Lawson, Avion v. Captain Weinrich et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 3 Motion for Leave to Proceed in forma pauperis filed by Avion Lawson, 5 Motion for Leave to Proceed in forma pauperis filed by Avion Lawson, 24 Motion for Miscellaneous Relief filed by Avion Lawson, 25 Motion for Leave to File, Motion to Amend/Correct filed by Avion Lawson, 27 Motion for Miscellaneous Relief filed by Avion Lawson, 29 Report and Recommendations,, ; denying as moot 3 Motion for Leave to Proceed in forma pa uperis ; denying as moot 5 Motion for Leave to Proceed in forma pauperis ; denying as moot 24 Motion ; denying as moot 25 Motion for Leave to File ; denying as moot 25 Motion to Amend/Correct ; denying as moot 27 Motion ; Ado pting 29 Report and Recommendations on 3 Motion for Leave to Proceed in forma pauperis filed by Avion Lawson, 5 Motion for Leave to Proceed in forma pauperis filed by Avion Lawson, 24 Motion for Miscellaneous Relief filed by Avion Laws on, 25 Motion for Leave to File, Motion to Amend/Correct filed by Avion Lawson, 27 Motion for Miscellaneous Relief filed by Avion Lawson, 29 Report and Recommendations,, Closing Case. Motions terminated: 29 REPORT AND RECOMMENDAT IONS on 42 USC 1983 case re 22 Evidentiary Hearing,, Recommending Plaintiff's Complaint, DE 1, be DISMISSED WITHOUT PREJUDICE under under § 1915(g)'s three-strikes provision; 2. Plaintiff's Application to, 25 MOTION for Leave to File MOTION to Amend/Correct 1 Complaint 42 USC 1983 or Bivens filed by Avion Lawson, 3 MOTION for Leave to Proceed in forma pauperis filed by Avion Lawson, 24 MOTION Genuine Emergency filed by Avion Lawson, 5 MOTION for Leave to Proceed in forma pauperis filed by Avion Lawson, 27 MOTION For Intervention To Prevent Imminment Death filed by Avion Lawson. Signed by Judge Kathleen M. Williams on 6/3/2024. See attached document for full details. (drz)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-14022-CV-WILLIAMS/MAYNARD
AVION LAWSON,
Plaintiff,
v.
CAPTAIN K. WEINRICH,
et al.,
Defendants.

/
ORDER

THIS MATTER is before the Court on the Report and Recommendations (the
“Report”) of Magistrate Judge Shaniek Maynard (“Judge Maynard”) following an
evidentiary hearing on the limited issue regarding whether the civil rights complaint
(“Complaint”) brought pursuant to 42 U.S.C. § 1983 by Plaintiff Avion Lawson (“Plaintiff”)
should be dismissed without prejudice under the “three-strikes rule” of the Prison
Litigation Reform Act (“PLRA”). (DE 29.) 1 The Report recommends that the Complaint be
dismissed without prejudice. (DE 29 at 2,12–13). Petitioner filed Objections (DE 32) to
the Report challenging Judge Maynard’s findings and recommendations. Defendants
have filed a Response (DE 33) to Plaintiff’s Objections arguing that Plaintiff has not
satisfied the imminent danger exception, that Judge Maynard’s Report should be
adopted, and that the Complaint should be dismissed without prejudice. (Id. at 2–5). Upon

Unless otherwise noted, the Court relies on the pagination generated by the Case
Management/Electronic Case Files (“CM/ECF”) system, which appears in the header on
all filings. Citations to a specific docket entry in this case are designated “(DE ___).”

1

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de novo review of the § 1983 Complaint (DE 1), Judge Maynard’s Report (DE 29),
Petitioner’s Objections (DE 32), the Defendants’ Response (DE 33), the pertinent
records, 2 and applicable authorities, the Court ADOPTS the Report’s findings and
recommendations, and the Complaint is DISMISSED WITHOUT PREJUDICE.
I.

APPLICABLE LEGAL PRINCIPLES
A district court may accept, reject, or modify a magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). Those portions of a report to which objection is
made are accorded de novo review, if those objections “[p]inpoint the specific findings
that the party disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir.
2009); see also Fed. R. Civ. P. 72(b)(3). Any portions of a report to which no specific
objection is made are reviewed only for clear error. Fed. R. Civ. P. 72. Although Rule 72
itself is silent on the standard of review, the Supreme Court has acknowledged that
Congress’s intent was to require de novo review only where objections have been
properly filed—and not when neither party objects. See Thomas v. Arn, 474 U.S. 140,
150 (1985) (“It does not appear that Congress intended to require district court review of
a magistrate [judge’s] factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”). Thus, the “[f]ailure to object to the
magistrate [judge’s] factual findings after notice precludes a later attack on these
findings.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright,
677 F.2d 404, 410 (5th Cir. 1982)).

The Court takes judicial notice of its own records. See Fed. R. Evid. 201; Nguyen v.
United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009) (quoting United States v. Glover,
179 F.3d 1300, 1302 n.5 (11th Cir. 1999) (“A court may take judicial notice of its own
records and the records of inferior courts.”) (citation omitted).

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II.

DISCUSSION
In his Objections, Plaintiff reiterates arguments raised in the Complaint (DE 1) that

he is entitled to proceed in forma pauperis because he meets the imminent danger
exception to the three-strikes rule under 28 U.S.C. § 1915(g). (DE 32 at 2.) Plaintiff
requests that the Court take judicial notice of prior lawsuits he has filed where he has also
alleged that he meets the imminent danger exception. (Id.) Plaintiff further argues that he
is still housed at Martin Correctional Institution (“Martin CI”) and continues to be in
imminent danger of serious bodily harm. (Id. at 3.) Plaintiff claims that, at the evidentiary
hearing, the opposing party did not provide a “‘scintilla’ of evidence” regarding Plaintiff’s
allegations. (Id. at 6.) In their Response, the Defendants argue that medical records
provided by Plaintiff prior to the evidentiary hearing refute his claim that he was “suicidal”,
and further reveals that Plaintiff has had access to continuous, ongoing professional
medical care. (DE 33 at 2–3.)
In her Report, Judge Maynard noted Plaintiff has alleged he qualifies for the
imminent danger exception because “‘[a]t the time of filing this Complaint, Plaintiff is still
and constantly under imminent danger of serious physical injury by Defendants whom
[sic] plotted to injure and/or possibly kills Mr. Lawson as promised reprisal,” and because
he “[i]s a mentally ill prisoner strongly contemplating suicide at the time of filing [ ] this
Complaint 1915(g).” (DE 29 at 6 quoting [DE 1 at 2, 4].) At the hearing, Judge Maynard
considered exhibits filed by Plaintiff which included some of Plaintiff’s medical and mental
health records from February 2024—those “[n]earest to when Plaintiff signed and filed his
Complaint.” (Id. at 8–9.) Having reviewed the records and considered Plaintiff’s testimony,
Judge Maynard found “[t]hat Plaintiff has failed to prove his claim of imminent danger of
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serious physical injury and has not established the imminent danger exception to the
PLRA’s three strikes provision.” (Id. at 9.) Judge Maynard found that records provided by
Plaintiff in January 2024 establish he continues to be seen by medical and mental health
staff, and multiple records indicated that “Plaintiff did not report feeling suicidal or in
severe distress.” (Id. at 10.) To the contrary, Judge Maynard found those records
demonstrated Plaintiff “[a]ppeared fully oriented, was calm and cooperative, and
appeared to be dealing with manageable depression and mild to moderate
mental/emotional impairment.” (Id.) Thus, Judge Maynard concluded that “[t]his access
to continuous ongoing professional care and treatment mitigates any suggestion that
Plaintiff is in imminent danger of serious physical injury at the hands of prison officials
and distinguishes this case from those cases in which the Eleventh Circuit has held that
an inmate’s allegations concerning his mental condition satisfied the ‘imminent danger’
exception. (Id.) (citations omitted). According to Judge Maynard, Plaintiff’s “[c]laims as a
whole . . . do not rise to the level of circumstances similar to those recognized by the
Eleventh Circuit as sufficiently imminent and dangerous to satisfy § 1915(g).” Id. (citations
omitted). Judge Maynard further found that Plaintiff is an admitted “three-striker,” “[w]ho
has not made a colorable showing that he was under imminent danger of serious physical
injury when he commenced this civil rights case. Instead, Plaintiff’s allegations of
imminent danger are reminiscent of assertions he has set forth on multiple previous
occasions in attempts to establish imminent danger, which have been rejected by more
than one court. (Id.) (citation omitted). Judge Maynard thus found that Plaintiff “[i]s barred
from proceeding IFP and was required to pay the filing fee at the time he commenced this
case,” therefore, Judge Maynard recommends that this case be dismissed without
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prejudice. 3 (Id.) The Court finds Judge Maynard’s Report and Recommendations to be
cogent and well reasoned. For the reasons set forth in the Report, the Court finds Plaintiff
has not demonstrated that he meets the imminent danger exception pursuant to
§ 1915(g). 4
III.

CONCLUSION
Accordingly, upon review of the record, Judge Maynard’s Report, and relevant

authorities, it is ORDERED AND ADJUDGED as follows:
1.

Judge Maynard’s Report and Recommendations (DE 29) that this case be
DISMISSED without prejudice is AFFIRMED AND ADOPTED.

2.

Plaintiff’s Objections (DE 32) are OVERRULED.

Finally, Judge Maynard joined other judges in this Court, “[c]autioning Plaintiff against
knowingly abusing the judicial process by filing multiple lawsuits, sometimes within weeks
of one another, raising virtually identical claims” as “[s]uch filings constitute a serious and
unwarranted drain on our judicial system.” (Id. at 12.)
3

To the extent Plaintiff generally alleges facts and arguments relating to the imminent
danger exception set forth in the Complaint, which the Report thoroughly addressed, such
argument is improper. See Leatherwood v. Anna’s Linens Co., 384 F. App’x 853, 857
(11th Cir. 2010) (noting that “‘[p]arties filing objections to a magistrate judge’s report and
recommendations must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the district court.” Id.
(citations omitted). Further, to the extent Plaintiff makes allegations and arguments that
were not previously presented to the Magistrate Judge, the Court declines to consider
them. See Lodge v. Kondaur Capital Corp., 750 F.3d 123, 1274 (11th Cir. 2014) (holding
that a district court does not abuse its discretion by declining to consider evidence never
mentioned before or submitted to the magistrate judge); Williams v. McNeil, 557 F.3d
1287, 1292 (11th Cir. 2009) (holding that a district court has discretion to decline to
consider a party’s argument when that argument was not first presented to the magistrate
judge). Indeed, “[r]equiring the district court to consider new arguments raised in the
objections effectively would eliminate efficiencies gained through the Magistrates Act and
would unfairly benefit litigants who could change their tactics after issuance of the
magistrate judge’s report and recommendation.” Williams, 557 F.3d at 1219.
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3.

The Complaint (DE 1) is DISMISSED WITHOUT PREJUDICE.

4.

All pending motions are DENIED AS MOOT.

5.

The Clerk of Court shall CLOSE THIS CASE.

DONE AND ORDERED in Chambers at Miami, Florida, this 3rd day of June, 2024.

Copies furnished to:
Avion Lawson, Pro Se
DC#W38414
Martin Correctional Institution
Inmate Mail/Parcels
1150 SW Allapattah Road
Indiantown, FL 34956
Barbara Ann Junge, Ass’t Att’y Gen.
Alexander K. Beg, Ass’t Atty’y Gen.
Florida Attorney General's Office
110 S.E. 6th St., 10th Floor
Fort Lauderdale, FL 33301
Email: [e-mail]
Email: [e-mail]

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