United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE
se Plaintiff Phillip Douglas Jacobs filed the
above-captioned action under 42 U.S.C. § 1983 against
Ohio Department of Rehabilitation and Correction
(“ODRC”) Director Gary Mohr, Marion Correctional
Institution (“MCI”) Corrections Officer Crawford,
MCI Unit Manager J. Ferguson, MCI Sergeant W. Griffith, and
MCI Inmate Evans. In the Complaint, Plaintiff alleges
Crawford addressed him using profane language. He further
alleges she and Evans announced to the occupants and staff of
the disciplinary housing unit that Plaintiff was under
investigation for making inappropriate sexual advances toward
another inmate. He seeks compensatory and punitive damages.
also filed an Application to Proceed In Forma
Pauperis. That Application is denied and this action is
Complaint is a bit disjointed and, and times, difficult to
interpret. It appears to be a continuation of events alleged
in another civil rights action before me, which Plaintiff
filed on June 6, 2016. See Jacobs v. Mohr, No.
3:16-cv-01374 (ND Ohio filed June 6, 2016). Crawford is named
as a Defendant in that action and the allegations against her
are similar to those alleged in this Complaint.
is incarcerated in MCI serving a life sentence for murder,
felonious assault, and aggravated robbery. He is currently
housed in the 2-Dorm, which he describes as a disciplinary
dorm. He alleges that on July 17, 2016, inmate Brinkley
attacked a corrections officer. Brinkley claimed his actions
were caused by Plaintiff's unwanted sexual advances.
Plaintiff had had a prior complaint from an inmate who
accused him of sexual harassment in May 2014. See Jacobs
v. Mohr, No. 3:16-cv-01374 (ND Ohio filed June 6, 2016)
(Doc. No. 1-4 at 1). MCI prison personnel conducted an
investigation into those allegations and concluded in June
2014 that the charge could not be substantiated. Id.
claims Crawford and Inmate Evans approached him in the 2-Dorm
and confronted him about Brinkley's accusations. He
contends Crawford indicated she and her supervisors were
conducting an investigation, referred to the prior sexual
harassment charge, and told Plaintiff to stop telling others
that Brinkley had a mental health disorder. He alleges she
also addressed him by using profanity, and invited him to
refuse to lock in his cell so he could be sent to O-Block,
which is segregation. He claims she walked the floor of
2-Dorm raving about the incident with Brinkley and insulting
Plaintiff. He alleges that this caused some of the other
prisoners in the dorm to glare at him from a distance. He
states other prisoners approached him in a threatening
manner. He claims Crawford is acting as part of a plan to
aggravate his preexisting heart condition in an attempt to
cause his death.
of Review for 28 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); McGore v. Wigglesworth, 114 F.3d 601,
604 (1997). 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).
interpreting the “three strike” language of this
section, the Sixth Circuit Court of Appeals determined 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.” For the
purposes of interpreting the statute, a Court must consider
whether Plaintiff is in imminent danger at the time of the
filing of the Complaint. Vandiver v. Vasbinder, No.
08-2602, 2011 WL 1105652, at *2 (6th Cir. 2011) (“[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 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). Conclusory or vague allegations of some potential
danger or likelihood of imminent danger are insufficient to
satisfy the exception to the three strikes rule. Thompson
v. Sampson, No. 1:10 CV 231, 2010 WL 1027897, at *3
(W.D. Mich. Mar. 18, 2010). Similarly, a prisoner with three
strikes falls outside the exception when he is no longer in
danger at the initiation of proceedings in federal court.
Vandiver, No. 08-2602, 2011 WL 1105652, at *2.
Moreover, the imminent danger exception “is essentially
a pleading requirement subject to the ordinary principles of
notice pleading.” Vandiver, 2011 WL 1105652,
at *3; see Andrews v. Cervantes, 493 F.3d 1047, 1053
(9th Cir. 2007) (suggesting that Courts should focus solely
on the facts alleged in the Complaint when deciding whether a
prisoner faces imminent danger).
has accumulated three strikes within the meaning of 28 U.S.C.
§ 1915(g). Specifically, Plaintiff filed Jacobs v.
Wilkinson, No. 3:03 CV 7028 (N.D. Ohio dismissed April
21, 2003); Jacobs v. Wilkinson, 1:96 CV 1133 (S.D.
Ohio dismissed Aug. 19, 1998); and Jacobs v. Hall,
No. 3:08 CV 1262 (N.D. Ohio dismissed Oct. 3, 2008), which
were dismissed as frivolous. In addition, Plaintiff's
appeal in Jacobs v. Hall was denied by the Sixth
Circuit on the ground that it was frivolous. Plaintiff's
In Forma Pauperis status was denied under 28 U.S.C.
§1915(g) in Jacobs v. Collins, No. 2:09 CV 282
(S.D. Ohio Sept. 21, 2009), and on appeal of that decision to
the Sixth Circuit. He was denied In Forma Pauperis
status under 28 U.S.C. §1915(g) in Jacobs v.
Mohr, 3:11 CV 2294 (N.D. Ohio Jan. 5, 2012).
Plaintiff has three strikes pursuant to 28 U.S.C.
§1915(g), I must decide whether he has adequately pled
that he was under “imminent danger of serious physical
injury” at the time he filed his Complaint. In his
Complaint, Plaintiff describes an incident which took place
on July 18, 2016. His Complaint was postmarked July 27, 2016.
He contends Crawford addressed him using profanity. That
action did not place him in imminent danger of serious harm.
He claims Crawford and Inmate Evans ranted about
Brinkley's accusations against Plaintiff within earshot
of others in the dorm. He contends that other prisoners in
the dorm glared at him from a distance, and some approached
him in a threatening manner. He does not provide any other
facts to suggest what the inmates were doing that made him
feel threatened. Although Plaintiff states in a conclusory
manner that he is ...