United States District Court, N.D. Ohio, Western Division
Daniel L. Rittner, Sr., Plaintiff
Kandice Simpson, et al., Defendants
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick, United States District Judge.
se Plaintiff Daniel L. Rittner, Sr. filed this action
under 42 U.S.C. § 1983 against Allen Correctional
Institution (“ACI”) Corrections Officer Kandice
Simpson, and ACI Unit Manager Shawn Wakefield. In the
Complaint, Plaintiff alleges Simpson ordered him to clean
tables in January 2016, despite medical restrictions. He
contends that on January 26, 2016 Wakefield ordered him to
perform any job Simpson had ordered him to complete and
threatened him with additional work if he did not comply. He
asserts claims for deliberate indifference to serious medical
needs and retaliation. He indicates Simpson was fired from
her job. He seeks monetary damages and injunctive relief.
also filed an Application to Proceed In Forma
Pauperis. For the reasons stated below, that Application
U.S.C. § 1915(g)
to 28 U.S.C. § 1915(a), a 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 the Complaint. 28 U.S.C. §
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. 28 U.S.C. § 1915(g). This three strikes
provision applies to parolees and individuals on post release
control who, like Plaintiff, 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. Atty. Gen. Office, No.
1:09-CV-13394, 2009 WL 3872144, at *1 (E.D. Mich. Nov. 17,
2009); Carruthers v. Mills, No. 06-2259-B/P, 2007 WL
676718, at *1 (W.D. Tenn. Mar. 1, 2007).
interpreting the “three strike” language of this
section, the Sixth Circuit has held that “where a
Complaint is dismissed in part without prejudice for failure
to exhaust administrative remedies and in part with prejudice
because ‘it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, ' the dismissal
should be counted as a strike under 28 U.S.C. §
1915(g).” Pointer v. Wilkinson, 502 F.3d 369,
377 (6th Cir. 2007). Dismissals of actions entered prior to
the effective date of the Prisoner Litigation Reform Act also
are counted toward the “three strikes referred to in 28
U.S.C. § 1915(g).” Wilson v. Yaklich, 148
F.3d 596, 604 (6th Cir. 1998).
language of 28 U.S.C. § 1915(g) indicates, the three
strike provision will not apply if a “prisoner is under
imminent danger of serious physical injury.” The
imminent danger exception “is essentially a pleading
requirement subject to the ordinary principles of notice
pleading.” Vandiver v. Vasbinder, No. 08-2602,
2011 WL 1105652, at *3 (6th Cir. March 28, 2011). For
purposes of determining whether a pleading satisfies this
exception, the Court considers whether the Plaintiff is in
imminent danger at the time of the filing of the Complaint.
Vandiver, 2011 WL 1105652 at *2 (noting that
“the 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 has suggested that the threat of serious
physical injury “must be real and proximate.”
Rittner v. Kinder, No. 06-4472, 2008 WL 3889860 (6th
Cir. Aug. 20, 2008). Moreover, “[a]llegations 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, No. 10-1388, 2012 WL 1700701 at *1 (6th Cir.
May 15, 2012).
has accumulated three strikes within the meaning of 28 U.S.C.
§ 1915(g). See Rittner v. Dennis, No. 3:04 CV
7585 (N.D. Ohio Nov. 15, 2004); In Re: Rittner, No.
3:17 mc 46 (Oct. 23, 2017); Rittner v. Perez, No.
3:17 CV 1862 (Jan. 1, 2018). Because Plaintiff has
accumulated three strikes pursuant to 28 U.S.C. §
1915(g), the Court must decide whether he has adequately pled
that he was under “imminent danger of serious physical
injury” at the time his Complaint was filed. Plaintiff
alleges that in January 2016, the Defendants ordered him to
perform work that was contrary to his medical restrictions.
He contends one of the Defendants, Simpson, was fired after
the incident. That incident occurred over a year before
Plaintiff filed this Complaint. There is no suggestion he was
in imminent danger of physical injury at the time the
Complaint was filed. Accordingly, the Court finds the
“imminent danger” exception to § 1915(g)
does not apply in this case.
Plaintiff's Application to Proceed In Forma
Pauperis (Doc. 2) is denied and this action is
dismissed, without prejudice, under 28 U.S.C. §1915(g).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an appeal from this decision could not be taken in good
faith. If Plaintiff wishes to proceed with this action, he
must pay the entire filing fee of $400 within thirty days of
the date of this Order, and then file a Motion to Reopen the
Case. The Clerk's Office shall not accept for filing any
further documents, including a Motion to Reopen the Case,