IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GUS JOHNSON, # 108854, :

Plaintiff, :

vs. : CIVIL ACTION 15-4-WS-C

A. PACHEO, 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 complaint, 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) and 1915A(b)(1) as malicious and that 

this action be counted as a strike for the purpose 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) and 1915A(a) due to plaintiff having filed a motion to proceed 

without prepayment of fees. (Doc. 2). These sections provide for the dismissal of 

an action that is found to be malicious. 28 U.S.C. §§ 1915(e)(2)(B)(i) & 

1915A(b)(1). 

Plaintiff used the Court’s § 1983 complaint form when he commenced this 

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 1 of 7
2

§ 1983 action. (Doc. 1). In response to the complaint form’s question, he stated 

that he had not filed other lawsuits in state or federal court with the same or 

similar facts involved in this action. (Id. at 3). But in response to the question 

whether he had filed other lawsuits in state or federal court relating to his 

imprisonment, he identified one lawsuit, Johnson v. Alabama State Board of Pardons 

and Paroles, CA No. 2:13-cv-00494-TMH (M.D. Ala. pending). (Id.). Plaintiff then 

signed his complaint under penalty of perjury stating that the facts in his 

complaint were true and correct. (Id. at 7).

II. ANALYSIS.

A. Legal Standards.

An action is deemed malicious under § 1915(e)(2)(B)(i) and § 1915A(b)(1) 

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(unpublished) (collecting cases), adopted, 2013 WL 45259 (N.D. Fla.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

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 2 of 7
3

penalty of perjury two prior federal actions on his complaint form);1Harris 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, 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 

 1 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11TH CIR. R. 36-2 (2005).

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 3 of 7
4

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

lawsuits as required by the complaint form, because the complaint could be refiled as the statute of limitations had not expired).

B. Application of Law to Facts.

In the present complaint, plaintiff indicates that he previously filed one 

other lawsuit in federal court that relates to his imprisonment. See Johnson v. 

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 4 of 7
5

Alabama Bd. of Pardons & Paroles, CA No. 13-494-WHA-CSC (M.D. Ala. pending) 

(habeas); (Doc. 1 at 3). However, an examination of PACER (“Public Access to 

Court Electronic Records”) shows that plaintiff has filed six other actions, 

namely, Johnson v. Davis, CA No. 84-855-C-S (S.D. Ala. Jan. 28, 1985) (habeas), 

aff’d (11th Cir. Mar. 18, 1985);2 Johnson v. Smith, CA No. 86-559-H-S (S.D. Ala. Oct. 

22, 1987) (§ 1983 – voluntary dismissal); Johnson v. Shinbaum, CA No. 87-721-P 

(S.D. Ala. Feb. 8, 1988) (§ 1983 - transferred); Johnson v. Sneed, CA No. 94-1649-

ID-JLC (M.D. Ala. Dec. 28, 1995) (§ 1983- summary judgment for defendants); 

Johnson v. Alabama Bd. of Pardons & Paroles, CA No. 95-886-MHT-JLC (M.D. Ala. 

Feb. 26, 1996) (§ 1983 – summary judgment for defendants); and Johnson v. 

Corizon Medical Provider, CA No. 14-05-CG-C (S.D. Ala. Feb. 6, 2014) (§ 1983 -

voluntary dismissal).

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 

 2 The Court takes judicial notice of its records. Nguyen v. United States, 556 F.3d 

1244, 1259 n.7 (11th Cir. 2009). 

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 5 of 7
6

“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. Nonetheless, plaintiff proceeded to sign 

the present complaint under penalty of perjury. (Doc. 1 at 10). 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 August 10, 2014 as the date 

for the complained of incident,3 the two-year statue of limitations for bringing a § 

1983 claim in Alabama has not expired. 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). 

Therefore, plaintiff may re-file this action if he so elects. 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) and 1915A(b)(1) as malicious and that this action be counted as a 

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

 3 This is the date when another inmate assaulted plaintiff at J. O. Davis 

Correctional Facility. Plaintiff claims that defendants failed to provide and 

adequate security and will not prosecute his assailant. The Court notes that 

ADOC officials institute disciplinary proceedings and a county district attorney 

brings criminal prosecutions.

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 6 of 7
7

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. 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 and ORDERED this 5th day of February, 2015. 

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00004-WS-C Document 5 Filed 02/05/15 Page 7 of 7