King v. Wexford Health Sources, Inc. et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN D. KING, 	)
AIS# 134091 	)
)
Plaintiff, 	)
)
vs. 	) 	CIV. A. NO. 23-00147-TFM-N
)
WEXFORD HEALTH SOURCES, 	)
INC., et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff Steven D. King, an Alabama Department of Corrections inmate, filed a
complaint seeking relief under 42 U.S.C. § 1983 and a motion to proceed without
prepayment of fees. (Docs. 1, 2). This case was referred to the undersigned Magistrate
Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR
72(a)(2)(R). Upon review, and for the reasons discussed herein, the undersigned
recommends that this action be DISMISSED without prejudice, prior to service of
process, as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Based upon this finding,
it is further recommended that Wexford Health Sources, Inc.’s Motion to Dismiss (Doc.
6) be DENIED as MOOT, and it is ORDERED that Plaintiff’s request for an extension of
time to pay partial filing fee (Doc. 5) be dismissed as MOOT, as the required partial
payment was received July 5, 2023 (see Doc. 8).
Screening of Complaint
Pursuant to the Prison Litigation Reform Act (“PLRA”), this Court is obligated to
conduct a preliminary review of Plaintiff’s complaint. See 28 U.S.C. §§ 1915A(a) and
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(e). While the Court liberally construes pro se pleadings, like the one in this case,
holding them to a less stringent standard than pleadings drafted by attorneys, Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003), the complaint will still be dismissed if it “(1)
is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)
seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
1915A(b). The law is clear, where a prisoner misrepresents his prior litigation history on
a complaint form requiring disclosure of such history, his conduct may be deemed
malicious and the action subject to dismissal. See, e.g., Burrell v. Warden I, 857 F.
App'x 624, 625 (11th Cir. 2021) (affirming dismissal of prisoner’s civil rights complaint
where he failed to identify two prior federal lawsuits).1
Here, Plaintiff was required to disclose on the Court’s civil rights complaint form
whether he had filed any other lawsuits in state or federal court dealing with the same or
similar facts – to which he checked the box, “Yes”. (Doc. 1 at 2). Plaintiff was required to
disclose whether he had filed any other lawsuits in state or federal court relating to his
imprisonment – to which he checked the box “Yes”. (Id.). Plaintiff was then required to
provide information regarding all previous and/or pending cases. In so doing, Plaintiff
listed three cases:
King v. Shaw, et al., Case No. 2:22-cv-369-WHA-CSC, as pending in the Middle
District of Alabama, against Defendants Dr. Shaw, Warden Turner, T. Stone, and
Wexford Health Sources.
King v. Dr. Osula, Case No. 2:22-cv-1567-MHH-JHE, in the Northern District of
Alabama.
1 	“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2 (2005).
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King v. City of Mobile, et al., Case No. 22-11952-A, in the U.S. Court of Appeals
for the Eleventh Circuit, from the Southern District of Alabama, case number 15-
cv-610-TFM-N, against Defendants Jennings Powell, et al.
(Doc. 1 at 2-4). Plaintiff affirmed the information contained in the complaint form was
true, by signing under the certification stating, “By my signature below, I swear or affirm
under penalty of perjury that the facts set out in this complaint are true and correct.”
(Doc. 1 at 11). Accordingly, Plaintiff certified that at the time he filed this action, in April
of 2023, he had filed no other cases in this or other courts.
Upon researching Plaintiff’s litigation history through Public Access to Court
Electronic Records (PACER), the Court has discovered that Plaintiff failed to accurately
disclose his litigation history on the complaint form. According to PACER, Plaintiff failed
to list two other cases which he has been involved in:
• 	King v. Thigpen, et al., Case No. 2:90-01150-ID-VPM, in the Middle
District of Alabama, filed March 8, 1994
• 	King v. Wexford, et al., Case No. 22-cv-0286-CG-MU, in the Southern
District of Alabama, filed July 19, 2022.
Because these cases contain the same Inmate AIS number as Plaintiff lists in this
current action, the Court is confident that the “Steven D. King” in these cases are one
and same as Plaintiff. Moreover, the Court is familiar with the undisclosed case of King
v. Wexford, et al., 22-cv-286-CG-MU, as it was filed in this Court and contains
essentially the same factual allegations Plaintiff now asserts in the current suit before
the Court. It is Plaintiff’s failure to disclose this case which the Court finds malicious and
inexcusable, namely because this case was dismissed without prejudice, on January
20, 2023, after Plaintiff misrepresented his litigation history on the complaint form. (See
Docs. 9, 12-13, Case No. 22-cv-286-CG-MU, U.S. Dist. Court, S.D. Ala.).
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The question becomes whether Plaintiff has committed fraud on the Court
through his omission, and whether such omission was intentional and material. See
Greyer v. Illinois Dep't of Corr., 933 F.3d 871, 880 (7th Cir. 2019) (discussing the
importance of distinguishing between negligent and fraudulent acts under PLRA).
Based on the facts of this case, it appears so. Plaintiff was informed by the Court, a
mere 4 months before filing this nearly identical suit, not only that he must include all
prior litigated cases on his complaint form but also the reason that such information was
important. (See Doc. 9 at 3-4, Case No. 22-cv-CG-MU). The Court further provided
Plaintiff a list of all his previous litigated cases, including the names, numbers, and
dates of his prior lawsuits. (Id. at 3). Plaintiff’s failure to now disclose the cases
identified by the Court can only be viewed as purposeful. And any claim that Plaintiff
forgot about the filed case 22-cv-286-CG-MU – containing the same factual allegations,
incident date, and defendants, that was dismissed just months before he filed this
current complaint - simply belies reason and credibility. Because the dismissal of the
omitted litigation constituted a strike against Plaintiff, his failure to disclose it is relevant
to his ability to proceed under the PLRA. See Greyer, 933 F.3d at 880 (noting severe
sanctions, like dismissal, should be imposed for omissions to litigation histories where
the omissions add strikes against a prisoner). Therefore, Plaintiff’s complaint is due to
be dismissed without prejudice, prior to service of process, pursuant of 28 U.S.C. §
1915(e)(2)(B)(i) as malicious.
The Court, again, advises Plaintiff that while this dismissal without prejudice does
not bar him from refiling his claims, see, e.g., Dynes v. Army Air Force Exch. Serv., 720
F.2d 1495, 1499 (11th Cir. 1983) (per curiam), his time to refile is running against
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Alabama’s two-year statute of limitations for a § 1983 action. See Ala. Code § 6-2-38(l).
Based on Plaintiff’s complaint, the incident at issue occurred on August 5, 2021 (Doc. 1
at 5). Thus, Plaintiff has until August 5, 2023, to refile this action or he will be barred
from bringing the claims.
Plaintiff is further advised that with this dismissal, he now has “two strikes”
against him. Under 28 U.S.C. § 1915(g),2 if Plaintiff receives one more “strike” he will be
unable to bring future civil actions in forma pauperis, unless he is in imminent danger.
Stated another way, if Plaintiff files another suit which is dismissed as malicious,
frivolous, or for failure to state a claim, he will no longer be allowed to bring any civil
rights actions under § 1983, without paying the full filing fee upfront or demonstrating
that he is in imminent danger of serious physical injury.
Accordingly, it is RECOMMENDED:
1. 	That this action be DISMISSED without prejudice, prior to service of
process, as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
2. 	Motion to Dismiss filed by Wexford Health Sources, Inc. (Doc. 6) be DENIED
as MOOT.
It is furthered ORDERED that Plaintiff’s request for an extension of time to pay
partial filing fee (Doc. 5) be dismissed as MOOT, as the required partial payment was
received July 5, 2023 (see Doc. 8).
2 	Section 1915(g) 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.”
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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the manner
provided by law. Any party who objects to this recommendation or anything in it must,
within fourteen (14) days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b);
S.D. Ala. Gen.LR 72(c). The parties should note that under Eleventh Circuit Rule 3-1,
“[a] party failing to object to a magistrate judge's findings or recommendations contained
in a report and recommendation in accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the district court's order based on
unobjected-to factual and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object. In the absence of a
proper objection, however, the court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate Judge's report and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE and ORDERED this 18th day of July, 2023
/s/Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE
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