UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION
SHER’MON A. ALLEN,
Plaintiff,
v. Case No. 5:26-cv-199-TKW-MJF
ROTTER, et al.,
Defendants. / REPORT AND RECOMMENDATION Plaintiff Sher’mon A. Allen, FDC# TO7183, filed a complaint under 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. Docs. 1 & 2. The District Court should dismiss this action because Allen is barred by 28 U.S.C. § 1915(g) from proceeding in forma pauperis and Plaintiff failed to pay the filing fee upon commencing this action. BACKGROUND On July 12, 2026, Plaintiff initiated this civil action. Doc. 1. Plaintiff is an inmate of the Florida Department of Corrections whom the FDC currently houses at the Suwanee Correctional Institution. Doc. 1 at 3. Plaintiff did not pay the filing fee. Instead, Plaintiff moved for leave to proceed in formal pauperis. Doc. 2. Plaintiff alleges that Defendants used excessive force and retaliated
against Plaintiff while he was confined at the Washington Correctional Institution. Doc. 1 at 8. Plaintiff alleges that the relevant events occurred between December 13, 2022, and February 7, 2023. Id. at 10.
DISCUSSION Under the so-called “three-strikes rule” in 28 U.S.C. § 1915(g), a prisoner is prohibited from proceeding in forma pauperis if the prisoner
previously filed three or more actions that were dismissed for frivolity, maliciousness, or failure to state a claim. 28 U.S.C. § 1915(g). A prisoner who is barred from proceeding in forma pauperis must pay the filing fee
at the time he initiates his lawsuit, and failure to do so warrants dismissal of his case without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324
(11th Cir. 2001). A dismissal for abuse of the judicial process is a dismissal for maliciousness and thus counts as a strike. See Burrell v. Warden I, 857
F. App’x. 624, 625 (11th Cir. 2021) (“An action is malicious when a prisoner misrepresents his prior litigation history on a complaint form requiring disclosure of such history and signs the complaint under penalty of perjury, as such a complaint is an abuse of the judicial
process.”) (citation omitted). The undersigned takes judicial notice that Plaintiff has incurred three strikes under section 1915(g):
• Allen v. Sutton, No. 3:24-cv-252-LC-HTC (N.D. Fla.) (civil rights action dismissed on October 9, 2024, for failure to state a claim);
• Allen v. Martin, No. 3:25-cv-180-LC-HTC (N.D. Fla.) (civil rights action dismissed on March 24, 2025, as malicious); and
• Allen v. Wallace, No. 5:22-cv-238-TKW-MJF (N.D. Fla.) (civil rights action dismissed on January 4, 2023, as malicious).
At least one other district court has recognized that Plaintiff has incurred three strikes. See Attachment 1 to the R&R. Because Plaintiff has incurred three strikes, Plaintiff may not litigate this case in forma pauperis unless he shows that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004). To qualify under that exception to the three-strike rule, Plaintiff’s complaint must include “specific, credible allegations of imminent danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (quotation omitted). General allegations are insufficient to invoke section 1915(g)’s exception. See Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003). Furthermore, an allegation of imminent danger “requires a relationship between the imminent danger alleged . . . and relief sought in the underlying claim.” Meyers v. Commr. of Soc. Sec. Admin., 801 F.
App’x 90, 95 (4th Cir. 2020); Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009); Alston v. F.B.I., 747 F. Supp. 2d 28, 31 (D.D.C. 2010). Plaintiff’s complaint alleges misconduct that occurred between
December 2022 and February 2023, while Plaintiff was confined at Washington Correctional Institution. Doc. 1 at 10. Thus, the events giving rise to Plaintiff’s claims are temporally removed from the present by more
than three years, and they occurred at a different institution than the one in which the FDC currently houses Plaintiff. Nevertheless, Plaintiff attempts to avoid dismissal by asserting
that he is in imminent danger. Doc. 1 at 11. Plaintiff alleges that on July 2, 2026—more than three years after the alleged incidents giving rise to the present case—Officer Burnham and Office Hueck used excessive
force on Plaintiff while Plaintiff was confined at the Suwanee Correctional Institution. Id. But this allegation of excessive force is unrelated to events alleged and the relief sought in Plaintiff’s complaint. Furthermore, Plaintiff filed a separate lawsuit regarding Burnham
and Hueck alleged use of excessive force. See Attachment 2 to the R&R.1 United States District Judge Marcia Morales Howard concluded that Plaintiff’s allegations against Burnham and Hueck did not satisfy the
imminent danger exception and dismissed the case pursuant to 28 U.S.C. § 1915(g). See Attachment 1 to the R&R. Because Plaintiff did not allege in his complaint that he was under
imminent danger of serious physical injury, the law barred Plaintiff from proceeding in forma pauperis at the time he initiated this civil action, and Plaintiff cannot cure this deficiency by paying the filing fee at a later
date. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). CONCLUSION For the reasons set forth above, the undersigned respectfully
RECOMMENDS that the District Court: 1. DENY Plaintiff’s motion for leave to proceed in forma pauperis.
1 Plaintiff did not use the court-approved form for his complaint and did not disclose this case in his complaint. Thus, the District Court also could dismiss this civil action Plaintiff’s failure to comply with the Local Rules. McNair v. Johnson, 143 F.4th 1301, 1307, 1308 (11th Cir. 2025). 2. DISMISS this action without prejudice.
3. DIRECT the clerk of the court to close this case file. At Pensacola, Florida, this 12th day of August 2026. /s/ Michael J. Frank Michael J. Frank United States Magistrate Judge
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION
SHER’MON A. ALLEN,
Plaintiff,
v. Case No. 5:26-cv-199-TKW-MJF
ROTTER, et al.,
Defendants. / REPORT AND RECOMMENDATION Plaintiff Sher’mon A. Allen, FDC# TO7183, filed a complaint under 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. Docs. 1 & 2. The District Court should dismiss this action because Allen is barred by 28 U.S.C. § 1915(g) from proceeding in forma pauperis and Plaintiff failed to pay the filing fee upon commencing this action. BACKGROUND On July 12, 2026, Plaintiff initiated this civil action. Doc. 1. Plaintiff is an inmate of the Florida Department of Corrections whom the FDC currently houses at the Suwanee Correctional Institution. Doc. 1 at 3. Plaintiff did not pay the filing fee. Instead, Plaintiff moved for leave to proceed in formal pauperis. Doc. 2. Plaintiff alleges that Defendants used excessive force and retaliated
against Plaintiff while he was confined at the Washington Correctional Institution. Doc. 1 at 8. Plaintiff alleges that the relevant events occurred between December 13, 2022, and February 7, 2023. Id. at 10.
DISCUSSION Under the so-called “three-strikes rule” in 28 U.S.C. § 1915(g), a prisoner is prohibited from proceeding in forma pauperis if the prisoner
previously filed three or more actions that were dismissed for frivolity, maliciousness, or failure to state a claim. 28 U.S.C. § 1915(g). A prisoner who is barred from proceeding in forma pauperis must pay the filing fee
at the time he initiates his lawsuit, and failure to do so warrants dismissal of his case without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324
(11th Cir. 2001). A dismissal for abuse of the judicial process is a dismissal for maliciousness and thus counts as a strike. See Burrell v. Warden I, 857
F. App’x. 624, 625 (11th Cir. 2021) (“An action is malicious when a prisoner misrepresents his prior litigation history on a complaint form requiring disclosure of such history and signs the complaint under penalty of perjury, as such a complaint is an abuse of the judicial
process.”) (citation omitted). The undersigned takes judicial notice that Plaintiff has incurred three strikes under section 1915(g):
• Allen v. Sutton, No. 3:24-cv-252-LC-HTC (N.D. Fla.) (civil rights action dismissed on October 9, 2024, for failure to state a claim);
• Allen v. Martin, No. 3:25-cv-180-LC-HTC (N.D. Fla.) (civil rights action dismissed on March 24, 2025, as malicious); and
• Allen v. Wallace, No. 5:22-cv-238-TKW-MJF (N.D. Fla.) (civil rights action dismissed on January 4, 2023, as malicious).
At least one other district court has recognized that Plaintiff has incurred three strikes. See Attachment 1 to the R&R. Because Plaintiff has incurred three strikes, Plaintiff may not litigate this case in forma pauperis unless he shows that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004). To qualify under that exception to the three-strike rule, Plaintiff’s complaint must include “specific, credible allegations of imminent danger of serious physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir. 2011) (quotation omitted). General allegations are insufficient to invoke section 1915(g)’s exception. See Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003). Furthermore, an allegation of imminent danger “requires a relationship between the imminent danger alleged . . . and relief sought in the underlying claim.” Meyers v. Commr. of Soc. Sec. Admin., 801 F.
App’x 90, 95 (4th Cir. 2020); Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009); Alston v. F.B.I., 747 F. Supp. 2d 28, 31 (D.D.C. 2010). Plaintiff’s complaint alleges misconduct that occurred between
December 2022 and February 2023, while Plaintiff was confined at Washington Correctional Institution. Doc. 1 at 10. Thus, the events giving rise to Plaintiff’s claims are temporally removed from the present by more
than three years, and they occurred at a different institution than the one in which the FDC currently houses Plaintiff. Nevertheless, Plaintiff attempts to avoid dismissal by asserting
that he is in imminent danger. Doc. 1 at 11. Plaintiff alleges that on July 2, 2026—more than three years after the alleged incidents giving rise to the present case—Officer Burnham and Office Hueck used excessive
force on Plaintiff while Plaintiff was confined at the Suwanee Correctional Institution. Id. But this allegation of excessive force is unrelated to events alleged and the relief sought in Plaintiff’s complaint. Furthermore, Plaintiff filed a separate lawsuit regarding Burnham
and Hueck alleged use of excessive force. See Attachment 2 to the R&R.1 United States District Judge Marcia Morales Howard concluded that Plaintiff’s allegations against Burnham and Hueck did not satisfy the
imminent danger exception and dismissed the case pursuant to 28 U.S.C. § 1915(g). See Attachment 1 to the R&R. Because Plaintiff did not allege in his complaint that he was under
imminent danger of serious physical injury, the law barred Plaintiff from proceeding in forma pauperis at the time he initiated this civil action, and Plaintiff cannot cure this deficiency by paying the filing fee at a later
date. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). CONCLUSION For the reasons set forth above, the undersigned respectfully
RECOMMENDS that the District Court: 1. DENY Plaintiff’s motion for leave to proceed in forma pauperis.
1 Plaintiff did not use the court-approved form for his complaint and did not disclose this case in his complaint. Thus, the District Court also could dismiss this civil action Plaintiff’s failure to comply with the Local Rules. McNair v. Johnson, 143 F.4th 1301, 1307, 1308 (11th Cir. 2025). 2. DISMISS this action without prejudice.
3. DIRECT the clerk of the court to close this case file. At Pensacola, Florida, this 12th day of August 2026. /s/ Michael J. Frank Michael J. Frank United States Magistrate Judge
NOTICE TO THE PARTIES The District Court referred this case to a magistrate judge to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court’s internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the District Court’s order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.