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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DONNIE E. SHROPSHIRE, *

 *

 *

 Plaintiff, *

 *

vs. * CIVIL ACTION NO. 15-00073-KD-B

 *

STANDARD FURNITURE COMPANY, *

*

 Defendant. *

REPORT AND RECOMMENDATION

 Plaintiff Donnie Shropshire, an Alabama inmate who is 

proceeding pro se, commenced this action by filing a complaint 

pursuant to 42 U.S.C. § 1983 (Doc. 1), along with a motion to 

proceed without prepayment of fees (Doc. 2). Shropshire’s 

motion has been referred to the undersigned for a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 

Rule 72.2(c)(4). For the reasons set forth below, it is 

recommended that Shropshire’s motion be DENIED and that this 

action be DISMISSED without prejudice pursuant to 28 U.S.C. § 

1915(e)(2)(B)(i).

Section 1915(e)(2)(B)(i) provides that an action shall be 

dismissed if the action is found to be malicious. 28 U.S.C. § 

1915(e)(2)(B)(i). An action is deemed malicious under § 

1915(e)(2)(B)(i) when a prisoner plaintiff affirmatively

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misrepresents his prior litigation history on a complaint form 

requiring disclosure of such history and signs it under penalty 

of perjury. Such a misrepresentation “constitutes abuse of the 

judicial process warranting dismissal of the case without 

prejudice.” Thompson v. Quinn, 2012 U.S. Dist. LEXIS 183282, * 3, 

2012 WL 6761569, at *1 (N.D. Fla. December 4, 2012)

(unpublished) (collecting cases), adopted, 2013 WL 45259 (N.D. 

Fla. Jan. 2, 2013); Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 

1998) overruled on other grounds by Jones v. Bock, 549 U.S. 199, 

215, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) (upholding a 

1915(g) strike in an action where an inmate was dismissed for 

abusing the legal process because he lied under penalty of 

perjury about a prior lawsuit); Harris v. Warden, 498 F. App’x 

962 (11th Cir. 2012) (unpublished) (dismissing without prejudice 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Corr., 491 F. App’x 129, 132 (11th Cir. 2012) (unpublished) 1

(affirming the dismissal without prejudice of inmate’s action as 

 

1 “Unpublished opinions are not considered binding precedent, but 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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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 process, whereas he 

had two, one of which was contained in the complaint but not in 

the section inquiring about such cases), cert. denied, 133 S. 

Ct. 2050, 185 L. Ed. 2d 890 (Apr. 29, 2013); 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 (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. Sec’y Fla. Dep’t of Corr., 380 F. App’x 

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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; “[T]he 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.”).

This Court has taken judicial notice of its records, which 

reveal that Shropshire failed to disclose his inmate litigation 

history, including Shropshire v. Toney, Case No. 10-00470-CB-N 

(Alabama Southern District – Filed: August 30, 2010).2

 

2 The Court’s records reflect that in addition to the abovereferenced action, Shropshire also filed another action on June 

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In the present action, the Court finds that the court 

required form complaint completed by Shropshire in this action 

expressly requested information regarding his litigation history, 

and notwithstanding the fact that the requested information was 

available to him, he chose not to provide it to the Court. 

Shropshire represented that he has not filed any lawsuits 

relating to his imprisonment and then knowingly signed his

complaint under penalty of perjury. However, mere weeks before 

signing the instant complaint, a bench trial was conducted in 

Shropshire v. Toney, Case No. 10-00470-CB-N, and on January 21, 

2015, judgment was entered in favor of Shropshire.(See 

Shropshire v. Toney, Case No. 10-00470-CB-N (Docs. 106, 107)). 

Notwithstanding, Shropshire failed to list the Toney action in 

completing his complaint in this case.3

 

9, 2011, styled Shropshire v. Toney, Case No. 11-00304-CB-N 

(Alabama Southern District). Because the issues raised in Case 

No. 11-00304 were duplicative of those raised in Case No. 10-

00470-CB-N, the two cases were consolidated. 

3 In addition to not including the Toney action in his litigation 

history, Shropshire’s application to proceed without prepayment 

of fees (Doc. 2) makes absolutely no mention of the fact that he 

was awarded $2000 in the Toney action mere weeks before filing 

his application with the Court. Interestingly, the prison 

account record attached to Shropshire’s application is not 

signed by a prison official, nor does it reflect the activity in 

Shropshire’s prison account for the six month period immediately

proceeding the filing of this action. 

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In Rivera, supra, the district court determined that where 

the plaintiff had abused the judicial process, when under 

penalty of perjury, he lied about his prior litigation history, 

it was appropriate to accord him a "strike" for purposes of 

future IFP eligibility. Rivera, 144 F.3d at 731. In affirming 

the district court’s award of a strike against the prisoner 

plaintiff, the Rivera court reasoned that “[a]lthough the 

district court may not have uttered the words ‘frivolous’ or 

‘malicious,’ dismissal for abuse of the judicial process [was] 

precisely the type of strike that Congress envisioned when 

drafting section 1915(g). Congress sought to curtail “abuse of 

the federal judicial system[.]” Id. (internal citations and 

quotations omitted). Relying on Rivera, the Eleventh Circuit, 

in Pinson v. Chipi, affirmed the district court’s issuance of a 

strike based on its finding that the plaintiff abused the 

judicial process when, in signing his complaint under penalty of 

perjury, he failed to list two prior federal cases that he had 

filed within a month of filing the present action. Pinson v. 

Chipi, 2011 U.S. App. LEXIS 26553 (11th Cir. Feb. 2, 2011). 

In both Rivera and Pinson, the courts found that failing to 

comply with court rules requiring disclosures about a

plaintiff's previous litigation constitutes an abuse of the 

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judicial process and in such situations, it is appropriate to 

assign a strike for purposes of future IFP eligibility. 

Accordingly, because Shropshire knowingly misrepresented his 

litigation history in his complaint, which was signed under of 

penalty of perjury (Doc. 1), it is recommended that his 

Application to Proceed Without Prepayment of Fees (Doc. 2) be 

DENIED, that this action be DISMISSED without prejudice pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(i), and that this action be counted 

as a strike for purposes of future IFP eligibility under § 

1915(g), in that it is malicious.

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 

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by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 6th day of March, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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