Milton Ross v. Doctor Eric Fogam

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13804
________________________
D.C. Docket No. 4:11-cv-00198-BAE-GRS
MILTON ROSS,
Plaintiff - Appellant,
versus
DOCTOR ERIC FOGAM,
Defendant – Appellee,
WARDEN, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 5, 2016)
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Before WILSON and WILLIAM PRYOR, Circuit Judges, and BUCKLEW,∗
District Judge.
PER CURIAM:
This appeal involves a review of the district court’s sanction of dismissing
the underlying case with prejudice due to Appellant’s misstatements in his
application to proceed in forma pauperis. As explained below, this Court
concludes that the district court’s sanction of dismissal with prejudice was an
abuse of discretion. Accordingly, this Court vacates the district court’s judgment
and remands the case for further proceedings consistent with this order.
I. Background
On August 8, 2011, Appellant Milton Ross filed suit against Appellee Dr.
Eric Fogam and others, alleging § 1983 claims that they were deliberately
indifferent to his serious medical needs, in violation of the Eighth Amendment. At
the time of the underlying lawsuit, Ross was a prisoner proceeding pro se, and the
following filings are relevant to this appeal.
Prisoner Form
Since Ross was a prisoner proceeding pro se and asserting § 1983 claims, he
was required to fill out a specific form used by prisoners asserting § 1983 claims in
∗ Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
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the Southern District of Georgia (the “Prisoner Form”). [Doc. 1]. One of the
questions on the Prisoner Form asked Ross to list any other lawsuits that he had
filed that dealt with the same facts as the underlying lawsuit. Ross responded that
he had filed a lawsuit in the Middle District of Georgia against Dr. Burnside and
others (case number 5:06-cv-177), which resulted in a settlement in 2009.
Another question on the Prisoner Form asked Ross to list all prior lawsuits
that he had brought in federal court while he had been incarcerated that dealt with
facts other than those involved in the underlying action. Ross responded by
identifying three lawsuits.
First, Ross stated that he had filed a lawsuit in the Middle District of Georgia
against Nicholas Hurse and others (case number 5:07-cv-123), in which he had
been granted in forma pauperis status. The Prisoner Form asked for the
disposition of that case, to which Ross responded, “agreed to drop at summary
judgment.” [Doc. 1].
Second, Ross stated that he had filed a lawsuit in the Northern District of
Georgia against Officer Mickle (case number 3:05-cv-44), in which he had been
granted in forma pauperis status. The Prisoner Form asked for the disposition of
that case, to which Ross responded, “Dismissed, statute of limitations.” [Doc. 1].
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Third, Ross stated that he had filed a lawsuit in the Southern District of
Georgia against Dr. Fogam and others (case number 4:11-cv-114), in which he had
been granted in forma pauperis status. The Prisoner Form asked for the
disposition of that case, to which Ross responded, “Dismissed.” [Doc. 1].
Another question on the Prisoner Form asked whether he had ever been
granted in forma pauperis status in a lawsuit in federal court that was dismissed as
frivolous, malicious, or failing to state a claim. Ross identified one case—the
Southern District of Georgia case against Dr. Fogam and others (case number 4:11-
cv-114).1
IFP Motion
In conjunction with filing his complaint and the Prisoner Form, Ross filed a
motion to proceed in forma pauperis (“IFP motion”). [Doc. 2]. The IFP motion is
a standard form that contains questions about Ross’s financial status, including
whether he had “received within the past twelve months any money from . . .[g]ifts
1 This question is asked on the Prisoner Form in order to help the district court determine
whether the “three strikes” provision of the Prison Litigation Reform Act bars the plaintiff from
proceeding in forma pauperis. Pursuant to 28 U.S.C. § 1915(g), a prisoner may not bring a civil
action or appeal a civil judgment in forma pauperis “if the prisoner has, on 3 or more 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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or inheritances? . . . [or] [a]ny other sources?” [Doc. 2]. Ross answered “yes” to
both of these questions. As a result, he was required to “describe each source of
money and state the amount received from each during the past twelve months.”
[Doc. 2]. In response, Ross stated, “my mother sent me what she can out of her
retirement check, if she can, she (74) years old.” [Doc. 2]. Ross did not indicate in
the IFP motion how much money his mother had given him or the amount of
money he had received from other sources.
Additionally, Ross indicated in the IFP motion that the current balance of his
prison trust account was $15.63. Furthermore, he indicated in the IFP motion that
he has ten children that are dependent on his support.
Also in conjunction with filing his complaint, the Prisoner Form, and the IFP
motion, Ross filed a Motion for Appointment of Counsel. [Doc. 4]. Ross attached
to his Motion for Appointment of Counsel a statement showing deposits into his
prison trust account. The statement showed that during the twelve months prior to
August 8, 2011, a total of $1,710 was deposited into Ross’s prison trust account.
On August 11, 2011, the district court granted Ross’s IFP motion and
ordered that Ross provide the court with a copy of his Prison Trust Fund Account
Statement within thirty days. [Doc. 6]. Ross complied on August 25, 2011. [Doc.
8]. Upon review of his submission, on August 29, 2011, the district court
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determined that due to the substantial deposits in Ross’s prison trust account, Ross
“clearly ha[d] access to financial resources” and could afford to pay $200 of the
$350 filing fee within thirty days. [Doc. 9]. On September 9, 2011, Ross made two
payments towards his filing fee, one for $200 and one for $40.
Screening of Ross’s Complaints
On November 1, 2011, the district court screened Ross’s complaint, as
required by the Prison Litigation Reform Act (“PLRA”), to determine whether his
claims were subject to dismissal as frivolous, malicious, or legally insufficient.
The district court determined that Ross’s claims were deficient, but that the
deficiencies might be cured if he was given leave to amend. [Doc. 14].
On December 19, 2011, Ross filed an amended complaint. [Doc. 17].
Approximately one year later, the district court screened the amended complaint
and concluded that Ross’s claims against Dr. Fogam were sufficient. [Doc. 24, 29].
However, the district court found that the claims against the other defendants failed
and would be dismissed. [Doc. 24, 29].
Dr. Fogam’s Motion to Dismiss
Thereafter, Dr. Fogam was served with the amended complaint. On
February 12, 2013, Dr. Fogam moved to dismiss Ross’s amended complaint,
arguing that: (1) Ross had four strikes under the PLRA; (2) Ross failed to provide
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accurate answers on the Prisoner Form regarding his past litigation history; and (3)
Ross failed to disclose the $25,000 settlement he received in August of 2009 from
his case against Dr. Burnside (case number 5:06-cv-177), and thus, he was not
truthful in his IFP motion regarding his access to funds. [Doc. 32].
With regard to Ross’s prior litigation history, Dr. Fogam argued that Ross
had misstated three things on his Prisoner Form, which would have disclosed that
Ross already had four strikes under the PLRA and was not eligible for IFP status.
First, when the Prisoner Form asked for the disposition of his case against Hurse
(case number 5:07-cv-123), Ross responded, “agreed to drop at summary
judgment.”2 [Doc. 1]. However, the district court in that case actually granted
summary judgment for the defendants after considering the record evidence before
it. [Doc. 32-3]. In granting summary judgment for the defendants, the district court
stated that Ross had failed to state a claim against them. [Doc. 32-3].
Second, when the Prisoner Form asked for the disposition of his case against
Mickle (case number 3:05-cv-44), Ross responded, “Dismissed, statute of
limitations.” [Doc. 1]. While that response is true, the Prisoner Form defines
dispositions to include appeals, and Dr. Fogam points out that Ross appealed the
2 In reviewing the public record in Ross’s case against Hurse, this Court notes that after the
defendants filed their motion for summary judgment, Ross filed a “Motion for Settlements,” in
which he agreed to dismiss his lawsuit if the defendants agreed to: (1) pay the court costs and
attorneys’ fees, and (2) not retaliate against him for filing suit. [Doc. 72 in case number 5:07-cv-
123].
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Mickle case. [Doc. 32-5]. On appeal, the Eleventh Circuit affirmed the district
court’s dismissal for failure to state a claim based on the statute of limitations.
[Doc. 32-5].
Third, when Ross responded to the question on the Prisoner Form asking
whether he had ever been granted in forma pauperis status in a lawsuit in federal
court that was dismissed as frivolous, malicious, or failing to state a claim, Ross
only identified one case—the Southern District of Georgia case against Dr. Fogam
and others (“Fogam I,” case number 4:11-cv-114). Dr. Fogam argues that Ross
should have also listed the following three cases: (1) the summary judgment
granted in the Hurse case (case number 5:07-cv-123), (2) the dismissal for failure
to state a claim due to the statute of limitations in the Mickle case (case number
3:05-cv-44)3 and (3) the appeal of the Mickle case, in which the Eleventh Circuit
affirmed the district court’s dismissal order.
Magistrate Judge’s R&R and District Court’s Order Adopting It
Pursuant to 28 U.S.C. § 1915(e)(2), a court “shall” dismiss a case if it
determines that the allegations of poverty in an IFP motion are untrue. Upon
review of Dr. Fogam’s motion to dismiss, the magistrate judge issued a Report and
3 The Fogam I court specifically criticized Ross for failing to list the case against Mickle in
response to this question on the Prisoner Form. [Fogam I, Doc. 11]. Thus, Dr. Fogam argues that
Ross has no excuse for failing to list his case against Mickle in response to this question on the
Prisoner Form when asked in the instant case.
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Recommendation concluding that the amended complaint should be dismissed with
prejudice. [Doc. 38]. The magistrate judge based his conclusion on the fact that
Ross failed to disclose the $25,000 settlement he received in August of 2009 in the
lawsuit he filed in the Middle District of Georgia against Dr. Burnside and others
(case number 5:06-cv-177). The magistrate judge stated that it was unnecessary to
address Dr. Fogam’s arguments that Ross misstated his prior litigation history and
had four strikes under the PLRA, because Ross was not entitled to IFP status.
In finding that the case should be dismissed with prejudice, the magistrate
judge stated:
Ross has filed two civil actions in this Court since
receiving his $25,000 settlement [both against Dr.
Fogam: Fogam I and the instant case], and on both
occasions he has sought and obtained leave to proceed
IFP without mentioning that payment. Nor has he denied
the defendant’s assertion that these funds are the source
of some, if not all, [of] the deposits to his prison account
or that the funds had not been exhausted when he applied
to proceed IFP before this Court. Under these
circumstances, it is reasonable to infer that Ross falsely
stated, under “penalty of perjury,” that he was unable to
prepay this Court's filing fees due to his poverty. (Doc. 2
at 2.) He . . . never disputes defendant's assertion that he
received the $25,000 settlement payment or that he still
has access to some portion of those funds. As a prisoner,
all of Ross’ basic needs (food, shelter, clothing) have
been provided by the state during the entire time since he
received his settlement. While several thousand dollars
have been deposited to his prison account during this
period, the bulk of the settlement funds have not been
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funneled into that account and appear to remain in his
possession or control.
This is the second case in a row, covering the same
subject matter, where Ross has deliberately misled the
Court as to his ability to pay the filing fee.4 Given this
pattern of deceit, it is recommended that defendant’s
motion to dismiss (doc. 32-1) be GRANTED, and that
Ross’ complaint be dismissed WITH PREJUDICE. No
lesser sanction will suffice to dissuade Ross, and others
like him, from repeatedly and willfully lying in
documents submitted to this Court.
[Doc. 38].
4 The magistrate judge was referring to the prior case that Ross had filed against Dr. Fogam
(Fogam I, case number 4:11-cv-114). In Fogam I, Ross filed his § 1983 claim for deliberate
indifference to his serious medical needs against Dr. Fogam and others. Ross moved to proceed
in forma pauperis on May 24, 2011 and stated that he had not received money from any sources
within the prior twelve months. [Fogam I, Doc. 6]. However, Ross attached a statement from his
prison trust account to the IFP motion, which showed that he had received over $1,800 during
the prior twelve months. The district court granted the IFP motion and directed Ross to provide
the court with a copy of his Prison Trust Fund Account Statement within thirty days. [Fogam I,
Doc. 8].
After Ross complied, the court issued an order for Ross to show cause as to why the case
should not be dismissed for lying in the Prisoner Form and IFP motion. [Fogam I, Doc. 11]. The
court pointed out that Ross had failed to disclose all of his prior lawsuits, specifically, the Hurse
case and the Mickle case. Additionally, the court pointed out that the Mickle case was dismissed
as frivolous and should have been reported as such on the Prisoner Form. Finally, the court
pointed out that Ross had lied in his IFP motion when he said that he had not received any
money within the last twelve months given that his trust account showed significant deposits.
Ross filed his response, in which he stated that he misunderstood the questions.
[Fogam I, Doc. 13]. The magistrate judge (who is the same magistrate judge in the underlying
case) issued a Report and Recommendation, in which he stated that he believed that Ross did
attempt to deceive the court by disguising his filing history and financial status. [Fogam I, Doc.
14]. As a result, the magistrate judge recommended the sanction of dismissal without prejudice
and stated that the dismissal would count as a strike under the PLRA. [Fogam I, Doc. 14]. The
district court adopted the Report and Recommendation and dismissed the Fogam I case without
prejudice. [Fogam I, Doc. 18].
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Ross filed his objections to the Report and Recommendation. [Doc. 40].
With respect to the $25,000 settlement, Ross stated that since his mother had taken
out a loan on her home in order to pay for an attorney for him when he was
arrested, he gave her $15,000 of the settlement proceeds to pay off the loan.
Additionally, his mother used the remaining $10,000 to pay for five of his
children’s education, clothing, and books. Ross also submitted an affidavit from
his mother to corroborate his financial situation and his assertion that all of the
settlement proceeds had been spent.5 [Doc. 40-1].
On July 25, 2013, the district court rejected Ross’s objections to the
magistrate judge’s Report and Recommendation, stating:
First, even if Ross has nothing left of his settlement, he
still receives money regularly from his mother. And he
failed to disclose that income to the Court when seeking
in forma pauperis status. That lie alone would warrant
dismissal. Combined with Ross’s previous
misstatements in another case, the outcome
recommended by the Magistrate is all the more
appropriate.
Second, strikes under the PLRA are strikes, regardless of
whether Ross thought they were. A mistaken belief that
he could file lawsuits without prepaying the filing fee
does not exempt Ross from the PLRA.
5 While not argued by Ross in his objections, this Court notes that the IFP form asked Ross to list
the money that he received during the prior twelve months, and the $25,000 settlement was
received in 2009—more than twelve months prior to Ross filing the IFP motion.
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Finally, the Court finds it dubious that Ross’s alleged
pain and lack of an attorney led to him making blatant
mistakes on his IFP application. Ross is an accomplished
litigator who has filled out that very form many times
before. While he remains a pro se litigant entitled to the
liberal construction of his filings, Ross is not a complete
novice at applying for IFP status. Far more likely than
pain causing his “mistakes” on the IFP form is Ross's
desire to file yet another lawsuit without paying a filing
fee.
The bottom line is that Ross's objections do nothing to
undermine the R&R's reasoning or recommended
outcome. The Court ADOPTS the R&R as the opinion of
the Court and DISMISSES WITH PREJUDICE this
action.
[Doc. 43].
On August 23, 2013, Ross filed a Notice of Appeal. [Doc. 44]. The issue
before this Court is whether the district court’s sanction of dismissal with prejudice
was an abuse of discretion.
II. Standard of Review
This Court reviews the sanction imposed under 28 U.S.C. § 1915 for an
abuse of discretion. See Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997)
(per curiam). “Discretion means the district court has a ‘range of choice, and that
its decision will not be disturbed as long as it stays within that range and is not
influenced by any mistake of law.’” Zocaras v. Castro, 465 F.3d 479, 483 (11th
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Cir. 2006) (quoting Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005)).
III. Review of the District Court’s Sanction of Dismissal with Prejudice
Ross appeals the district court’s sanction, arguing that the extreme sanction
of a dismissal with prejudice was not warranted. This Court agrees with Ross.
This Court views “dismissal with prejudice in the context of section 1915 as
an extreme sanction to be exercised only in appropriate cases.” Camp v. Oliver,
798 F.2d 434, 438 (11th Cir. 1986). Dismissal with prejudice is not warranted
“[i]n the absence of a finding of bad faith misstatement of assets, litigiousness or
manipulative tactics.” Matthews v. Gaither, 902 F.2d 877, 881 (11th Cir. 1990).
We have consistently held that “dismissal with prejudice [is] a drastic sanction to
be applied only after lesser sanctions are considered and found inadequate.” Camp,
798 F.3d at 438–39.
The district court ordered the sanction of dismissal with prejudice because
Ross regularly received money from his mother and failed to specifically disclose
that income in his IFP motion. Furthermore, the district court stated that
combining that lie with his previous misstatements in Fogam I made the sanction
of dismissal with prejudice all the more appropriate. As explained below, this is
not an appropriate case for such an extreme sanction.
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First, while Ross did not specifically state in his IFP motion that he had
received $1,710 from his mother during the prior twelve months, he did state that
he had received money from his mother and he attached a statement showing the
deposits into his trust account to his Motion for Appointment of Counsel (which
was filed at the same time as his IFP motion). By preemptively filing his trust
account statement, which showed the deposits into his trust account, his actions
can hardly be described as a bad faith misstatement of his assets. See id. at 438.
In Camp, the prisoner, Camp, filed an IFP motion in which he stated that he
had no money in his prison trust account. See id. at 437. However, Camp attached
to his IFP motion a statement of his prison trust account showing that he had an
average monthly balance of $72.65 at the time. See id. The defendants filed a
motion to dismiss, arguing that Camp had lied in his IFP motion about his access
to funds. See id. The district court agreed with the defendants and dismissed the
case with prejudice. See id.
Camp appealed, and this Court noted that “[t]he purpose of section 1915
permitting dismissal if the affidavit of poverty is untrue is not to punish the litigant
whose affidavit contains an insignificant discrepancy, but to weed out the litigant
who falsely understates his net worth in order to obtain in forma pauperis status to
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which he is not entitled based upon his true financial worth.” Id. at 438 n.3. This
Court reversed the district court, stating the following:
[T]he sole basis for dismissal of Camp’s petition was an
inaccurate answer in his affidavit. There was no finding
of bad faith, litigiousness or manipulative tactics.
Indeed, in his petition to proceed in forma pauperis,
Camp attached a certification by the prison financial
officer attesting to Camp’s actual bank balance and thus
belied any inference of intentional misrepresentation.
Moreover, upon receipt of the defendant’s motion to
dismiss, Camp filed a more current bank statement, and
tendered twenty dollars as partial payment of fees. The
district court first should have determined whether
considering the facts as a whole, Camp’s inaccuracy
foreclosed in forma pauperis eligibility. If, indeed, it so
found, then the court in the exercise of its statutorily
conferred discretion, should have applied less severe
sanctions: revoking in forma pauperis status and
accepting the partial payment of filing fees or allowing
Camp a reasonable time in which to pay the entire fee
before dismissing the petition with prejudice, or
alternatively, dismissing without prejudice. We hold,
therefore, that the district court abused its discretion by
automatically dismissing Camp’s petition with prejudice.
Id. at 438.
Likewise, in the instant case, Ross preemptively provided the court with a
statement of his prison trust account, which belies any inference of an intentional
misrepresentation of his access to funds. Id.; see also Gaither, 902 F.2d at 881 (per
curiam) (considering the fact that the prisoner submitted a statement of his prison
trust account when requested by the district court to support the appellate court’s
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conclusion that the sanction of dismissal with prejudice was not warranted as a
sanction for the prisoner’s misrepresentation that he had no money in his prison
trust account when he actually had $25.02).
Dr. Fogam points out that there are cases in which this Court has affirmed a
dismissal with prejudice as a sanction under § 1915. See Dawson v. Lennon, 797
F.2d 934, 935–36 (11th Cir. 1986) (per curiam); Attwood, 105 F.3d at 613. Dr.
Fogam’s reliance on those cases is misplaced, as those cases are clearly
distinguishable.
In Dawson, the prisoner, Dawson, moved for IFP status and filed an affidavit
stating that he could not afford to pay the filing fee. Dawson, 797 F.2d at 935.
The defendants argued that Dawson had lied, as he had access to significant
resources and other courts had previously determined that he had access to
substantial assets. See id. In filing his IFP motion, Dawson did not allude to the
fact that other courts had previously determined that he had access to substantial
assets, nor did he explain that there was a change in circumstances that would
render the prior courts’ determinations inapplicable. See id. As a result, the
district court determined that Dawson did not disclose all of his available assets
and had filed the IFP motion in bad faith. See id.
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Dawson appealed, and this Court noted the standard to be applied: “a district
court has the discretion to dismiss a case with prejudice where a plaintiff has in bad
faith filed a false affidavit of poverty.” Id. In affirming the district court, this
Court stated the following:
Dawson’s behavior in attempting to claim indigent status
while failing to draw the court’s attention to previous
authoritative determinations of his lack of indigency is
sufficient evidence of bad faith to support the district
court’s exercise of discretion. . . . The clear pattern of
attempts to deceive the courts on his financial status in
this and other cases justifies the district court’s
imposition of the severe sanction of dismissal with
prejudice. The district court clearly acted within its
discretion.
Id. at 935–36.
Likewise, in Attwood, the prisoner, Attwood, moved to proceed IFP and
stated that he had no access to funds. See Attwood, 105 F.3d at 611. The
defendants moved to dismiss as a sanction under § 1915. See id. Upon review, the
district court dismissed the case with prejudice, concluding that Attwood had
intentionally misstated his income in order to obtain IFP status. See id. To support
this conclusion, the district court noted that in a case brought in another court
approximately a year earlier, that court held a two-day hearing on Attwood’s
financial status and concluded that he had deliberately filed a false application to
proceed IFP. See id. at 611–13. Additionally, in another case, another court had
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found that Attwood had filed a false affidavit to support his request for IFP status.
See id. at 612.
Attwood appealed, and this Court affirmed. See id. at 613. This Court
stated that the district court properly imposed the sanction of dismissal with
prejudice due to Attwood’s false claims of indigency and failure to disclose that
other courts had determined that he was not indigent. See id.
The instant case is distinguishable from Dawson and Attwood. We
acknowledge that the Fogam I court found that Ross had lied in his IFP motion
because he had indicated that he had not received any money within the prior
twelve months. However, Ross attached a statement of his prison trust account
directly to his IFP motion in Fogam I, so it can hardly be said that Ross’s
misstatement in his IFP motion in that case was a bad faith attempt to misstate his
financial status. Furthermore, Ross specifically indicated that his mother gave him
money within the last twelve months when he submitted his IFP motion in the
instant case. This is not a bad faith pattern of deliberate lying to the court that was
shown in both Dawson and Attwood. Thus, Dawson and Attwood are not
controlling, and instead, based on Camp, the district court erred in imposing the
extreme sanction of dismissal with prejudice.
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Dr. Fogam attempts to combine Ross’s misstatements in Fogam I with his
misstatements in the instant case in order to show a pattern of misstatements that
constitute bad faith by Ross. However, in Fogam I, Ross failed to disclose his
lawsuits against Mickle and Hurse, but he did disclose those lawsuits on the
Prisoner Form in the instant case. In Fogam I, Ross failed to specifically disclose
in his IFP motion that his mother gave him money, but he attached a statement of
his prison trust account directly to his IFP motion in that case and he disclosed that
his mother gave him money in his IFP motion in the instant case. The mistakes in
Fogam I, combined with the mistakes in the instant case, do not rise to the level of
bad faith that would warrant a dismissal with prejudice of the instant case.
Furthermore, Ross’s mistakes in the instant case were not prejudicial. In the
instant case, Ross twice provided a statement of his prison trust account to the
court.6 While the court may have overlooked the statement the first time he
submitted it, the court clearly considered it on August 29, 2011 (two years prior to
dismissing the case) and did not determine that the mistake necessitated dismissal.
Instead, upon review of the statement, the district court simply ordered Ross to
immediately pay a $200 partial filing fee. Why this same mistake was later
6 He provided it on August 8, 2011 and August 25, 2011.
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determined by the district court to be a lie that, on its own, warranted dismissal, is
unclear.
Regarding Ross’s mistakes in the instant case regarding his prior litigation
history on the Prisoner Form, this Court notes that the magistrate judge specifically
declined to address the issue and the district court did not make any specific
findings about them. It is not clear to this Court that the mistakes Ross made
reporting the dispositions of his cases against Hurse and Mickle were made in bad
faith. Furthermore, it is not clear that accurately disclosing those dispositions
would have even resulted in a finding that Ross had three strikes under the PLRA,
and the district court did not specifically make such a finding.
IV. Conclusion
Accordingly, this Court concludes that the district court erred in imposing
the extreme sanction of dismissal with prejudice. As such, this Court vacates the
judgment of the court below dismissing Ross’s amended complaint with prejudice
and remands this case to permit Ross to proceed under his amended complaint.
VACATED AND REMANDED
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