WHITAKER
v.
INCH
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The court adopted the Magistrate Judge's recommendation to dismiss the case without prejudice for maliciousness and abuse of the judicial process.
The plaintiff, a prisoner proceeding pro se, failed to disclose two prior lawsuits on his complaint form as required by the PLRA. He claimed he forgot…
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This cause comes on for consideration upon the Magistrate Judge’s Report and Recommendation (R&R) dated October 15, 2020 (ECF No. 21), which recommended that this case be dismissed without prejudice for maliciousness and abuse of the judicial process. The plaintiff was furnished a copy of the R&R and was afforded an opportunity to file (and has filed, ECF No. 22) objections pursuant to Title 28, United States Code, Section 636(b)(1). Having reviewed the objections de novo, I have determined that the R&R should be adopted.1
3. All pending motions are DENIED as moot.
4. The clerk of the court shall close this case file.
DONE AND ORDERED this 30th day of October, 2020.
/s/ Roger Vinson
ROGER VINSON
SENIOR UNITED STATES DISTRICT JUDGE there are two problems. First, Eleventh Circuit case law provides that even an unintentional failure to disclose a prior suit can warrant dismissal. See, e.g., Jenkins v. Hutcheson, 708 F. App’x 647, 648-49 (11th Cir. 2018) (affirming district court’s sanction of dismissal because the plaintiff’s failure to disclose prior lawsuits, even though it was unintentional, frustrated district court’s ability to perform its screening function under the PLRA); Redmon v. Lake County Sheriff’s Office, 414 F. App’x 221, 225-26 (11th Cir. 2011) (affirming district court’s dismissal of the complaint because plaintiff misrepresented his litigation history even though it was inadvertent and because he didn’t understand the complaint form). Second, even if I could overlook that the plaintiff failed to disclose that earlier case, he himself notes in his objection to the R&R that there was actually a second case that he also failed to disclose and that the Magistrate Judge failed to discover. Unlike Harvey’s, that second case, Whitaker v. IRS, Case No. 5:18-cv-51 (N.D. Fla.), was disposed of on summary judgment late last year and his subsequent appeal to the Eleventh Circuit was dismissed earlier this year. Even though he has now voluntarily disclosed the second case, he did not do so when the operative complaint was filed. Dismissal without prejudice is appropriate on these facts.