USCA11 Case: 21-12686 Date Filed: 07/01/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12686
Non-Argument Calendar
____________________
KENNETH KENDRICK,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
SUSAN BARTON,
Officer,
SARAH HOOVER,
Officer,
Defendants-Appellees.
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2 Opinion of the Court 21-12686
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cv-00068-TKW-MJF
____________________
Before JILL PRYOR, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
Kenneth Kendrick, pro se, appeals the District Court’s dis-
missal of his complaint without prejudice, under 28 U.S.C.
§ 1915A, for maliciousness and abuse of the judicial process for fail-
ing to disclose his litigation history on the civil rights complaint
form. He argues that this omission occurred because of his confu-
sion as a pro se litigant, and because of his pro se status, the District
Court should have provided him a notice of deficiencies and leave
to amend the complaint.
I.
Kendrick, an inmate of the Florida Department of Correc-
tions (“FDOC”), filed a
42 U.S.C. § 1983 action against the Secre-
tary of the Florida Department of Corrections and two correctional
officers using a pro se complaint form. He alleged that he wrote
novels which he then emailed to his family for publication, but that
officers censored and rejected these emails because “inmates
[were] not allowed to publish books.” He asserted violations of his
First and Fourteenth Amendment rights.
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21-12686 Opinion of the Court 3
The complaint form asked whether Kendrick had filed any
other federal lawsuit “challenging [his] conviction or otherwise re-
lating to the conditions of [his] confinement” and Kendrick checked
the box “NO” and did not provide any case identifying information.
[Doc. 1 at 12] Following this question was a warning that “Failure
to disclose all prior cases may result in the dismissal of this case.”
[Doc. 1 at 13] Kendrick later filed a notice of constitutional question
regarding
Fla. Stat. § 944.512 1 and a motion for declaratory judg-
ment that the statute was unconstitutional.
Kendrick’s complaint was assigned to a magistrate judge for
screening under the Prison Litigation Reform Act of 1995
(“PLRA”). Pub. L. No. 104–134,
110 Stat. 1321 (1996); 28 U.S.C. §
1915A. The magistrate judge found that Kendrick had previously
initiated three federal cases in the Middle and Southern Districts of
Florida, despite having stated on his pro se complaint form, under
penalty of perjury, that he had not filed any other lawsuits. Given
this, the magistrate judge issued a report and recommendation (“R
& R”) recommending that the case be dismissed without prejudice
for maliciousness and abuse of the judicial process under 28 U.S.C.
§ 1915A(b)(1) because of Kendrick’s failure to disclose his litigation
1 Kendrick argued that
Fla. Stat. § 944.512 was inspired by New York’s “Son
of Sam” law and that, because the Supreme Court had struck down the New
York law as violating the First Amendment,
Fla. Stat. § 944.512 was also un-
constitutional.
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4 Opinion of the Court 21-12686
history. Kendrick objected to the R & R arguing, among other
things, that his omission was harmless error.
The District Court adopted the R & R and dismissed the case
without prejudice for maliciousness and abuse of the judicial pro-
cess under § 1915A(b)(1). 2 The District Court found that any lesser
sanction would effectively be no sanction at all. Following dismis-
sal, Kendrick moved for a TRO under Fed. R. Civ. P. 65(b)(1)(A)
requesting that one of the officials at his facility be prohibited from
coming within 30 feet of him. The District Court denied the mo-
tion, finding that (1) it was unrelated to the issues raised in the com-
plaint and (2) the Court lacked jurisdiction because the case had
been dismissed. Kendrick then moved for relief from judgment or
order, reconsideration, and to amend his complaint. The District
Court denied all three motions.
Kendrick appealed the dismissal of his § 1983 complaint. 3
While this appeal was pending, Kendrick filed a motion for a
2 The District Court did not address Kendrick’s notice of constitutional ques-
tion or motion for declaratory judgment.
3 Although Kendrick’s notice of appeal only expressly stated an intent to ap-
peal the dismissal of his complaint, not the denial of his post-judgment mo-
tions, we also have jurisdiction over the post-judgment order denying
Kendrick’s motions given our liberal construction of Fed. R. App. P. 3,
Kendrick’s pro se status, and the lack of prejudice to the State. See Nichols v.
Ala. State Bar,
815 F.3d 726, 730–31 (11th Cir. 2016); United States v. Padgett,
917 F.3d 1312, 1316 (11th Cir. 2019). Kendrick, however, has forfeited any chal-
lenges to this order—except for the denial of his motion to amend—by not
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21-12686 Opinion of the Court 5
temporary restraining order (“TRO”) under Fed. R. Civ. P.
65(b)(1)(A), a motion for declaratory judgment under Fed. R. Civ.
P. 57, and a motion for a preliminary injunction under Fed. R. Civ.
P. 65(a)(1) in this court. 4
II.
We review the dismissal of a complaint as malicious under
§ 1915A for abuse of discretion. Daker v. Ward,
999 F.3d 1300,
1307 (11th Cir. 2021). A district court’s decision regarding leave to
amend a complaint is also reviewed for abuse of discretion. Tro-
ville v. Venz,
303 F.3d 1256, 1259 (11th Cir. 2002). “Discretion
means the district court has a range of choice, and that its decision
presenting any issue or argument about it in his initial brief to this Court. See
United States v. Campbell,
26 F.4th 860, 871 (11th Cir. 2022).
4 We note that, in requesting a TRO under the Federal Rules of Civil Proce-
dure, Kendricks seeks relief that we are unable to provide in the first instance
on appeal. The Federal Rules of Appellate Procedure govern the procedures
in the U.S. Courts of Appeals, Fed. R. App. P. 1(a)(1), and there is no rule of
appellate procedure that provides for issuing a TRO. Similarly, Kendrick’s
motion under Fed. R. Civ. P. 57 for a declaratory judgment also seeks relief
we are unable to provide in the first instance on appeal. This Court is a court
of review and the District Court never ruled on Kendrick’s motion for declar-
atory judgment filed below, nor does Kendrick assert any error on the District
Court’s part. Finally, Kendrick’s motion for a preliminary injunction under
Fed. R. Civ. P. 65(a)(1) also seeks relief we are not authorized to provide. Even
were we to interpret Kendrick’s motion as a motion under Fed. R. App. P.
8(a)(1)–(2), which allows an appellate court to grant an injunction pending ap-
peal, Kendrick has not complied with Rule 8’s requirement that he first move
the District Court for such relief, nor has he argued that doing so is impracti-
cable.
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6 Opinion of the Court 21-12686
will not be disturbed as long as it stays within that range and is not
influenced by any mistake of law.” Daker, 999 F.3d at 1307 (quota-
tion marks omitted).
III.
Kendrick argues that he found Question C on the complaint
form to be confusing and that, as a pro se litigant, his filings should
be liberally construed. He also argues he should have been given
leave to amend his complaint. We are unpersuaded.
Under § 1915A, the district court must review a prisoner’s
civil complaint against an officer or employee of a governmental
entity “before docketing, if feasible or, in any event, as soon as prac-
ticable after docketing.” 28 U.S.C. § 1915A(a). The court must dis-
miss the complaint if it is “malicious.” Id. § 1915A(b)(1); see also
28 U.S.C. § 1915(e)(2)(B) & (g) (instructing district courts to dismiss
in forma pauperis (“IFP”) plaintiffs’ “malicious” actions and barring
prisoners’ IFP status after three or more dismissals for malicious-
ness, among other grounds).
A plaintiff’s bad-faith litigiousness or manipulative tactics,
which include lying about one’s litigation history, warrant dismis-
sal under § 1915. See Attwood v. Singletary,
105 F.3d 610, 611, 613
(11th Cir. 1997) (affirming dismissal and imposition of sanctions un-
der § 1915 and Fed. R. Civ. P. 11 for plaintiff’s lying about his indi-
gency status and his history of abusing the litigation process).
While it is true pro se pleadings are held to a less strict standard
than counseled pleadings and are liberally construed, Alba v.
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21-12686 Opinion of the Court 7
Montford,
517 F.3d 1249, 1252 (11th Cir. 2008), pro se litigants are
still required to conform to procedural rules. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007). They also owe the same duty of
candor to the court as imposed on any other litigant.
Here, dismissal without prejudice was not an abuse of dis-
cretion. Kendrick stated, under penalty of perjury, that he had not
previously filed any other federal lawsuits challenging his convic-
tion. Yet the record shows that Kendrick had in fact previously
filed three other federal actions. Although Kendrick argues the Dis-
trict Court should have taken his pro se status into account, pro se
litigants must still follow procedural rules. And the question before
Kendrick was by no means a complicated one.5 We cannot say it
was an abuse of discretion for the District Court to sanction
Kendrick for his omissions, especially given the dismissal was with-
out prejudice and Kendrick can refile his complaint. Indeed,
Kendrick does not argue that he was prejudiced by the dismissal in
any way.
As to Kendrick’s assertion that he should be given leave to
amend, Fed. R. Civ. P. 15—which governs the process for
5 Question C was the third question in a series. Question A asked, “To the best
of your knowledge, have you had any case dismissed for a reason listed in
§ 1915(g) which counts as a ‘strike’?” Question B asked, “Have you filed other
lawsuits in either state or federal court dealing with the same facts or issue
involved in this case?” And Question C asked, “Have you filed any other law-
suit in federal court either challenging your conviction or otherwise relating
to the conditions of your confinement?”
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8 Opinion of the Court 21-12686
amending pleadings—does not apply “once the district court has
dismissed the complaint and entered a final judgment for the de-
fendant.” Jacobs v. Tempur-Pedic Int’l,
626 F.3d 1327, 1344 (11th
Cir. 2010) (quotation marks omitted). The District Court correctly
denied Kendrick’s motion to amend his complaint because it had
dismissed the complaint and entered judgment for the defendants.
Accordingly, we affirm. 6
AFFIRMED.
6 Kendrick’s motions for Temporary Restraining Order, Declaratory Judg-
ment, and Preliminary Injunction are DENIED. We do not decide the consti-
tutionality of
Fla. Stat. § 944.512 in the first instance, and because Kendrick’s
complaint was dismissed without prejudice, he may litigate the merits of his
constitutional question in the District Court with the filing of a new com-
plaint.
