BREWSTER
v.
STATE OF FLORIDA
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A pro se litigant cannot amend their complaint by raising new allegations in objections to a magistrate judge's report, and the 'imminent danger' exception to the PLRA's three-strikes rule requires a nexus between the alleged danger and the claims asserted.
Plaintiff sought to proceed in forma pauperis but was deemed a "three-striker" under the PLRA. He raised new allegations of fractured fingers and risk…
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This Court has considered, without hearing, the Magistrate Judge's Report and Recommendation, ECF No. 14, and has also reviewed de novo Plaintiff's objections, ECF No. 23. As noted in the report and recommendation, Plaintiff cannot proceed in forma pauperis due to his status as a “three-striker" under the PLRA, and because he has not alleged facts showing he is in imminent danger of physical injury as related to his claims for relief. In his objections, Plaintiff notes that he has multiple fractured fingers that are not being treated and he is at high risk of potential infectious disease (without elaboration), and thus he is in imminent danger of physical injury. However, Plaintiff cannot amend his complaint by providing supplemental allegations in his objections. See e.g., Davis-Harrison v. Chief U.S. Probation Officer M.D. Fla., No. 22-14334, 2024 WL 2874046, at *2 (11th Cir. June 7, 2024) (noting that pro se party cannot amend complaint by arguments made in appellate brief, or more generally on appeal, or through a response to a motion to dismiss); Bennett v. Lynch, Case No.: 4:11-CV-0030-HLM, 2011 WL 13138102, at *1 n.1 (N.D. Ga. Dec. 29, 2011) (holding that pro se plaintiff cannot amend complaint via statements and arguments contained in objections).
Nor is Plaintiff entitled to proceed under the “imminent danger" exception when there is no nexus between the alleged imminent danger—e.g., no treatment for broken fingers and increased risk of infectious disease—and the violations alleged in the complaint. See Britt v. Mangum, Case No.: 1:21-CV-0031-SCJ-JCF, 2021 WL 11708269, at *2 (N.D. Ga. Feb. 5, 2021) (noting that "imminent danger must be fairly traceable to the violations of law asserted in the complaint"). Here, Plaintiff identifies "violations of 'social security' / 'privacy-act' case # 2024CA02184 in and for 'Okaloosa County, Florida,' whom as no federal court," as his claim. ECF No. 12 at 7. The relief sought is a "court order to transfer case #2024CA02184 whom has no jurisdiction without federal judge." Id. Even if Plaintiff could amend his complaint through objections to add the allegations of his broken fingers and increased risk of infection, Plaintiff has failed to provide any nexus tracing these alleged injuries to the alleged violation regarding his state court case.
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Accordingly,
IT IS ORDERED:
The report and recommendation, ECF No. 14, is accepted and adopted, over the Plaintiff's objections, as this Court's opinion. Plaintiff's motion to proceed in forma pauperis, ECF No. 13, is DENIED. The Clerk shall enter judgment stating, "Plaintiff's claims are DISMISSED without prejudice." Plaintiff's remaining pending motions, ECF Nos. 15 and 17, are DENIED as moot. The Clerk shall note on the docket that this case is dismissed pursuant to 28 U.S.C. § 1915(g) and close the file.
SO ORDERED on January 7, 2025.
s/Mark E. Walker Chief United States District Judge
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Brewster v. State, 2024 WL 2874046 (N.D. Fla. 2025)…ration), and thus he is in imminent danger of physical injury. However, Plaintiff cannot amend his complaint by providing supplemental allegations in his objections. *See e.g., Davis-Harrison v. Chief U.S. Probation Officer M.D. Fla.*, No. 22-14334, 2024 WL 2874046, at *2 (11th Cir. June 7, 2024) (noting that *pro se* party cannot amend complaint by arguments made in ---PAGE 1--- Case 4:24-cv-00474-MW-MAF Document 24 Filed 01/07/25 Page 2 of 3 appellate brief, or more generally on appeal, or through a respon…1 / 2
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Soares v. United States Dep't of State (M.D. Fla. 2025)…so only by requesting amendment in, and attaching a defective proposed amended complaint to, his response brief. (See Dkt. 45 at 3, 6–7.) Such actions do not suffice. See Davis-Harrison v. Chief U.S. Prob. Officer Middle Dist. of Fla., No. 22-14334, 2024 WL 2874046, at *2, 2024 U.S. App. LEXIS 13921, at *5 (11th Cir. June 7, 2024) ("[A] plaintiff cannot amend [a] complaint through a response to a - 14 - ---PAGE 14--- motion to dismiss, even if [the plaintiff] is 'proceeding pro se." (quoting Dorman v. Aronofs…
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Mohamad v. Lawgical Insight (M.D. Fla. 2025)…ntiff should amend his pleading if he wants to rely on a new theory of contemporaneous interception for his ECPA claim, (see Dkt. 35 at 8 (contemplating amendment)). See Davis-Harrison v. Chief U.S. Prob. Officer Middle Dist. of Fla., No. 22- 14334, 2024 WL 2874046, at *2, 2024 U.S. App. LEXIS 13921, at *5 (11th Cir. June 7, 2024) (explaining that a "plaintiff cannot amend [a] complaint through a response to a motion to dismiss" (citing Dorman v. Aronofsky, 36 F.4th 1306, 1317 (11th Cir. 2022))). Accordingly,…
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- Brewster v. State, 2024 WL 2874046 (N.D. Fla. 2025)