner don’t really understand the law.” (Id. at 12). After making 

other statements of the same tenor, plaintiff concluded by stating that “it[’]s a fact, that not once 

in any complaint [he has] filed since 1986 has [he] sought to mislead this Court or any court in 

[his] litigation, nor did [he] intentionally or otherwise leave out information on a court form 

asked of [him].” (Id. at 13). Plaintiff admits that the Court is “correct” that he did not include all 

of his prior lawsuits, and he asserts that “the omission is an honest mistake” as he was preparing 

the 168-page complaint and contends that he should be allowed one mistake or to correct his one 

mistake as Rule 11 would allow him twenty-one days after notice. (Id.). He seeks to amend his 

original complaint to provide the omitted information even though he is unsure that he 

remembers every case. (Id.). He further states that after examining the law in relation to § 

1915, he cannot “honestly be accused of abuse of the judicial process [as] not a single complaint 

plaintiff has filed been frivolous in the true sense of the word or fail to state a claim, these 

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term[s] [were] applied in only one case plaintiff filed in this court . . . [because] plaintiff filed his 

claims in the wrong form[.]” (Id. at 14-15). 

Plaintiff’s motion to reconsider was denied. (Doc. 18). Thereupon, plaintiff filed his 

amended complaint in which he added information about some of his prior lawsuits. (Doc. 19 at 

3-5). Plaintiff listed approximately five prior actions and vaguely alluded to more actions. The 

vague information about other lawsuits is not beneficial to the Court in screening his amended 

complaint. In screening a complaint under 28 U.S.C. § 1915(g), a court is “involve[d] in more 

than sophomoric arithmetic [as c]ourts 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, . . . the reason for the dismissals[.]” Rivera v. Allin, 144 F.3d 719, 726 (11th Cir. 

1998), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 215-17 (2007). Interestingly, 

plaintiff’s listing only shows one action that was dismissed for failure to state a claim, Hines v. 

Davidson, CA 87-0555-BH-M (S.D. Ala. Sept. 29, 1987) (action against criminal defense 

counsel was frivolous), when he also had an appeal in another action that was dismissed as 

frivolous, Hines v. J. O. Davis, CA 84-0932-BH-B (S.D. Ala. Nov. 27, 1984). Furthermore, 

plaintiff did not inform the Court that at the time he filed the present action that he 

contemporaneously filed an “independent action and/or motion to set aside judgment,” which 

was treated as a habeas petition and eventually dismissed as a successive petition. See Hines v. 

White, CA 11-0648-WS-C (S.D. Ala. 2012), denying certificate of appealability No. 12-13732-E 

(11th Cir. Mar. 1, 2013). In the contemporaneous habeas, plaintiff challenged his thirty-year 

sentence under HFOA. And plaintiff reveals in the present action that he is also challenging his 

sentence. See Doc. 17 at 11 (“Plaintiff does not believe his case is rare what is rare is a prisoner 

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understand[ing] Lewis and understanding that under certain circumstances claims that normally 

would be examined under habeas corpus can also be examined in the context of 1983[.]”).7 

Even though plaintiff claims not to have intentionally misled the Court, his omission of a 

substantial portion of the requested information is clearly intentional and has caused the Court 

additional work in determining if he comes within the scope of 28 U.S.C. § 1915(g)’s threestrike rule. The Court will show flexibility in regard to the information provided in that every 

scintilla of information requested by the complaint form is not absolutely necessary, but basic 

identifying information of prior cases and their holdings are. In his amended complaint in which 

 7 The entirety of plaintiff’s quote from his motion for reconsideration reads:

Plaintiff does not believe his case is rare what is rare is a prisoner 

understand[ing] Lewis and understanding that under certain circumstances 

claims that normally would be examined under habeas corpus can also be 

examined in the context of 1983 of the claim is not raised seeking habeas 

corpus relief, but is offer[ed] for the sole purpose of showing that he had a 

non-frivolous claim that was dismissed on habeas corpus as the result of 

the defendant[’s] action in this case, and because of those action[s], 

plaintiff was actually injured. Though the court may like to bring those 

facts that would support habeas corpus relief under 2254 within that 

realm, its placement is proper in plaintiff[’s]1983 complaint and he 

move[s] the court to withdraw that part of its order requiring that plaintiff 

raise these claims in habeas corpus, under the facts in plaintiff case, the 

facts can be examined under 1983 in the context of whether plaintiff 

dismissed habeas corpus contained a non-frivolous claim to show actual 

injur[y] under Lewis and in the context of 2254 to determine whether 

plaintiff[’s] 30 years sentence is illegal and by extension his incarceration. 

Doc. 17 at 11. The Court notes that although plaintiff would like the Court, when ruling on his access-tocourts claims, to examine his sentencing claims, the decision in Heck v. Humphrey, 512 U.S. 477, 114 

S.Ct. 2364, 129 L.Ed.2d 383 (1994), more than likely would come into play. Burd v. Sessler, 702 F.3d 

429, 434 (7th Cir.), pet. for cert. filed, No. 12-9831 (Mar. 15, 2013) (“If the injury in question is losing 

the underlying case, then Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), 

comes into play. Heck holds that a damages remedy that necessarily implies the invalidity of a criminal 

conviction (or the loss of good-time credits, see Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 

L.Ed.2d 906 (1997)) is impermissible while that conviction stands.”).

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he attempted to identify about five of his cases,8 plaintiff did not provide sufficient information 

in regard to one case and mentions that he may have filed other cases.9 

However, in reading plaintiff’s claims, it is apparent that plaintiff had information about 

some of his prior cases as he refers to some of these cases and their holdings in his allegations. 

Plaintiff should have listed his federal and state court cases, but he did not, even though he had 

the ability to comply. Moreover, the litigation history of his criminal sentence would have been 

more concisely and clearly conveyed if he had responded appropriately to the complaint form’s 

questions and to the Court’s March 29, 2012 order that he complete the Court’s § 2254 petition 

form. (Doc 16). Instead of completing the Court’s habeas form, he asks that the Court’s order 

requiring its completion be stayed and asserts that he is not bringing habeas claims in this action. 

(Doc. 17 at 11, motion for reconsideration). The Court will accept that he is not seeking habeas 

relief in this action, particularly in light of the fact that he filed an action, Hines v. White, CA 11-

 8

 Plaintiff provides these five cases in response the complaint form’s question inquiring about other 

lawsuits that he filed in state and federal court relating to his imprisonment. Whereas, he gave a negative 

response to the form’s other question concerning whether he filed lawsuits in state or federal court about 

the same or similar facts involved in this action when he should have responded in the affirmative. That 

is, he states that he is claiming that a substantial part of this action is his challenge to the constitutionality 

of his criminal sentence, which he has brought before numerous courts, although he may not have 

previously litigated the present state of FCC’s law library and its impact on his access to the courts.

9 The Report and Recommendation that was served on Mr. Hines in 2003 established that his 

litigation history includes Hines v. Hawsey, CA 02-574-CB-S (S.D. Ala. Sept. 29, 2004); Hines v. 

Davidson, CA 87-0555-BH-M (S.D. Ala. Sept. 29, 1987); Hines v. Dove, CA 84-1338-BH-B (S.D. Ala. 

Dec. 14, 1984); Hines v. J. O. Davis, CA 84-0932-BH-B (S.D. Ala. 1984); Hines v. Castle, CA 83-1366-

BH-B (S.D. Ala. Dec. 7, 1983); Hines v. Dove, CA 84-0808-BH-B (S.D. Ala. Oct. 30, 1984); Hines v. 

Davis, CA 84-1395-BH-C (S.D. Ala. Dec. 7, 1984); Hines v. Davis, 85-0827-CB-M (S.D. Ala. June 7, 

1989); Hines v. Davis, CA 86-0234-BH-C (S.D. Ala. June 1, 1989); Hines v. Johnson, CA 86-0357-BHM (S.D. Ala. Dec. 5, 1988); Hines v. Dove, CA 86-0405-P-S (S.D. Ala. Jan. 22, 1987); Hines Davis, CA 

86-0999-CB-M (S.D. Ala. Oct. 24, 1989). The Court notes that upon review of the report and 

recommendation in Hines v. Hawsey, supra, the listed case of Hines v. Judge Key, CA 85-0853-BH-S 

(S.D. Ala. Oct. 18, 1985), appears to have been filed by another person, Thomas Cleve Hines. Even after 

Mr. Hines was clearly directed to file a superseding amended complaint, he only attempted to list five of 

these actions, one of which is not clearly identifiable.

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0648-WS-C, contemporaneously with the present action that was treated as a habeas petition, 

albeit a successive petition. (Doc. 19).

However, the Court finds that plaintiff was more concerned with surrounding his 

challenge to his thirty-year sentence with as much information as possible at one time by filing 

his inordinately lengthy complaint with its related filings (Docs. 1-8) and by filing his 

contemporaneous habeas petition,10 than providing the Court with information that it needs in 

every pro se prisoner case where a request to proceed as a pauper has been filed. As manifested 

by plaintiff’s allegations in this action and his habeas action, and his handling thereof, he is well 

versed in the filing/litigating lawsuits and in conducting legal research. The manner in which 

plaintiff is conducting the litigation of his claims indicates to the Court that obtaining a favorable 

ruling on his claims is just one of his purposes. This conclusion is based on plaintiff’s nonresponsiveness to the Court’s order requiring that he file a completed habeas petition form and a 

“short and plain statement,” and on his responses to the complaint form’s questions, the tenor of 

his objection, and his persistence in filing challenges to his criminal sentence even after he has 

been told he could not again a file a habeas petition attacking his sentence. Furthermore, he 

maintains in his motion that he cannot file a short and plain statement of his claim because 

“defendants ha[ve] made it impossible” as he has no idea who is responsible for the law library 

at FCC; thus, he cannot single out one person against whom he can make a short and plain 

 10 After the Eleventh Circuit Court of Appeals denied plaintiff’s application for leave to file a 

second or successive habeas petition, he filed an “Independent Action/And or Motion to Set Aside 

Judgment” in Hines v. White, CA 11-0648-WS-C, (Doc. 15 at 6, Report and Recommendation, May 24, 

2012). Notwithstanding plaintiff’s effort to avoid filing a habeas action, this action was construed as a 

successive habeas action (Docs. 15, 19, 28 at 4, n.2), and was dismissed by this Court as such because no 

fraud on the court was found based on an allegation that the Assistant Attorney General did not advise his 

previous federal habeas court of a State court decision that he considered critical to his claims. (Docs. 28, 

32, 37).

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statement and thereby reduce the length of his complaint.11 (Doc. 17 at 2). In sum, plaintiff’s 

conduct in this action is conduct that courts have deemed abusive, and for which, courts have 

imposed the double sanction dismissing the action without prejudice and counting the dismissal 

as a strike on the ground of being malicious. 

Section 1915(e)(2)(B)(i) provides that an action shall be dismissed if the action is found 

to be malicious. An action is deemed malicious under § 1915(e)(2)(B)(i) when a prisoner 

plaintiff affirmatively misrepresents his prior litigation history on a complaint form requiring

disclosure of such history and signs it under penalty of perjury, as such a complaint “constitutes 

abuse of the judicial process warranting dismissal of the case without prejudice.” Thompson v. 

Quinn, No. 3:11cv533/RV/EMT, 2012 WL 6761569, at *1 (N.D. Fla. 2012) (unpublished) 

(collecting cases), adopted, 2013 WL 45259 (N.D. Fla. Jan. 2, 2013); see Rivera, 144 F.3d at 731 

(finding an action that had been dismissed for abusing the legal process because an inmate lied 

under penalty of perjury about a prior lawsuit to be malicious); Harris v. Warden, No. 11-14690, 

2012 WL 5907451, at *1 (11th Cir. 2012) (unpublished) (dismissing without prejudice an action 

for an abuse of process where the inmate failed to disclose his litigation history in his original 

and amended complaints even though the form complaint described the type of cases he was 

bound to disclose); Jackson v. Florida Dep’t of Corr., 491 F. App’x 129, 132 (11th Cir. 2012) 

(unpublished)12 (affirming the dismissal without prejudice of inmate’s action as malicious 

because he abused the judicial process when under penalty of perjury he represented in his 

complaint that he had not had an action dismissed prior to service of process, whereas he had 

 11 The Court agrees with plaintiff’s admission that his amended complaint is not a “short and plain” 

statement.

12 “Unpublished opinions are not considered binding precedent, but they may be cited as persuasive 

authority.” 11TH CIR. R. 36-2 (2005).

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two, one of which was contained in the complaint but not in the section inquiring about such 

cases), cert. denied, 2013 WL 1788095 (Apr. 29, 2013) (No. 12-8885); Redmon v. Lake County 

Sheriff’s Office, 414 F. App’x 221, 223, 225-26 (11th Cir. 2011) (unpublished) (affirming the 

dismissal without prejudice of the inmate’s action signed under penalty of perjury which was 

found to be abusive when he did not disclose a lawsuit that he filed when the complaint form 

asked for disclosure of all lawsuits relating to his imprisonment or conditions of imprisonment, 

regardless of his response that he did not understand the form); Shelton v. Rohrs, 406 F. App’x 

340, 340 (11th Cir. 2010) (unpublished) (affirming the dismissal without prejudice of the 

inmate’s complaint under § 1915(e)(2)(B)(i) for an abuse of process after he checked “no” to the 

complaint form’s question asking if he had filed other actions in state or federal court because 

the case management system reflected he had filed four actions and he would have known that he 

had filed multiple actions, thereby rejecting his argument that he did not remember filing any 

civil actions and his records were inaccessible); Young v. Secretary Fla. Dep’t of Corr., 380 F. 

App’x 939, 940 (11th Cir. 2010) (unpublished) (affirming the sua sponte dismissal of the 

inmate’s action pursuant § 1915(e)(2)(B)(i) for an abuse of process when he did not disclose his 

prior lawsuits in spite of his argument that he no longer has access to the documents so he could 

answer fully due to the rule regarding “excess legal material”); Hood v. Tompkins, 197 F. App’x 

818, 819 (11th Cir. 2006) (unpublished) (affirming the dismissal of an inmate’s § 1983 action for 

an abuse of process because he responded with “no” to the complaint form’s question asking 

whether he has brought any other lawsuits dealing with facts other than those in his action 

because he had in fact brought other lawsuits and the question was not ambiguous; “the district 

court was correct to conclude that to allow Hood to then acknowledge what he should have 

disclosed earlier would serve to overlook his abuse of the judicial process”).

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In the present action, the Court finds that the information requested was available to 

plaintiff and he chose not to provide it to the Court and then knowingly signed the complaint and 

amended complaint under penalty of perjury. Even though plaintiff asserts that the omission of 

his prior actions was an honest mistake, the Court finds that it was intentional in that he was 

interested in putting forward what he thought would insulate his action from dismissal instead of 

providing the information required by the Court. Furthermore, plaintiff argues that if the 

opinion in Pinson v. Grimes, 391 F. App’x 797 (11th Cir.), cert. denied, 131 S.Ct. 527 (2010), 

which the Court cited in its order and which is unavailable to him, is relied on it will create a 

conflict in the circuits in light of the decisions in Boles v. Matthews, 173 F.3d 854 (6th Cir. 

1999), and Yellen v. Mueller, 61 F. App’x 446 (9th Cir.), cert. denied, 537 U.S. 1237 2003). 

(Doc. 17 at 15). A review of these decisions cited by plaintiff shows that the Boles court 

reversed a district court’s finding of three strikes because two of the strikes were based on 

appeals that were dismissed for failure to prosecute. Boles, 173 F.3d at *4. Similarly, in Yellen, 

the court vacated a § 1915(g) dismissal because one of the strikes was based on an appeal that 

was dismissed for failure to prosecute which is not a ground listed in § 1915(g). Yellen, 61 F. 

App’x at *447. 

Yellen and Boles are not in conflict with Pinson, which relies on the binding Eleventh 

Circuit case of Rivera, 144 F.3d 719, supra, because they stand for a different proposition than is 

at issue, which the Pinson and Rivera courts address. The district court in Rivera counted as a 

strike a lawsuit where the plaintiff was found to have abused the judicial process when under 

penalty of perjury he lied about the fact that there was a previous lawsuit. Id. at 731. In 

affirming the district court’s treatment, the Rivera court reasoned that “[a]lthough the district 

court may not have uttered the words ‘frivolous' or ‘malicious,’ dismissal for abuse of the 

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judicial process [was] precisely the type of strike that Congress envisioned when drafting section 

1915(g). E.g., Roller, 107 F.3d at 234 (Congress sought to curtail “abuse of the federal judicial 

system[.]”).” Id. Relying on Rivera, the Pinson court affirmed the district court’s issuance of a 

strike based on its finding that the plaintiff abused the judicial process when he failed to list in 

his complaint signed under penalty of perjury two federal cases that he had filed within a month 

of filing the present action. Pinson, 391 F. App’x at 799. 

Rivera and Pinson counted as strikes actions where the district court found an abuse had 

occurred when the plaintiff did not list all of the actions that he had previously filed in a 

complaint signed under of penalty of perjury. Based upon the foregoing reasons, it is 

recommended that a sanction be imposed against plaintiff for being untruthful in his complaint

signed under of penalty. (Doc. 1) The Court finds that his conduct is abusive and that it 

continued when plaintiff filed his amended complaint. (Doc. 19). Inasmuch as plaintiff caused 

more work for the Court and is proceeding pro se and in forma pauperis, the Court finds that a 

reasonable sanction is to count this action as a strike for § 1915(g) purposes, in that it is 

malicious,13 and to dismiss this action without prejudice.

 13 If plaintiff’s true intention in filing this action is that he wants the Court to rule on the 

constitutionality of his criminal sentence, the Court questions whether the very fact of filing this action is 

malicious. How many times can a plaintiff challenge a criminal sentence until his persistence is deemed 

malicious and harassing? See Lynn v. McClain, 12 F. App’x 676, 679 (10th Cir. 2001) (warning an 

inmate who had filed three habeas actions before exhaustion of his state court remedies had occurred and 

after he had challenged his conviction in § 1983 actions that “continuing to engage in a pattern of 

litigation activity which is manifestly abusive will result in additional filing restrictions, applicable to any 

type of civil case”) (citations, quotation marks, and alterations omitted); see also Miles v. Williams, CA 

No. 2:12-CV-910-TMH, 2012 WL 6923805 (M.D. Ala. Dec. 14, 2012) (dismissed as malicious the 

repeated filing of a condition of confinement claim, putting glass in his grits); Stepp v. King, CA No. 

2:09cv383-WHA, 2009 WL 1370918 (M.D. Ala. May 13, 2009) (dismissing as malicious plaintiff’s 

second action that was duplicative of his pending action that contained the same claims regarding the 

application of the Community Offender Act to him and sued the same defendant).

In enacting the screening provisions for in forma pauperis actions, 28 U.S.C. § 1915(e)(2)(B) 

(formerly § 1915(d)),

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III. Conclusion.

Based upon the foregoing reasons, it is recommended that this action be dismissed 

without prejudice as malicious prior to service of process, pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). It is further recommended that the dismissal of this action be counted as a 

strike under 28 U.S.C. § 1915(g).

IV. Notice of Right to File Objections.

A copy of this report and recommendation shall be served on all parties in the manner 

provided by law. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with 

the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. 

In order to be specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this 13th day of June, 2013. 

 

 

Congress recognized, however, that a litigant whose filing fees and court costs 

are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain 

from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or 

captious litigation, § 1915(d) [now § 1915(e)(2)] authorizes federal courts to dismiss a 

claim filed in forma pauperis “if the allegation of poverty is untrue, or if satisfied that the 

action is frivolous or malicious.” Dismissals on these grounds are often made sua sponte

prior to the issuance of process, so as to spare prospective defendants the inconvenience 

and expense of answering such complaints. 

Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989) (emphasis 

added).

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s/ WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

 

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