Shelton v. Rohrs

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10577 DEC 15, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 5:09-cv-00344-ACC-GRJ
NORMAN NABIR SHELTON,
lllllllllllllllllllll Plaintiff-Appellant,
versus
R. ROHRS,
Correctional Officer, USP Coleman II,
LT. MCCULLOUGH, Correctional LT., USP Coleman II,
LT. NOBLES, S.I.S. LT., USP Coleman II,
L. WILLIAMS, Deputy Captain, USP Coleman II,
D. DREW, Warden, USP Coleman II,
llllllllllllllllllll lDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 15, 2010)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se appellant Norman Nabir Shelton, a federal prisoner, filed a 42 U.S.C.
§ 1983 civil-rights action against the warden and several corrections officers.
Shelton checked “no” to the question on the complaint form asking whether he
had filed any other actions in state or federal court. But according to the district
court’s case management system, Shelton had filed at least four prior civil actions
in federal court. After the court ordered Shelton to show cause why his complaint
should not be dismissed, Shelton explained that he did not remember filing any
civil suits and his records were unavailable to him while incarcerated.
The district court rejected Shelton’s explanation and dismissed the
complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) for abuse of
judicial process.
In his notice of appeal, Shelton argued the dismissal was improper because
he did not intend to mislead the court and he simply was unaware of the law. In
his appellate brief, however, Shelton argues the merits of his substantive case
against the defendants and does not address the dismissal for abuse of the judicial
process.
2
Because we construe pro se pleadings liberally, Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998), we will consider the notice of appeal
as the relevant argument.
Section 1915(e)(2)(B)(i) provides that the district court may dismiss the
case of a prisoner proceeding in forma pauperis at any time if the action is
frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). We review a district court’s
frivolity dismissal under § 1915(e)(2)(B)(i) for abuse of discretion.1 Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002)
(citation omitted).
We conclude that the district court did not abuse its discretion. The court’s
case management system showed that Shelton had filed at least four previous civil
actions. Even if Shelton did not have access to his materials, he would have
known that he filed multiple previous lawsuits. Moreover, the court dismissed
without prejudice; Shelton may refile his complaint with a correct response to the
questions asked.
AFFIRMED.
1
Prior to the Prison Litigation Reform Act, dismissals for maliciousness under
§ 1915(e)(2)(B)(i)’s predecessor, § 1915(d), were reviewed for abuse of discretion. Bilal v.
Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001).
3