United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Court has conducted an independent and de novo review of the
entire record and concurs with the Magistrate Judge's
Report and Recommendation, (doc. 27). For the reasons which
follow, the Court OVERRULES Plaintiffs Objections and ADOPTS
the Magistrate Judge's Report and Recommendation as the
Order of the Court. The Court DIRECTS the Clerk of Court to
DISMISS without prejudice Plaintiffs Complaint, (doc. 1),
CLOSE this case, and enter the appropriate judgment of
dismissal. The Court DENIES Plaintiff in forma
pauperis status on appeal.
Plaintiff did not file Objections to this Report and
Recommendation, he did file a declaration and certificate of
service, (docs. 28, 30), three motions to amend, (docs. 29,
32, 33, 34), and an Amended Complaint, (doc.
However, "[f]ederal courts sometimes will ignore the
legal label that a pro se litigant attaches to a
motion and recharacterize the motion in order to place it
within a different legal category." Retic v. United
States. 215 Fed.Appx. 962, 964 (11th Cir. 2007) (quoting
Castro v. United States, 540 U.S. 375, 381 (2003)).
This Court may "recharacterize a pro se
litigant's motion to create a better correspondence
between the substance of the motion and its underlying legal
basis." Rameses v. United States District
Court, 523 Fed.Appx. 691, 694 (11th Cir. 2013). Federal
courts "may do so in order to avoid an unnecessary
dismissal, to avoid inappropriately stringent application of
formal labeling requirements, or to create a better
correspondence between the substance of the motion and its
underlying legal basis." Id. (quoting
Castro. 540 U.S. at 381-82). In line with this
reasoning, the Court characterizes Plaintiffs subsequent
filings, (docs. 28, 29, 30, 31, 32, 33, 34), as Objections to
the Magistrate Judge's Report and Recommendations. While
several of these filings are untimely as objections, the
Court has nonetheless considered all of the allegations and
arguments raised in these filings in issuing this Order.
Nothing in these filings suggests the Report and
Recommendation should not be adopted in full.
Report, the Magistrate Judge recommended dismissing
Plaintiffs Complaint without prejudice for abuse of the
judicial process due to Plaintiffs failure to fully and
truthfully disclose his litigation history as the Court
required. (Doc. 27, pp. 6-7). In his responsive filings,
Plaintiff writes that he "made these mistakes
unintentionally and due to him [r]ushing to submit his filing
out of fear" of further retaliation that he alleges he
is experiencing at the hands of prison officials. (Doc. 29,
pp. 1-2). Plaintiff alleges, however, that he did not
understand that the dismissal of one his previous lawsuit
should be disclosed because he did not pursue the case, and
that he did not have access to information, including Court
Orders, relating to some of his other former federal actions.
(Id.) Plaintiff contends he did not
"[i]ntentionally engage in bad [f]aith, litigiousness,
or manipulative tactics" and requests leave to amend his
Complaint to update his litigation history. (Id., pp. 2-3).
attempt to excuse what he previously failed to disclose
cannot "serve to overlook [Plaintiffs] abuse of the
judicial process." Hood v. Tompkins. 179
Fed.Appx. 818, 819 (11th Cir. 2006). Plaintiff admits he
"made several mistakes" when disclosing his
litigation history to the Court. (Doc. 29, p. 2). Though
Plaintiff avers that he did not intend to deceive the Court,
his subjective intentions do not require a different result.
See Shelton v. Rohrs, 406 Fed.Appx. 340 (1 lth Cir.
2010) (affirming dismissal without prejudice when plaintiff
failed to disclose one of his prior federal lawsuits even
though Plaintiff claimed he "did not intend to mislead
the court"). As the Magistrate Judge observed, this is
not the first time Plaintiff has made this mistake-rather,
Plaintiff has filed previous actions in the Southern District
of Georgia which were dismissed due to his failure to
disclose his litigation history. (Doc. 27, p. 7).
asserts that his lack of candor occurred because he rushed to
submit his initial filings because he feared retaliation from
prison officials. (Doc. 29, pp. 2-3). Importantly, when
filing his Complaint, Plaintiff disclosed two of his previous
federal lawsuits and provided several explanatory sentences.
(Id., pp. 2-3). It is not clear why Plaintiff would
be able to recall and disclose two lawsuits in a
"rush," but not others. Rather, it appears that
Plaintiff, now aware of the deficiency in his otherwise
proper filing, is claiming he feared retaliation as an
attempt to excuse his mistake. Even if the Court were to accept
that Plaintiff would face retaliation if he disclosed his
full (as opposed to partial) litigation history on the form,
this argument would still fail to explain why he made no
effort to correct the issue during the six months that the
action was pending. Instead, Plaintiff waited until the Court
pointed out the deficiency to supplement the incomplete
information he initially provided.
attempts to justify his lack of candor do not excuse his
failure to disclose or make sanctions any less appropriate.
See Redmon v. Lake Ctv. Sheriffs Office, 414
Fed.Appx. 221, 226 (11th Cir. 2011) (affirming dismissal when
the district court allowed plaintiff to show cause as to why
he failed to fully disclose his litigation history but found
plaintiffs explanation "did not excuse the
misrepresentation"); Young v. Sec'v Fla. for
Dep't of Corr.. 380 Fed.Appx. 939, 941 (11th Cir.
2010) (affirming dismissal and denial of leave to amend for
failure to disclose his litigation history despite plaintiffs
good faith effort to disclose because "[t]he hindrances
he identified did not absolve him of the requirement of
disclosing, at a minimum, all of the information that was
known to him"). As the Magistrate Judge noted, "The
plain language of the Complaint form is clear, and Plaintiff
failed to answer fully and truthfully." (Doc. 27,
the Court OVERRULES Plaintiffs Objections and ADOPTS the
Magistrate Judge's Report and Recommendation as the
opinion of the Court. The Court DISMISSES without prejudice
Plaintiffs Complaint, DENIES Plaintiff in forma
pauperis status on appeal, and DIRECTS the Clerk of
Court to CLOSE this case and enter the appropriate judgment
 Plaintiff had until February 11, 2019,
to file his Objections to the Report and Recommendation.
(Doc. 25, pp. 8-9). While Plaintiff filed his declaration,
certificate of service, and his first motion to amend before
February 11, (docs. 28, 29, 30), he filed his amended
Complaint, (doc. 31), on February 19, 2019, and his next
three motions to amend, (docs. 32, 33, 34), on March 4, 2019,
March 7, 2019, and March 19, 2019, respectively.
Though Plaintiff frequently alleges
difficulty receiving and sending mail, (see, e.g..
doc. 28, pp. 1-2), he did receive a timely copy of the
January 29, 2019 Report and Recommendations. In his first
motion to amend (postmarked on February 6 and filed with this
Court on February 8, 2019), Plaintiff asks the Court for
leave "to correct the deficiencies noted in [the]
Janfuary] 29, 2019 Report and Recommendation made by U.S.
Magistrate Judge Benjamin W. Cheesbro." (Doc. 29, p. 1).
This shows Plaintiff obtained a copy of the Report and
Recommendations and filed responses (albeit improperly)
during the time period set for objections. While pro se
pleadings are held to a less stringent standard and are
construed liberally, pro se parties are not excused from
compliance with procedural rules. Moton v. Cowart
631 F.3d 1337, 1341 n.2 (1 lth Cir. 2011); Albra v.
Advan. Inc.. 490 F.3d 826, 829 (11th Cir. 2007).
Because, as discussed below, nothing in Plaintiffs proposed
amendments shows good cause for failing to disclose his full
litigation history, the Court DENIES as moot his motions to
amend and to substitute his amended Complaint, (docs. 29, 31,
32, 33, 34). Despite this denial, the Court has examined all
of Plaintiff s subsequent filings and considered all of the
arguments made therein before issuing this Order.
 Plaintiff did assert a retaliation
claim as part of his underlying action. (Doc. 1, ...