IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID MALONE, #175140, :

Plaintiff, :

vs. : CIVIL ACTION 14-576-KD-M

ROBERT BENTLEY, 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 

together with a Motion to Proceed Without Prepayment of Fees. 

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 careful consideration of the pleadings, it is 

recommended that this action be dismissed without prejudice, 

prior to service of process, pursuant to 28 U.S.C. § 

1915(e)(2)(B)(i) as malicious and that this action be counted as 

a strike for the purposes of 28 U.S.C. § 1915(g).

I. Posture of Action.

Plaintiff’s action comes before the Court for screening 

pursuant 28 U.S.C. § 1915(e)(2)(B) due to Plaintiff having filed 

a Motion to Proceed Without Prepayment of Fees. (Doc. 2). This 

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section provides for the dismissal of an action that is found to 

be malicious. 28 U.S.C. § 1915(e)(2)(B)(i). 

Plaintiff used the Court’s § 1983 complaint form, as he is 

required to do, when he commenced this § 1983 action against 

several Defendants. (Doc. 1). In response to the complaint 

form’s questions asking whether he had filed other lawsuits in 

state or federal court with the same or similar facts involved 

in this action and whether he had filed other lawsuits in state 

or federal court relating to his imprisonment, Plaintiff 

answered affirmatively. (Id. at 3). The complaint form 

required that Plaintiff list these lawsuits. Plaintiff 

identified only one lawsuit, Malone v. President Barak Obama,

2:14-cv-331-MEF (M.D. Ala. July 22, 2014), which was dismissed 

for his failure to pay the partial filing fee. (Id. at 3-4). 

Plaintiff then signed his Complaint under penalty of perjury 

stating that the facts in his Complaint were true and correct. 

(Id. at 8).

II. Analysis.

A. Legal Standards.

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 the complaint form under penalty of 

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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. Dec. 4, 2012) (unpublished) (collecting cases), 

adopted, 2013 WL 45259 (N.D. Fla. Jan. 2, 2013); see Rivera v. 

Allin, 144 F.3d 719, 731 (11th Cir. 1998) (upholding counting as 

a strike under § 1915(g) an action that was dismissed for an 

abuse of legal process when the inmate lied under penalty of 

perjury about a prior lawsuit), overruled on other grounds by 

Jones v. Bock, 549 U.S. 199, 215-17 (2007); Schmidt v. Navarro,

576 F. App’x 897, 898-99 (11th Cir. 2014) (unpublished) 

(affirming the dismissal without prejudice of action pursuant to 

§ 1915(e)(B)(2)(i) as malicious as a sanction for the 

plaintiff’s abuse of process when he failed to disclose under 

penalty of perjury two prior federal actions on his complaint 

form);1 Harris v. Warden, 498 F. App’x 962, 964 (11th Cir. 2012) 

(unpublished) (dismissing without prejudice an action for abuse 

of process when 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 Corrs., 491 F. App’x 129, 

 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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132 (11th Cir. 2012) (unpublished) (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 no 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 (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, 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 

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inaccessible); Young v. Secretary Fla. Dep’t of Corrs., 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 despite his argument that he lacked 

access to the documents due to the “excess legal material” 

rule); 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 had 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”). Furthermore, when a court dismisses without 

prejudice an action that it finds malicious, it must consider 

whether the action may be re-filed or if the dismissal without 

prejudice is effectively a dismissal with prejudice due to the 

statute of limitations preventing the plaintiff from re-filing 

the action. Stephenson v. Warden, 554 F. App’x 835, 838 (11th 

Cir. 2014) (unpublished); see Schmidt, 576 F. App’x at 899 

(affirming the dismissal without prejudice of an action as 

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malicious, based on plaintiff’s failure to advise of prior 

lawsuits as required by the complaint form, because the 

complaint could be re-filed as the statute of limitations had 

not expired).

B. Application of Law to Facts.

In the present Complaint, Plaintiff indicated that he 

previously filed in state or federal court actions that

contained the same or similar facts as those in the present 

action and actions that relate to his imprisonment. (Doc. 4 at 

3). Plaintiff then provided identifying information for only 

one action that he filed, Malone v. President Barack Obama,

2:14-cv-331-MEF (M.D. Ala. July 22, 2014).

However, an examination of PACER (“Public Access to Court 

Electronic Records”) reflects two other actions that he filed in 

addition to the action that he listed.2 Malone v. Lambert, CA 

No. 07-510-CG-C (S.D. Ala. Oct. 31, 2007) (dismissed for failure 

to prosecute); Malone v. Wynne, CA No. 10-531-TMH-WC (M.D. Ala. 

June 6, 2013) (dismissed on defendants’ summary judgment 

motion). In addition, Plaintiff previously filed three habeas 

petitions, Malone v. Mosley, CA No. 99-459-WHA-VPM (M.D. Ala. 

Jan. 5, 2001) (barred by the statute of limitations); Malone v. 

 2 The Court takes judicial notice of its records. Nguyen v. 

United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009). 

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Alabama, CA No. 08-305-CG-C (S.D. Ala. Aug. 18, 2008) (dismissed 

for failure to prosecute); and Malone v. Alabama, CA No. 08-508-

TMH-WC (M.D. Ala. Sept. 9, 2008) (dismissed as a successive 

petition).

In Rivera, supra, the Eleventh Circuit affirmed the 

district court’s dismissal of the prisoner’s action without 

prejudice as a sanction for “abus[ing] the judicial process” 

when he lied under penalty of perjury about the existence of a 

prior lawsuit, and the district court’s treatment of the 

dismissal as a strike. 144 F.3d at 731. In its affirmance, the 

Eleventh Circuit reasoned that “[a]lthough the district court 

may not have uttered the words ‘frivolous’ or ‘malicious,’ 

dismissal for abuse of the judicial process is precisely the 

type of strike that Congress envisioned when drafting section 

1915(g).” Id. In the subsequent case of Pinson v. Grimes, 391 

F. App’x 797 (11th Cir.) (unpublished), cert. denied, 131 S.Ct. 

517 (2010), the Eleventh Circuit, relying on Rivera, affirmed 

the district court’s “finding an abuse of judicial process and 

issuing a strike” when the prisoner had only listed two prior 

cases despite having filed two other federal cases within the 

preceding month. Id. at 799.

When Plaintiff filed the present action, he knowingly chose 

not to list the majority of his previously filed actions. 

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Nonetheless, he proceeded to sign his Complaint under penalty of 

perjury. (Doc. 1 at 8). This type of behavior by a prisoner 

plaintiff is deemed by the courts to be an abuse of the judicial 

process so as to warrant the action’s dismissal as malicious 

pursuant to § 1915(e)(2)(B)(i) and to it being counted as a 

strike for § 1915(g) purposes. Rivera, supra; Pinson, supra. 

Inasmuch as Plaintiff identifies October 26, 2014, as the date 

the complained of incident occurred, the two-year statute of 

limitations for bringing a § 1983 claim in Alabama has not 

expired.3 See Lufkin v. McCallum, 956 F.2d 1104, 1105, 1108 n.2 

(11th Cir.), cert. denied, 506 U.S. 917 (1992); ALA. CODE § 6-2-

38(l). Accordingly, the Court finds that Plaintiff’s action is 

malicious and recommends that it be dismissed without prejudice. 

III. Conclusion.

Based upon the foregoing reasons, it is recommended that 

this action be dismissed without prejudice, prior to service of 

process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as malicious 

and that this action be counted as a strike for the purpose of 

28 U.S.C. § 1915(g).

NOTICE OF RIGHT TO FILE OBJECTIONS

 3 Plaintiff’s conditions-of-confinement claims arose while he was 

incarcerated at Mobile Work Center. (Doc. 1 at 5-6). Since 

filing the Complaint, Plaintiff notified the Court on February 

18, 2015, that he has been transferred to Atmore Work Center. 

(Doc. 5 at 1). 

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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. 

The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013). 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 26th day of March, 2015. 

s/ BERT W. MILLING, JR.

 UNITED STATES MAGISTRATE JUDGE

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