AVERY v. POTTER et al

Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MARQUAVIOUS AVERY,
Plaintiff,
v. 	Case No. 5:26-cv-114-TKW/MJF
DAKOTA POTTER, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Because Plaintiff violated the Local Rules by failing to disclose fully
and accurately his litigation history, the District Court should dismiss
this case without prejudice.
B ACKGROUND
Plaintiff 	is 	a 	Florida 	inmate 	currently 	confined 	at 	Graceville
Correctional Facility. Doc. 6 at 1. Plaintiff’s Florida Department of
Corrections inmate number is DC# 135377. 	Id. 	On April 20, 2026,
Plaintiff initiated this civil action by filing a complaint under 42 U.S.C. §
1983. Doc. 1 at 5.
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 1 of 10

Page 2 of 10
Because Plaintiff failed to utilize the court-approved form, and
because his complaint violated Rules 8 and 10 of the Federal Rules of
Civil Procedure, the undersigned struck the complaint and ordered
Plaintiff to file an amended complaint. Doc. 5 at 3–4. The undersigned
instructed Plaintiff to use the court-approved form and to “answer each
question on the complaint form, including those about his litigation
history, both honestly and completely.” Id. at 2. The undersigned warned
Plaintiff that “an affirmative misrepresentation regarding his litigation
history likely will result in dismissal of this civil action.” Id.
On May 13, 2026, Plaintiff filed his first amended complaint. Doc.
6. As discussed below, Plaintiff failed to comply with the undersigned’s
order and the Local Rules insofar as Plaintiff failed to honestly and
completely disclose his litigation history.
DISCUSSION
A. 	Screening of Plaintiff’s Amended Complaint
“Although a pro se litigant’s filings are construed liberally, they
must comply with procedural rules.” McNair v. Johnson, 143 F.4th 1301,
1307 (11th Cir. 2025) (citations omitted). “A district court has discretion
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 2 of 10

Page 3 of 10
to adopt local rules that are necessary to carry out the conduct of its
business.” Frazier v. Heebe, 482 U.S. 641, 645 (1987); see also 28 U.S.C. §
2071; Fed. R. Civ. P. 83(a). “[L]ocal rules generally reflect the courts’
traditional ‘authority to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.’” Reese v. Herbert, 527 F.3d
1253, 1267–68 (11th Cir. 2008) (quoting Hoffmann–La Roche, Inc. v.
Sperling, 493 U.S. 165, 172–73 (1989)).
Rule 5.7(A) of the Local Rules of the United States District Court of
the Northern District of Florida instructs a pro se prisoner bringing suit
under 42 U.S.C. § 1983 to use the court’s standardized civil-rights
complaint form:
A party not represented by an attorney must file any of
these only on a form available without charge from the Clerk
or on the District’s website: a petition for a writ of habeas
corpus, a motion for relief under 28 U.S.C. § 2255, or a
complaint in a civil-rights case. A case is a civil-rights case if
it asserts a claim under the United States Constitution or a
statute creating individual rights, including, for example, 42
U.S.C. § 1983 or the Civil Rights Act of 1964. The Court need
not—and ordinarily will not—consider a petition, motion, or
complaint that is not filed on the proper form.
N.D. Fla. Loc. R. 5.7(A).
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 3 of 10

Page 4 of 10
The complaint form, in turn, instructs the inmate to disclose his
litigation 	history. 	In 	particular, 	under 	a 	heading 	titled 	“PRIOR
LITIGATION,” the form provides the following directive:
This section requires you to identify your prior
litigation history. Be advised that failure to disclose all
prior 	state 	and 	federal 	cases—including, 	but 	not
limited to civil cases, habeas cases, and appeals—may
result in the dismissal of this case. You should err on
the side of caution if you are uncertain whether a case
should be identified.
Compl. Form at 8. Separately, the form requires the inmate to provide
the following “CERTIFICATION”:
I 	declare, 	under 	penalty 	of 	perjury, 	that 	all 	of 	the
information stated above and included on or with this form,
including my litigation history, is true and correct.
Id.
Local Rule 41.1 describes the consequences of a litigant’s failure to
comply with the applicable court rules, and it expressly warns that
dismissal is a possible sanction:
If a party fails to comply with an applicable rule or a
court order, the Court may strike a pleading, dismiss a claim,
enter a default on a claim, take other appropriate action, or
issue an order to show cause why any of these actions should
not be taken.
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 4 of 10

Page 5 of 10
N.D. Fla. R. 41.1.
In short, Plaintiff was required to complete the standardized civil-
rights 	complaint 	form 	and 	to 	complete 	the 	form 	according 	to 	its
instructions.
B. 	Plaintiff’s Responses to Questions on the Complaint Form
Plaintiff 	provided 	answers 	to 	Section 	VIII 	of 	the 	civil 	rights
complaint form which requires Plaintiff to disclose his litigation history.
Doc. 6 at 7–8. The complaint form asks three questions:
A. Have you had any case in federal court, including federal
appellate 	court, 	dismissed 	as 	frivolous, 	as 	malicious, 	for
failure to state a claim, or prior to service?
B. Have you filed other lawsuits or appeals in 	state 	or
federal court dealing with the same facts or issue involved
in this case?
C. Have you filed any other lawsuit, habeas corpus petition,
or appeal in state or federal court either challenging your
conviction or relating to the conditions of your confinement?
Id. at 8.
Plaintiff responded, “Yes” to Question A and disclosed:
• 	Avery v. Fla. Dep’t of Corr. No. 5:25-cv-282-TKW-MJF (N.D. Fla.).
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 5 of 10

Page 6 of 10
Id. at 8. Plaintiff responded “No” to Questions B and C and did not
disclose any cases. Id.
At the end of the civil rights complaint form, Plaintiff signed his
name after certifying: “I declare, under penalty of perjury, that all of the
information stated above and included on or with this form, including my
litigation history, is true and correct.” Id. at 9. Thus, Plaintiff has in effect
stated that he has never filed any other case or appeal in federal court or
state court.
C. 	Plaintiff’s Omissions
Pursuant to Federal Rule of Evidence 201, the undersigned takes
judicial notice that at the time Plaintiff filed his amended complaint in
this case, Plaintiff had filed two appeals in Florida courts challenging his
conviction in the Orange County Circuit Case No. 2016-CF-8761-A-O.
These appeals include:
• 	Avery v. State of Florida, No. 6D2023-3457, 403 So. 3d 480 (Fla. 6th
DCA 2025); and
• 	Avery v. State of Florida, No. 5D19-733, 294 So. 3d 314 (Fla. 5th
DCA 2020).
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 6 of 10

Page 7 of 10
These appeals clearly were responsive to Question C on the complaint
form. Plaintiff, therefore, was required to disclose these appeals.
By failing to disclose these appeals, Plaintiff violated the complaint
form’s explicit instructions, the undersigned’s order, and Plaintiff’s duty
of candor to the District Court. See Kendrick v. Sec’y, Fla. Dep’t of Corr.,
No. 21-12686, 2022 WL 2388425, at *3 (11th Cir. July 1, 2022) (noting
that pro se litigants “owe the same duty of candor to the court as imposed
on any other litigant”).
D. 	The Appropriate Sanction Is Dismissal Without Prejudice
“[A] district court may . . . dismiss a case under its inherent
authority, which it possesses as a means of managing its own docket so
as to achieve the orderly and expeditious disposition of cases.” McNair,
143 F.4th at 1306 (internal quotation marks and citations omitted).
When a complaint form requires a plaintiff to list his litigation history,
and the plaintiff’s statements are made under penalty of perjury, a
plaintiff’s affirmative misrepresentation regarding his litigation history
warrants 	dismissal 	of 	the 	case 	under 	the 	district 	court’s 	inherent
authority 	to 	manage 	its 	docket 	and 	enforce 	applicable 	local 	rules.
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 7 of 10

Page 8 of 10
McNair, 143 F. 4th at 1308; id. at 1306 (noting a district court’s “inherent
authority to dismiss [a] complaint without prejudice as a sanction for [the
plaintiff’s] failure to disclose his full litigation history as required by the
standard inmate complaint form.”).
Here, Plaintiff violated the Local Rules by failing to disclose his
entire 	litigation 	history, 	as 	required 	by 	the 	duly 	adopted 	standard
complaint form. Plaintiff knew from reading the complaint form that he
was required to disclose all his prior litigation, including any appeals
filed in state court challenging his conviction. Doc. 6 at 7–8. Plaintiff also
knew that the penalty for failing to disclose all prior cases was dismissal
of this case. Id. at 7; see also N.D. Fla. Loc. R. 41.1. In fact, by separate
order, 	the 	undersigned 	instructed 	Plaintiff 	to disclose 	his 	litigation
history and warned Plaintiff that the failure to do so would result in
dismissal of this civil action. Doc. 5 at 2.
A penalty is warranted both to deter Plaintiff from such conduct
and to deter others from similar misrepresentations and omissions. An
appropriate sanction for Plaintiff’s violation of the Local Rules by failing
to comply with the complaint form’s explicit instructions is to dismiss this
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 8 of 10

Page 9 of 10
case without prejudice.1 McNair, 143 F.4th at 1308; see also id. at n.4
(“[A] dismissal without prejudice doesn’t depend on a finding of bad faith,
and 	can 	follow 	from 	unintentional 	or 	merely 	negligent 	conduct.”);
Strickland v. United States, 739 F. App’x 587, 588 (11th Cir. 2018) (“A
sanction less than dismissal would signal that a failure to disclose filings
is an infraction without consequence. It would invite other prisoners to
omit their litigation history, thus draining the judicial system’s time and
resources.”).
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DISMISS 	this 	case 	without 	prejudice—pursuant 	to 	the
District Court’s inherent authority to manage its docket and enforce the
Local Rules—based on Plaintiff’s failure to comply with the complaint
form’s explicit instructions and failure to truthfully disclose his litigation
history.
1 Florida’s four-year statute of limitations likely would not preclude
Plaintiff from refiling this action in the near future. Shelton v. Rohrs, 406
F. App’x 340, 341 (11th Cir. 2010).
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 9 of 10

Page 10 of 10
2. 	DIRECT the clerk of the court to enter judgment accordingly
and close this case file.
At Pensacola, Florida, this 18th day of May 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the report and
recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only. A party who fails to object to this
report 	and 	recommendation 	waives 	the 	right 	to
challenge on appeal the District Court’s order based on
unobjected-to factual and legal conclusions. See 11th
Cir. R. 3-1; 28 U.S.C. § 636. The parties also are advised
that if they dispute the accuracy of any judicially-
noticed fact, or if they otherwise wish to be heard on
the 	propriety 	of 	the 	District 	Court 	taking 	judicial
notice of that fact, they must raise this issue in an
objection to this report and recommendation.
Case 5:26-cv-00114-TKW-MJF Document 8 Filed 05/18/26 Page 10 of 10