United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
who is currently housed at Georgia State Prison in
Reidsville, Georgia, filed a 42 U.S.C. § 1983 cause of
action to contest certain conditions of his confinement. Doc.
1. Plaintiff also filed a Motion for Leave to Proceed in
Forma Pauperis. Doc. 2. For the reasons which follow, I
DENY Plaintiff's Motion for Leave to
Proceed in Forma Pauperis. For these same reasons, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff
leave to proceed in forma pauperis on
contends he is Jewish and a vegan and was told Georgia State
Prison does not serve vegan meals. Doc. 1 at 5. Plaintiff
maintains he is forced to sell his food to other inmates so
he can go to the commissary to buy appropriate food, and he
usually cannot eat for two or more days at a time.
Id. In addition, Plaintiff contends Defendants have
disregarded his complaints and have denied his requests to be
transferred to an institution which houses vegetarians.
Id. Plaintiff asserts Defendants have violated his
religious rights and have subjected him to cruel and unusual
seeks to bring this action in forma pauperis under
42 U.S.C. § 1983. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the
prepayment of fees if the plaintiff submits an affidavit that
includes a statement of all his assets and shows an inability
to pay the filing fee and includes a statement of the nature
of the action which shows that he is entitled to redress.
Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to
28 U.S.C. § 1915A, the Court must review a complaint in
which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or
any portion thereof, that is frivolous, malicious, fails to
state a claim upon which relief may be granted, or which
seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
reviewing a complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed.R.Civ.P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under §
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678
(11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys . . .
.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal for Abuse of Judicial Process
Complaint form directly asks Plaintiff whether he
“brought any lawsuits in federal court which deal with
facts other than those involved in this action[.]” Doc.
1 at 2. Plaintiff marked the blank next to “no”
and answered each subsequent question with “N/A,
” meaning these questions were not applicable.
Id. at 2-3. However, a search of Plaintiff's
litigation history reveals he filed at least one other cause
of action prior to executing his Complaint on March 3, 2019:
Compl., Preston v. Hammock, 4:18-cv-21 (N.D.Ga. Jan.
25, 2018), ECF No. 1.
previously stated, § 1915 requires a court to dismiss a
prisoner's action if, at any time, the court determines
that it is frivolous, malicious, fails to state a claim, or
seeks relief from an immune defendant. 28 U.S.C. §
1915(e)(2)(B). Significantly, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative
tactics warrants dismissal” under § 1915.
Redmon v. Lake Cty. Sheriff's Office, 414
Fed.Appx. 221, 225 (11th Cir. 2011) (alteration in original)
(quoting Attwood v. Singletary, 105 F.3d 610, 613
(11th Cir. 1997)). In addition, Federal Rule of Civil
Procedure 11(c) permits a court to impose sanctions,
including dismissal, for “knowingly fil[ing] a pleading
that contains false contentions.” Id. at
225-26 (citing Fed.R.Civ.P. 11(c)). Again, although pro
se pleadings are to be construed liberally, “a
plaintiff's pro se status will not excuse
mistakes regarding procedural rules.” Id. at
on this authority, the Court of Appeals for the Eleventh
Circuit has consistently upheld the dismissal of cases where
a pro se prisoner plaintiff has failed to disclose
his previous lawsuits as required on the face of the
§1983 complaint form. See, e.g.,
Redmon, 414 Fed.Appx. at 226 (pro se
prisoner's nondisclosure of prior litigation in §
1983 complaint amounted to abuse of judicial process
resulting in sanction of dismissal); Shelton v.
Rohrs, 406 Fed.Appx. 340, 341 (11th Cir. 2010) (same);
Young v. Sec'y Fla. for Dep't of Corr., 380
Fed.Appx. 939, 941 (11th Cir. 2010) (same); Hood v.
Tompkins, 197 Fed.Appx. 818, 819 (11th Cir. 2006)
(same). Even where the prisoner has later provided an
explanation for his lack of candor, the Court has generally
rejected the proffered reason as unpersuasive. See,
e.g., Redmon, 414 Fed.Appx. at 226 (“The
district court did not abuse its discretion in concluding
that Plaintiff's explanation for his failure to disclose
the Colorado lawsuit-that he misunderstood the form-did not
excuse the misrepresentation and that dismissal was a proper
sanction.”); Shelton, 406 Fed.Appx. at 341
(“Even if [the plaintiff] did not have access to his
materials, he would have known that he filed multiple
previous lawsuits.”); Young, 380 Fed.Appx. at
941 (finding that not having documents concerning prior
litigation and not being able to pay for copies of same did
not absolve prisoner ...