Attwood v. Singletary

                   United States Court of Appeals,

                            Eleventh Circuit.

                               No. 95-5294

                        Non-Argument Calendar.

                 Robert ATTWOOD, Plaintiff-Appellant,

                                      v.

                     Harry SINGLETARY, Defendant,

   Robert Smith, Dr., Tomlini, Captain, Tim Stanford, Captain,
Suarez, Officer, S. Freeman, Officer, Sampson, Officer, C.
Williams, Sgt., Otano, Officer, Javier Garcia, Defendants-
Appellees.

                             Feb. 11, 1997.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-2302-CIV-DLG), Donald L. Graham,
Judge.

Before HATCHETT, Chief Judge, CARNES, Circuit Judge, and KRAVITCH,
Senior Circuit Judge.

     PER CURIAM:

     Appellant     Robert   Attwood    appeals   the   district   court's

dismissal with prejudice of his civil rights claims, brought

pursuant to 42 U.S.C. § 1983, and the imposition of Rule 11

sanctions.   We affirm for the reasons stated below.

                                  FACTS

     On November 8, 1994, Attwood filed a claim in the Southern

District of Florida pursuant to 42 U.S.C. § 1983 for physical

injuries and willful deprivation of proper medical care against

various correctional officers and medical professionals.          Attwood

also moved to proceed as an indigent plaintiff in order to avoid

liability for court fees and costs.          Attwood filed an affidavit

attesting that he had no access to, control over, or income from
any bank account since 1991, and that he owned no real estate or

other valuable property.        Defendants Singletary, Tomlini, Suarez

and Otano filed a motion to dismiss under the provisions of 28

U.S.C. § 1915(d) and Federal Rule of Civil Procedure 11.           On August

14, 1995, the magistrate judge issued a report and recommendation.

The report concluded that Attwood intentionally misstated his

income to obtain indigent status and filed this claim in bad faith.

The district court accepted the findings of the magistrate judge

and dismissed the case against all defendants with prejudice on

September 29, 1995, pursuant to 28 U.S.C. § 1915(d) and Federal

Rule of Civil Procedure 11.

      Attwood is no stranger to the federal civil judicial system.

The    magistrate    judge's     report    detailed    Attwood's   previous

litigation in the district courts of this circuit.             Attwood has

filed at least sixty-one claims in the District Court for the

Southern District of Florida alone.         He has been equally litigious

in the Northern District of Florida.              Attwood regularly brings

suits under the provisions of 42 U.S.C. § 1983 on the same factual

grounds, changing only the venue or the names of the defendants.

      In a recent case filed in the Northern District of Florida,

Attwood v. Singletary,         No. 92-40425-WS, Attwood sued numerous

correctional officers and health care employees of the Department

of    Corrections,   claiming     that    these   defendants   continuously

violated Attwood's constitutional rights. On October 1 and October

7, 1993, the magistrate judge held an evidentiary hearing on the
                                                                                    *
merits of Attwood's motion for a preliminary injunction.                                 In an

exhaustive and detailed thirty-four page report, the magistrate

judge      individually        examined       Attwood's           numerous     claims       for

deprivation      of    medical       care,    denial         of    judicial    access       and

retaliation.      The report concluded that Attwood's claims "had no

reasonable basis in fact" and recommended that the district court

impose Rule 11 sanctions because Attwood deliberately deceived the

court and filed objectively unreasonable claims.

       The magistrate judge assessed the veracity of Attwood's in

forma      pauperis    affidavit       with    equal         diligence.        The       report

recommended that the district court dismiss the claim pursuant to

28 U.S.C. § 1915(d), finding that Attwood deliberately filed a

false      application    to    proceed       as   an   indigent       plaintiff.           The

magistrate judge's report also concluded that Attwood's actions

were       "manipulative       and     designed         to        further     his       abusive

litigiousness" and recommended that Attwood be enjoined from filing

any future suit in any other court that did not comply with the

provisions of Rule 11.          The magistrate judge issued his report and

recommendation on October 25, 1993.                     On February 18, 1994, the

district       court     adopted       and     incorporated            the     report       and

recommendation and dismissed the case with prejudice.

       Subsequent to his filing in the Northern District, Attwood

filed similar claims in the Southern District of Florida pursuant

to 42 U.S.C. § 1983.       See Attwood v. Navarro, No. 92-6819.                         Attwood


       *
      The magistrate judge consolidated all forty suits brought
in the Northern District because the factual bases were similar
and because Attwood sought a preliminary injunction in each case.
also filed a motion and an affidavit in support of his motion to

proceed in forma pauperis.       In a report issued on July 12, 1995,

the district court recommended dismissal with prejudice of Navarro

pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. §

1915(d), finding that Attwood filed a false affidavit in support of

his indigent plaintiff status and had engaged in a pattern of bad

faith litigation.

                                DISCUSSION

      This court reviews sanctions imposed pursuant to Rule 11 or

28 U.S.C. § 1915(d) for an abuse of discretion.              Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110

L.Ed.2d 359 (1990);      Harris v. Menendez, 817 F.2d 737, 741 (11th

Cir.1987).      A   district   court     ruling   based      on    an    erroneous

interpretation of the law or a clearly erroneous reading of the

evidence would constitute an abuse of discretion.                 Cooter & Gell,

496 U.S. at 405, 110 S.Ct. at 2460-61.

     Federal Rule of Civil Procedure 11(b) provides in part:

     By presenting to the court ... a pleading, written motion, or
     other paper, an ... unrepresented party is certifying that to
     the best of the person's knowledge, information, and belief,
     formed after an inquiry reasonable under the circumstances, —

           (1) it is not being presented for any improper purpose,
           such as to harass or to cause unnecessary delay or
           needless increase in the cost of litigation;

           ....

           (3) the allegations and other factual contentions have
           evidentiary support....

Fed.R.Civ.P. 11(b).     Under the 1993 amendments to Rule 11, a party

is responsible for reaffirming all contentions in papers filed

before   the   court   and   informing    the   court   of    any       changes   of
circumstances   that     would    render   a   contention   meritless.

Fed.R.Civ.P. 11 advisory committee's note.      Rule 11 sanctions are

proper "when a party files a pleading that has no reasonable

factual basis" and "when the party files a pleading in bad faith

for an improper purpose."        Pelletier v. Zweifel, 921 F.2d 1465,

1514 (11th Cir.), cert. denied, 502 U.S. 855, 112 S.Ct. 167, 116

L.Ed.2d 131 (1991).

     The in forma pauperis statute, 28 U.S.C. § 1915, ensures that

indigent persons will have equal access to the judicial system.

Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-22,

8 L.Ed.2d 21 (1962).     This court has noted, however, that "[t]he

pauper's affidavit should not be a broad highway into the federal

courts."   Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir.1984).

The statute provides that a court "may dismiss the case if the

allegation of poverty is untrue, or if satisfied that the action is

frivolous or malicious."    28 U.S.C. § 1915(d) (1996).     The purpose

of this provision is to "weed out the litigants who falsely

understate their net worth in order to obtain in forma pauperis

status when they are not entitled to that status based on their

true net worth."      Matthews v. Gaither, 902 F.2d 877, 881 (11th

Cir.1990).    A finding that the plaintiff engaged in bad faith

litigiousness or manipulative tactics warrants dismissal.       Camp v.

Oliver, 798 F.2d 434, 438 (11th Cir.1986).

      We find that the district court properly imposed sanctions

pursuant to 28 U.S.C. § 1915(d) in light of Attwood's false claims

of indigency and his history of abusing the judicial process.      See

Camp, 798 F.2d at 438.     Attwood filed his motion to proceed as an
indigent plaintiff less than nine months after the District Court

for the Northern District of Florida dismissed Attwood's claims

under 28 U.S.C. § 1915(d).     Attwood's affidavit stated that he had

no access to a bank account since 1991 and owned no real property.

These statements are in direct contrast to the credible findings of

the magistrate judge in this case and the findings of the district

court in the Northern District of Florida.        The more recent case of

Attwood v. Navarro, No. 92-6819, is also telling. Attwood contends

that he believed the information truthful at the time of filing.

Even if this court accepted Attwood's contentions as true, Rule 11

requires Attwood to make reasonable inquiries into the veracity of

information filed before the court and to advise the court of any

changes.    Contrary to Attwood's assertion, his obligations under

Rule 11 are not measured solely at the time of filing.          See Turner

v. Sungard Business Systems, Inc., 91 F.3d 1418 (11th Cir.1996).

Furthermore, this court has upheld dismissal where a plaintiff

deliberately failed to advise the court of a prior determination

that the plaintiff was not indigent.         Dawson v. Lennon, 797 F.2d

934 (11th Cir.1986).

      Due process requires notice and an opportunity to respond if

Rule 11 sanctions are imposed.     Didie v. Howes, 988 F.2d 1097, 1105

n. 8 (11th Cir.1993).      Attwood argues that the court failed to

provide a hearing to determine whether he falsely stated his

financial status.    The District Court for the Northern District of

Florida held a two-day hearing on Attwood's financial status almost

one year before Attwood filed this suit and found Attwood not

indigent.     The   district   court   in   the   Northern   District   also
enjoined Attwood from filing any future suit that did not comply

with Rule 11.      Attwood knew of the consequences resulting from

filing a false affidavit in bad faith.           His actions show a history

of bad faith litigiousness and deceit.           We therefore conclude that

the   district    court   properly    dismissed     the    case    and   imposed

sanctions   pursuant      to   Rule   11   and     28     U.S.C.   §     1915(d).

Accordingly, the decision of the district court is affirmed.

      AFFIRMED.