The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
ALPHONSO TARODD TANNER,
Plaintiff,
v. Case No.: 3:21cv4644/MCR/ZCB
SGT. FRENCH, et al.,
Defendants.
____________________/
ORDER
The magistrate judge issued a Report and Recommendation on June 22, 2022.
ECF No. 16. The Court furnished the plaintiff a copy of the Report and
Recommendation and afforded an opportunity to file objections pursuant to Title 28,
United States Code, Section 636(b)(1). No timely objection has been filed.
Having considered the Report and Recommendation, and the record, the Court
has determined the Report and Recommendation should be adopted, and therefore
the motion to amend is denied as moot. The Report and Recommendation correctly
noted that amendment would be an inadequate sanction. See ECF No. 16 at 5 n.4.
Nonetheless, Plaintiff filed a Motion to Submit Attached Amended Supplemental
Complaint, ECF No. 17, instead of an objection, asserting he did not have access to
his property or the library in an attempt to excuse his failure to disclose all of his
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previous cases. The Eleventh Circuit has rejected similar excuses for the failure to
disclose all previous cases. See Shelton v. Rohrs, 406 F. App’x 340, 340–41 (11th
Cir. 2010) (unpublished) (affirming dismissal without prejudice for a prisoner’s
abuse of judicial process where the plaintiff failed to disclose four previous civil
actions, and explaining that even without access to his legal materials, he would have
known that he had filed multiple previous lawsuits); Hood v. Tompkins, 197 F.
App’x 818, 819 (11th Cir. 2006) (unpublished) (affirming dismissal as a sanction
for providing false statements about prior lawsuits in answer to unambiguous
questions on a complaint form, after concluding that, even though the inmate had
conceded the incomplete disclosure in objections to the report and recommendation,
allowing the suit to continue would overlook his abuse of judicial process). Thus,
the argument is unavailing.
In his request to amend the complaint, Plaintiff also asserts he is in imminent
danger at his current institution, Jackson Correctional Institution. Plaintiff alleges
certain prison officials at Jackson C.I. threaten him daily and have beaten him up
twice in an attempt to prevent him from pursuing this lawsuit. While imminent
danger is listed as an exception to the three strikes provision, 28 U.S.C. § 1915(g),
it is not a basis for avoiding dismissal for a malicious filing under § 1915(2)(B)(i).
Further, to fall within the imminent danger exception, the allegations of the
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complaint must demonstrate the plaintiff is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson, 387 F.3d 1344 (11th Cir.
2004). Plaintiff’s complaint in this case, and the proposed amended complaint,
concern events that occurred two years ago at one of Plaintiff’s former institutions
(Santa Rosa Correctional Institution). None of the prison officials named as
Defendants are involved in the current alleged threats and beatings at Plaintiff’s
current institution. Although Plaintiff attempts to connect them by alleging his
present attackers are “friends” with one of the Defendants, this general assertion,
“absent specific fact allegations of ongoing serious physical injury, or of a pattern
of misconduct evidencing the likelihood of imminent serious physical injury” is
insufficient. Daker v. Ward, 999 F.3d 1300, 1311 (11th Cir. 2021) (quoting Brown,
387 F.3d at 1349), cert. denied, 142 S. Ct. 2716 (2022). Leave to amend is denied.
Plaintiff may pursue claims about his present circumstances at Jackson C.I. in
a separate civil rights lawsuit. However, because Plaintiff’s motion to amend in this
suit asserts he is in imminent danger, the Clerk of the Court is directed to transmit
immediately, via email and/or facsimile, a copy of Plaintiff’s motion, ECF No. 17,
and this order to Warden Scott May at Jackson C.I. This action is merely a
notification to the appropriate official and not a determination of the veracity or
merits of Plaintiff’s assertions.
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Accordingly, it is ORDERED:
1. The magistrate judge’s Report and Recommendation, ECF No. 16, is
adopted and incorporated by reference in this order, and Plaintiff’s Request to
Submit attached Amended/Supplemental Complaint, ECF No. 17, is therefore
MOOT and alternatively DENIED.
2. This case is DISMISSED without prejudice as malicious, pursuant to
28 U.S.C. § 1915A(b)(1).
3. The Clerk of Court is directed to enter judgment in accordance with this
order and close the case.
4. The Clerk is also directed to transmit immediately, via email and/or
facsimile, a copy of Plaintiff’s motion, ECF No. 17, and this order to Warden Scott
May at the Jackson Correctional Institution.
DONE AND ORDERED this 28th day of July 2022.
M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
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