Opinion
Case No. CV415-327
01-04-2016
LARRY ROBINSON, Plaintiff, v. DR. HENDERSON, Defendant.
ORDER
Larry Robinson has filed a 42 U.S.C. § 1983 case alleging constitutionally deficient medical care by a prison doctor. Doc. 1. He also moves for leave to proceed in forma pauperis (IFP), doc. 2, and for a preliminary injunction. Doc. 3. His attached prison record shows that he's now out on parole. The attached public court records reveal that one "Larry Robinson" has filed two prior civil rights cases: Robinson v. Ford, CV695-059, doc. 11 (M.D. Ga. Jan. 14, 1995); Robinson v. Paulk, CV703-116 (M.D. Ga. Dec. 17, 2003) (dismissal for failure to prosecute).
Yet, plaintiff checked "No" when he answered Question 1(B) on the civil complaint form, which asked "[w]hile incarcerated in any facility, have you brought any lawsuits in federal court which deal with facts other than those involved in this action?" Doc. 1 at 2. He also answered "No" to Question 1(C), which asked him whether he suffered any dismissals in IFP actions "on the ground that [such were] frivolous, malicious, or failed to state a claim?" Doc. 1 at 3. The "Larry Robinson" cases show two abandonment dismissals, one while plaintiff was incarcerated. If those are this Larry Robinson's prior cases, then he must account for them. It's common for inmates to indulge in such omissions because serial filers who seek IFP status must surmount 28 U.S.C. § 1915(g), which states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g) (emphasis added).
The Court therefore ORDERS plaintiff to admit or deny that he is the same "Larry Robinson" who filed those prior cases. If he is, then he must show cause why this case should not be dismissed for lying to this Court. As previously explained:
Rule 11(b) of the Federal Rules of Civil Procedure "forbids lying in pleadings, motions, and other papers filed with the court." Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006). "Rule 11(c) provides for sanctions concerning misrepresentations made in papers filed with the court under Rule 11(b)." Id. at 490; see also 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1335 (3d ed. 2004) (noting that courts have deemed sanctions appropriate to punish various forms of party misconduct). Rule 41(b) "expressly authorizes the involuntary dismissal of a claim for plaintiff's failure to abide by . . . the Federal Rules of Civil Procedure." Zocaras, 465 F.3d at 490; State Exch. Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982). In addition, "the power of a court to dismiss a claim is inherent in a trial court's authority to enforce its orders and ensure prompt disposition of legal actions." Zocaras, 465 F.3d at 490; Link v. Wabash R.R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Hartline, 693 F.2d at 1352. The Eleventh Circuit approves of dismissals under the inherent power where a litigant, in bad faith, fails to disclose his prior cases on a form complaint. Young v. Sec'y Fla. for the Dep't of Corrs., 2010 WL 2170970 at *1 (11th Cir. June 1, 2010) (affirming dismissal under inherent power for plaintiff's failure to disclose his prior cases on the court's complaint form); see Rivera v. Allin, 144 F.3d 719, 731 (11th Cir.1998) (noting that the district court did not abuse its discretion by dismissing an action without prejudice where plaintiff "had lied under penalty of perjury about the existence of a prior lawsuit"), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L.Ed.2d 798 (2007).Kelly v. Prison Health Serv., 2010 WL 3667027 at * 1 (S.D. Ga. Sept. 15, 2010), quoted in Willis v. Brown, 2012 WL 5378731 at * 2 (S.D. Ga. Oct. 29, 2012); see also Bright v. Corizon Health Corp., 2015 WL 9257155 at *2 n. 2 (S.D. Ga. Dec. 18, 2015) ("Furthermore, liars may be prosecuted."); Owens v. Morales, 2015 WL 5040245 at * 2 (S.D. Ga. Aug. 25, 2015).
The Court also notes from the attached prison record that Robinson was granted parole on November 30, 2015. That's ten days after he signed off on his Complaint (doc. 1 at 10) and request for preliminary injunction. Doc. 3. (His case, incidentally, was not filed with the Clerk of this Court until December 28, 2015, doc. 1 at 1). While plaintiff's pre-parole damages claims are not mooted by his parole, cf., Baker v. County of Sonoma, 2009 WL 330937 at * 4 (N.D. Cal. Feb. 10, 2009) (the exhaustion requirement of the Prison Litigation Reform Act did not apply to claims by a former inmate where his claims were filed after he had been released from custody), his injunctive relief claim is. See doc. 3 at 1-2 (requesting that this Court abate prison's interference with his access to needed medical care).
Finally, even if the Court finds that Robinson has not lied and grants his IFP motion, he will still have to pay (over installments) the $350 filing fee. He thus should consider these points before responding to this Order (he retains the option to voluntarily dismiss this case).
To summarize, Larry Robinson must, within 21 days of the date this Order is served, admit or deny (under penalty of perjury) whether he filed the above-noted cases. If the Court rules that he has lied, then it will advise that his case should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i), for abuse of judicial process and that dismissal will count as a 28 U.S.C. § 1915(g) strike against him.
At the end of his response he must write: I declare, under penalty of perjury, that the foregoing is true and correct and that this was placed in my prison's mailing system on __________, 2016.
See Shelton v. Rohrs, 406 F. App'x 340, 340 (11th Cir. 2010) (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), cited in Malone v. Bentley, 2015 WL 1608089 at * 1 (S.D. Ala. Apr. 10, 2015) ("An action is deemed malicious under [28 U.S.C] § 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 perjury, as such a complaint 'constitutes abuse of the judicial process warranting dismissal of the case without prejudice.'").
The Court also reminds him that it is his responsibility to keep this Court timely informed of any address change. Failure to do so will result in a dismissal recommendation. --------
SO ORDERED, this 4th day of January, 2016.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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