United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE’S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
currently incarcerated at Augusta State Medical Prison
(“ASMP”) in Grovetown, 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 pleading 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) (per curiam). 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 “Questionnaire for Prisoners Proceeding Pro Se
Under 42 U.S.C. § 1983” requires that prisoner
plaintiffs disclose: (1) whether they ever filed a lawsuit
dealing with the same or similar facts involved in the
present lawsuit, (2) whether, while incarcerated or detained,
they ever filed a lawsuit dealing with facts other than those
involved in the present lawsuit, and other than an appeal or
request for collateral relief related to their underlying
conviction, and (3) whether any such suit filed IFP in
federal court was dismissed on the ground that it was
frivolous, malicious, or failed to state a claim. (Doc. no.
1, pp. 2-3.) If there is more than one such lawsuit, the
additional lawsuits must be described on a separate piece of
Plaintiff stated he filed one prior case in the Middle
District of Georgia which was resolved by settlement.
Ponde v. Wilcox State Prison, 5:2015cv300 (M.D. Ga.
Aug. 6, 2015.) However, the Court is aware at least two other
cases Plaintiff filed in federal court, the most recent of
which was dismissed as frivolous. Ponde v. Smith, CV
1:2014cv3821 (N.D.Ga. Nov. 28, 2014); Ponde v.
Owens, 1:2013cv4303 (N.D.Ga. Dec. 30, 2013).
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 Strickland v.
United States, 739 Fed.Appx. 587, 587 (11th Cir. 2018)
(per curiam) (affirming dismissal of complaint based
on failure to disclose eight habeas petitions filed in
district court); Sears v. Haas, 509 Fed.Appx. 935,
936 (11th Cir. 2013) (per curiam) (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) (per curiam) (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) (per curiam) (affirming
dismissal of third amended complaint based on a plaintiffs
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
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), affd, 197 Fed.Appx. 818 (11th
Cir. 2006) (per curiam). As discussed above,
Plaintiffs disclosures concerning his prior federal lawsuits
was blatantly dishonest. Accordingly, this case should be
dismissed without prejudice as a sanction for the dishonesty.