    14-1284
    Dolberry v. Silvernail


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 9th day of July, two thousand fifteen.

    PRESENT:
                JON O. NEWMAN,
                DENNIS JACOBS,
                REENA RAGGI,
                      Circuit Judges.
    _____________________________________

    Andre Dolberry,

                              Plaintiff-Appellant,

                        v.                                                14-1284 (L);
                                                                          14-2935 (Con)

    Correction Officer Silvernail, et al.,

                              Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                                              Andre Dolberry, pro
                                                                          se, Dannemora, New
                                                                          York.

    FOR DEFENDANTS-APPELLEES:                                             Eric T. Schneiderman,
                                                                          Attorney General of
                                                                          the State of New
                                                                             York, Barbara D.
                                                                             Underwood, Solicitor
                                                                             General, Andrew
                                                                             Ayers, Martin B.
                                                                             Hotvet, Assistant
                                                                             Solicitors General, of
                                                                             Counsel, Albany,
                                                                             New York.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Hurd, J. ; Peebles, M.J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED AND REMANDED.

       Appellant Andre Dolberry, proceeding pro se, appeals the District Court=s judgment

dismissing his 42 U.S.C. ' 1983 complaint as a sanction for misrepresenting his litigation history.

We assume the parties= familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       We review the District Court’s imposition of sanctions under Federal Rule of Civil

Procedure 11 for abuse of discretion. See Muhammad v. Walmart Stores East, L.P., 732 F.3d 104,

108 (2d Cir. 2013). However, when, as here, “the court issues sanctions sua sponte without

offering the offender the opportunity to withdraw the offending submission, our review is more

exacting than under the ordinary abuse-of-discretion standard.” Id. (internal quotation marks

omitted). The court may impose sanctions sua sponte if it finds that a litigant acted in subjective

bad faith. Id. A court’s determinations that a litigant made a false statement and that the

statement was made in bad faith are findings of fact “that will not be disturbed unless clearly

erroneous.” SEC v. Smith, 710 F.3d 87, 97 (2d Cir. 2013).

       Acting upon a Report and Recommendation (“R&R”) of the Magistrate Judge, the District

Court (David Hurd, District Judge) dismissed Dolberry’s complaint because of “his material
misrepresentation to the court, under oath, that he has not brought any prior actions relating to his

imprisonment.” The R&R listed seven cases that Dolberry had filed in district courts within this

Circuit. See R&R at 11-12 n.8. On appeal, Dolberry does not deny that he answered “No” to the

question on the form complaint asking “Have you begun any other lawsuits in federal court which

relate to your imprisonment?” He contends, however, that for either of two reasons his “No”

answer was not false.

       First, as he informed the District Court in opposition to the Defendants’ motion for

summary judgment, he understood the question to ask whether he had filed other lawsuits “related

to the reasons of his imprisonment.” Second, he states in his brief on appeal that because the

question referred to imprisonment in the “singular,” he thought it inquired only about “the

imprisonment one is recently lock [sic] up for.”

       Viewing these contentions in isolation, a fact-finder might reasonably decline to credit

them, although they are not fanciful. Concerned that the wording of the question might have

appeared sufficiently ambiguous to a pro se litigant to have elicited a truthful “No” answer, we

have examined the prior litigation questions and responses on the seven complaints enumerated in

the R&R (No. 1, 98-CV-8572 (SDNY, filed Dec. 4, 1998); No. 2, 99-CV-1087 (SDNY, filed Feb.

16, 1999); No. 3, 99-Civ-1088 (SDNY, filed Feb. 16, 1999); No. 4, 99-CV-2235 (SDNY, filed

Mar. 25, 1999); No. 5, 99-Civ-5774 (SDNY, filed July 21, 1999); No. 6, 02-CV-6418 (WDNY,

filed Aug. 6, 2002); No. 7, 06-CV-6452 (WDNY, filed Sept. 7, 2006)). Taking judicial notice of

these publicly filed documents, see Global Network Communications, Inc. v. City of New York,

458 F.3d 150, 157 (2d Cir. 2006), we note the following questions and Dolberry’s responses:




                                                   3
         In four of the five lawsuits filed in the Southern District of New York (Nos. 1,2,4,and 5),

Dolberry used a printed form that asked: “Have you begun other lawsuits in state or federal court

dealing with the same facts involved in this action or otherwise relating to your imprisonment?” In

Nos. 1, 4, and 5, he answered “Yes,” and in No. 2, he answered “No.” No. 3, also filed in the

Southern District, and Nos. 6 and 7, filed in the Western District, were handwritten and contained

no question or answer concerning prior litigation.

         The fact that Dolberry answered “Yes” three out of the four times that he was asked a

question similar to the one to which he answered “No” in the pending litigation is persuasive

evidence supporting his contention that he believed a “No” answer was truthful on the theory that

the question inquired about the reasons for his imprisonment. Apparently he answered “Yes” in

the prior lawsuits because the question asked not only about lawsuits “relating to your

imprisonment” but also about “other lawsuits dealing with the same facts involved in this action.”

Dolberry had filed such lawsuits and furnished details as required.1 In light of his previous

responses, it cannot fairly be said that his “No” answer to an arguably ambiguous question in the

pending case supports a finding of subjective bad faith.

         Under these circumstances, the sua sponte dismissal of Dolberry’s pending lawsuit for

what the Magistrate Judge and the District Court Judge thought was a false answer to the prior

litigation question cannot stand. We note, however, that the Magistrate Judge recited additional

reasons for recommending dismissal of the current lawsuit, see R&R at 16 n.13. We will

therefore remand to the District Court to reconsider the matter in light of this Order and either

document a sufficient basis for dismissal or turn directly to the Magistrate Judge’s alternative

         1. There is arguable force to Dolberry’s point that he would be unlikely falsely to deny filing prior cases that
could readily be located by checking his name in an electronic database of lawsuits.

                                                           4
recommendation to grant in part and deny in part the Defendants’ motion for summary judgment,

see R&R at 47.

         Finally, we have taken the opportunity to examine the litigation history question on the

form complaints for prisoners’ civil rights complaints under 42 U.S.C. § 1983 currently in use in

five of the six districts of this Circuit, set forth in the margin,2 and note their differences and

arguable ambiguity. If a question is intended to elicit the filing of prior lawsuits concerning

alleged misconduct in prison, consideration might be given to including a phrase such as “lawsuits

concerning anything that occurred while you have been incarcerated.” The Clerk is requested to

send a copy of this Order to the Chief Judges of each District Court in this Circuit for their

consideration and such action, if any, as they may deem appropriate with respect to the wording of

relevant forms.

         Reversed and remanded for further proceedings.

                                                        FOR THE COURT:
                                                        Catherine O=Hagan Wolfe, Clerk




          2. D. Conn.: “1. Have you begun lawsuits in state or federal court dealing with the same facts involved in
this action? 2. If you have filed other lawsuits in this court in the last ten (10) years that are not related to the acts
complained of in [section dealing with pending cause of action], please list them.”
          E.D.N.Y.: “Have you begun other lawsuits in state or federal court dealing with the same facts involved in
this action or otherwise relating to your imprisonment?”
          N.D.N.Y.: “Have you ever filed any other lawsuits in any state and [sic] federal court relating to your
imprisonment?”
          S.D.N.Y.: “A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in
this action? C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?”
          W.D.N.Y.: “A. Have you begun any other lawsuits in state or federal court dealing with the same facts
involved in this action? B. Have you begun any other lawsuits in federal court which relate to your
imprisonment?”
          D.Vt. has no printed form.

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