United States District Court, N.D. Ohio, Western Division
Daniel L. Rittner, Plaintiff,
Melissa Bartlet, et al., Defendants.
MEMORANDUM OPINION AND ORDER
ZOUHARY, U.S. DISTRICT JUDGE
pro se Daniel Rittner filed this Complaint under 42
U.S.C. § 1983 against Melissa Bartlet, Crystal Ester,
David Lin, Carlos Perez, and Jamey Wildman (employees of
Allen Correctional Institution), and Andrew Eddy, John
Gardner, and Roger Wilson (affiliated with the Ohio
Department of Rehabilitation and Correction). Plaintiff
alleges Defendants discriminated against him because of his
disability. He seeks monetary damages.
Complaint is divided into five parts. In the first part,
Rittner contends he made a written request to Bartlet in
November 2016 to attend a re-entry program titled
“T.E.P.” (Doc. 1 at 4). He states Bartlet
informed him he would not be permitted to participate in the
program unless he agreed to attend all the sessions. He
claims his medical conditions make it difficult for him to
meet these requirements, and this restriction was a violation
of the Americans with Disabilities Act (ADA).
second part of his Complaint, Rittner indicates that in March
2015, he submitted a request for an accommodation to Ester to
allow him to wear sunglasses any time and anywhere
(id. at 5). He claims medical doctors issued these
orders for him in July 2006 and April 2011. Ester disputed
Rittner had a valid, current prescription and denied the
request. Rittner and Ester engaged in a verbal altercation,
and Ester advised she would send him to segregation if he
continued to argue with her. Rittner contends Ester violated
third part of the Complaint alleges Rittner submitted a
request for accommodation for help carrying his food tray due
to osteoarthritis in his hands (id. at 6). Ester and
Wildman denied the request, and Wilson denied the appeal of
his grievance. Rittner asserts claims for violation of the
ADA and retaliation.
fourth part of the Complaint, Rittner contends federal Judge
James Carr found prison officials violated his rights under
the ADA when they refused to provide him with a second
hearing aid (id. at 7-8). He cites to Rittner v.
Williams, No. 13 CV 1345 (N.D. Ohio Mar. 29, 2017) (Doc.
139 at 19) as the supporting decision. He also contends
he was transferred to an institution that offers a sex
offender program in retaliation for some unspecified action.
In July 2017, Rittner refused to attend the Comprehensive Sex
Offender Program in part because prison officials did not
provide him with a second hearing aid (id. at 8; Doc
1-7). He claims this was a violation of Judge Carr's
order and a violation of the ADA.
final part of his Complaint, Rittner contends he requested an
ADA accommodation for arthritis in August 2014 (id.
at 8). He states he sent this request to an individual who is
not named as a Defendant in this action. That individual
denied his request. He indicates he received a response from
Wilson on this appeal in September 2015. Rittner asserts,
without explanation, that Ester and Wilson violated his
Fourteenth Amendment right to have his grievances heard in a
timely and meaningful manner.
28 U.S.C. § 1915(a), this Court may authorize the
commencement of an action without prepayment of fees if an
applicant has shown by affidavit that he satisfies the
criterion of poverty. Prisoners, however, become responsible
for paying the entire amount of their filing fees and costs
from the moment they file a complaint. Id. §
1915(b). When an inmate seeks pauper status, the only issue
for the court to determine is whether the inmate pays the
entire fee at the initiation of the proceeding or over a
period of time under an installment plan. Id.
Moreover, absent imminent danger, the benefit of the
installment plan is denied to prisoners who have on three or
more prior occasions, while incarcerated, brought an action
that was dismissed on the grounds that it was frivolous,
malicious, or failed to state a claim upon which relief could
be granted. Id. § 1915(g). This “three
strikes” provision applies to parolees and individuals
on post-release control who, like Rittner, are confined to a
halfway house or other treatment facility as a condition of
their release. See Jackson v. Johnson, 475 F.3d 261,
265-67 (5th Cir. 2007); Wilson v. U.S. Att'y Gen.
Office, 2009 WL 3872144, at *1 (E.D. Mich. 2009).
three-strikes provision will not apply, however, if a
“prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). The imminent danger
exception “is essentially a pleading requirement
subject to the ordinary principles of notice pleading.”
Vandiver v. Vasbinder, 416 F. App'x 560, 562
(6th Cir. 2011). To determine whether the Complaint satisfies
this exception, this Court considers whether Rittner was in
imminent danger at the time it was filed. Id.
(“[T]he plain language of § 1915(g) requires the
imminent danger to be contemporaneous with the
complaint's filing.”). Although the Sixth Circuit
has not offered a precise definition of “imminent
danger, ” it instructs that the threat of serious
physical injury “must be real and proximate.”
Rittner v. Kinder, 290 F. App'x 796, 797 (6th
Cir. 2008). Moreover, “[a]ssertions that the prisoner
has faced danger in the past and allegations that are
conclusory, ridiculous, or clearly baseless do not suffice to
allege imminent harm.” Tucker v. Pentrich, 483
F. App'x 28, 30 (6th Cir. 2012).
has accumulated three strikes within the meaning of Section
1915(g). See Rittner v. Dennis, No. 04 CV 7585 (N.D.
Ohio Nov. 15, 2004); In Re: Rittner, No. 17 MC 46
(N.D. Ohio Oct. 23, 2017); Rittner v. Perez, No. 17
CV 1862 (N.D. Ohio Jan. 1, 2018). This Court therefore must
decide whether Rittner has adequately pled that he was under
“imminent danger of serious physical injury” at
the time this Complaint was filed. Rittner alleges he was
denied an ADA accommodation in August 2014, denied
accommodations to wear sunglasses and to have another inmate
carry his food tray in March 2015, denied acceptance into a
re-entry program in November 2016, and denied a hearing aid
in July 2017. Most of these requests were made one to three
years before Rittner filed the Complaint. The only claim
describing recent events relates to Rittner's placement
in segregation for refusing to attend a mandatory sex
offender program when he was denied a second hearing aid.
None of these claims involve a threat of imminent physical
injury. Accordingly, this Court finds the “imminent
danger” exception to Section 1915(g) does not apply.
Motion to Proceed In Forma Pauperis (Doc. 2) is
denied, and the other pending Motions (Docs. 3, 4) are denied
as moot. This action is dismissed without prejudice under 28
U.S.C. § 1915(g). If Plaintiff wishes to proceed with
this action, he must pay the entire filing fee of $400 within
thirty (30) days of the date of this Order, and then file a
Motion to Reopen the Case. The ...