United States District Court, S.D. Georgia, Dublin Division
GARRY D. MULLIS, Plaintiff,
ANTOINE G. CALDWELL; DR. COWEN; MS. GRANISON; and SAMANTHA MIRANDO, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STAINS MAGISTRATE JUDGE
currently incarcerated at Johnson State Prison in
Wrightsville, Georgia, is proceeding pro se and
in forma pauperis (“IFP”) in this case
brought pursuant to 42 U.S.C. § 1983. Because he is
proceeding IFP, Plaintiff's pleadings must be screened to
protect potential defendants. Phillips v. Mashburn,
746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v.
Donald, 165 Fed.Appx. 733, 736 (11th Cir. 2006). The
Court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), but the Court may
dismiss the complaint or any portion thereof if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b). After a
review of Plaintiff's complaint and prior history of case
filings, the Court REPORTS and RECOMMENDS this action be
DISMISSED without prejudice.
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 28
U.S.C. § 1915(g) of the PLRA provides:
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.
provision of the PLRA, commonly known as the three strikes
provision, requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their
lawsuits and appeals.” Rivera v. Allin, 144
F.3d 719, 723 (11th Cir. 1998) (internal citations omitted),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007). The Eleventh Circuit has upheld the
constitutionality of § 1915(g) because it does not
violate an inmate's right to access the courts, the
doctrine of separation of powers, an inmate's right to
due process of law, or an inmate's right to equal
protection. Id. at 721-27.
end, the “Form to be Used by Prisoners In Filing a
Complaint Under the Civil Rights Act, 42 U.S.C. § 1983,
” requires that prisoner plaintiffs disclose: (1)
whether they have begun other lawsuits in state or federal
court dealing with the same facts involved in the current
action, (2) whether they have brought any federal lawsuits
while incarcerated or detained in any facility dealing with
facts other than those in the current case, (3) the
disposition of any such lawsuits, and (4) whether they were
allowed to proceed IFP in any such lawsuits. (Doc. no. 1, pp.
1-3.) Under the question concerning whether a prisoner
plaintiff has brought any lawsuits dealing with facts other
than those involved in this action, the prisoner plaintiff
who has brought any such lawsuits is specifically instructed
to describe each lawsuit, including the court hearing the
case, the date of filing and disposition, and whether he was
allowed to proceed IFP. (Id. at 1-2.) If there is
more than one such lawsuit, the additional lawsuits must be
described on another piece of paper. (Id. at 2.)
under penalty of perjury, Plaintiff denied filing any
lawsuits dealing with the same facts as this case and
identified five prior cases he filed dealing with the facts
other than those in this action. (Id. at 1-3.)
However, the Court is aware of at least three other cases
Plaintiff filed which he failed to disclose: (1) Mullis
v. Deal, CV 616-100 (S.D. Ga. July 22, 2016); (2)
Mullis v. VanDyck, No. 1:09cv927 (N.D.Ga. Apr. 6,
2009); and (3) Mullis v. VanDyck, 1:09cv928 (N.D.Ga.
Apr. 6, 2009). The prior undisclosed case from the Southern
District of Georgia arguably should have been identified as
dealing with the same facts in this action, as the complaint
in that case similarly raises an issue regarding the proper
caloric requirements for the diet of a diabetic such as
Plaintiff. (Cf. CV 616-100, doc. no. 1, pp. 7, 18
with CV 318-012, doc. no. 1, pp. 5, 8-10.)
Eleventh Circuit has approved of dismissing a case based on
dishonesty in a complaint. In Rivera, the Court of
Appeals reviewed a prisoner plaintiff's filing history
for the purpose of determining whether prior cases counted as
“strikes” under the PLRA and stated:
The district court's dismissal without prejudice in
Parker is equally, if not more, strike-worthy. In
that case, the court found that Rivera had lied under penalty
of perjury about the existence of a prior lawsuit,
Arocho. As a sanction, the court dismissed the
action without prejudice, finding that Rivera “abuse[d]
the judicial process[.]”
Rivera, 144 F.3d at 731; see also Sears v.
Haas, 509 Fed.Appx. 935, 936 (11th Cir. 2013) (affirming
dismissal of complaint where prisoner plaintiff failed to
accurately disclose previous litigation); Redmon v. Lake
Cty. Sheriff's Office, 414 Fed.Appx. 221, 223, 226
(11th Cir. 2011) (affirming dismissal, after directing
service of process, of amended complaint raising claims that
included denial of proper medical care and cruel and unusual
punishment for placement in a “restraint chair”
and thirty-seven days of solitary confinement upon
discovering prisoner plaintiff failed to disclose one prior
federal lawsuit); Young v. Sec'y Fla.
Dep't of Corr., 380 Fed.Appx. 939, 940-41 (11th Cir.
2010) (affirming dismissal of third amended complaint based
on a plaintiff's failure to disclose prior cases on the
court's complaint form); Alexander v. Salvador,
No. 5:12cv15, 2012 WL 1538368 (N.D. Fla. Mar. 21, 2012)
(dismissing case alleging deliberate indifference to serious
medical needs where plaintiff failed to disclose new case
commenced in interim between filing original complaint and
second amended complaint), adopted by, Alexander
v. Salvador, No. 5:12cv15, 2012 WL 1538336 (N.D. Fla.
May 2, 2012).
practice of dismissing a case as a sanction for providing
false information about prior filing history is also well
established in the Southern District of Georgia. See,
e.g., Brown v. Wright, CV 111-044 (S.D. Ga.
June 17, 2011); Hood v. Tompkins, CV 605-094 (S.D.
Ga. Oct. 31, 2005), aff'd, 197 Fed.Appx. 818
(11th Cir. 2006). Indeed, the Magistrate Judge who screened
Plaintiff's prior case filed in the Southern District
explained in detail the importance of providing truthful
information about prior filing history and recommended
dismissal of the case “for Plaintiffs failure to
truthfully disclose his litigation history as
required.” CV 616-100, doc. no. 9, pp. 4-6 (S.D. Ga.
Sept. 8, 2016), adopted by, doc. no. 11 (S.D. Ga.
Nov. 17, 2016). As discussed above, Plaintiffs disclosures
concerning his prior federal lawsuits was blatantly
dishonest, and this case should be dismissed without
prejudice as a sanction for the dishonesty.