United States District Court, S.D. Ohio, Western Division
James D. Sudberry, Petitioner,
Warden, Lebanon Correctional Institution, Respondent.
MICHAEL R. BARRETT, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the Magistrate Judge's
May 12, 2016 Report and Recommendation
(“R&R”). (Doc. 2).
parties were given proper notice pursuant to Federal Rule of
Civil Procedure 72(b), including notice that the parties
would waive further appeal if they failed to file objections
to the R&R in a timely manner. See United States v.
Walters, 638 F.2d 947, 949-950 (6th Cir. 1981).
Petitioner filed objections on May 18, 2016. (Doc. 3).
reasons stated below, Petitioner's objections are
OVERRULED, and the Court ADOPTS the Magistrate Judge's
May 12, 2016 R&R.
James Sudberry is currently an inmate at Lebanon Correctional
Institution. Petitioner was previously held at Southern Ohio
Correctional Facility (“SOCF”). Petitioner
alleges that while he was incarcerated at SOCF, correctional
officers destroyed his property and used excessive force
against him during a cell search. Petitioner also challenges
the results of a Rules Infraction Board (“RIB”)
hearing at SOCF.
brings his claims pro se under 28 U.S.C. § 2254
as an “extraordinary writ of habeas corpus.”
(Doc. 1, PageID 5). In his petition, Petitioner noted that he
was barred from filing his claim under 42 U.S.C. § 1983
“because of [a] filing fee or [other] vexatious
litigation.” (Id.) Petitioner did not submit a
filing fee or an application to proceed in forma
Magistrate Judge recommends that Petitioner be ordered to pay
the full filing fee required to commence his action. After a
review of Petitioner's claims, the Magistrate Judge
concluded that this is not a habeas corpus case, and
Petitioner should have brought his claims under 42 U.S.C.
§ 1983. The Magistrate Judge concluded that Petitioner
filed his claims as a habeas petition to avoid the three
strikes provision of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g).
Supreme Court has held that a prisoner in state custody
“cannot use a § 1983 action to challenge
‘the fact or duration of his confinement.'”
Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct.
1242, 1245, 161 L.Ed.2d 253 (2005) (quoting Preiser v.
Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d
439 (1973)). In addition, a plaintiff may not bring a civil
rights action under 28 U.S.C. § 2254 in order to
circumvent the three strikes provision in the PLRA, which
forbids an action from proceeding in forma pauperis
if the plaintiff has brought more than three lawsuits that
were frivolous, malicious, or failed to state a claim upon
which relief could be granted. See 28 U.S.C. §
1915(g). Petitioner is ineligible to bring additional actions
in forma pauperis under § 1915(g). As the
Magistrate Judge explained, Petitioner has had three of his
cases dismissed as being frivolous or for failing to state a
claim; and in two of his cases, Petitioner's application
to proceed in forma pauperis was denied under §
1915(g). (See Doc. 2 at PageID 21) (collecting cases).
cannot disguise his claims as a habeas corpus case under
§ 2254 in order to avoid paying the full filing fee
imposed by the PLRA. See Kincade v. Sparkman, 117
F.3d 949, 952 (6th Cir. 1997) (holding a district court must
assess filing fees if a prisoner cloaks a civil action under
§ 2554 or § 2255). Petitioner has previously
attempted to file a civil action under a habeas corpus claim
to avoid court filing fees. Sudberry v. Morgan, Case
No: 1:14-cv-163 (S.D. Ohio Feb. 10, 2015) (Doc. 5).
objections, Petitioner does not dispute that he had prior
actions dismissed as frivolous, malicious, or for failure to
state a claim upon which relief could be granted, but instead
argues that he falls under the imminent danger exception to
28 U.S.C. § 1915(g). Petitioner alleges additional,
previously unreported civil rights violations by the Search
and Rescue Team (SRT) at SOCF. (Doc. 3, PageID 24). These new
allegations are general and unspecified, except that
Petitioner alleges he was placed “in a cell that
reached 124ºF [and he] had a heat-stroke nearly almost
dying.” (Id.) Petitioner does not explain
whether this alleged incident happened prior or subsequent to
the events listed in the original petition.
satisfy the imminent danger exception, a plaintiff must both
(1) satisfy a temporal requirement and (2) meet a
reasonableness standard. See Vandiver v. Prison Health
Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). To meet
the first requirement, the plaintiff must sufficiently allege
that “the threat or prison condition [is] real and
proximate and the danger of serious physical
injury…exist[s] at the time the complaint is
filed.” Id. (quoting Rittner v.
Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008)). The
threat of danger must be contemporary or in the future;
“[a]llegations of past dangers are insufficient to
invoke the exception.” Taylor v. First Med.
Mgmt., 508 Fed.Appx. 488, 492 (6th Cir. 2012). In his
petition, Petitioner does not allege particular facts
suggesting any specific future danger of harm; instead, he
outlines an alleged incident which previously occurred at
SOCF. (Doc. 1, PageID 16-18). In the objections, Petitioner
describes prior incidents and one undated allegation
regarding the temperature of his cell at SOCF. (Doc. 3,
PageID 24-25). Moreover, Petitioner was transferred to
Lebanon Correctional Institution before he filed his
petition. “[A] prisoner's assertion that he or she
faced danger in the past is insufficient to invoke the
[imminent danger] exception.” Vandiver, 727
F.3d at 585. Therefore, the claims pertaining to
Petitioner's incarceration at SOCF do not satisfy the
temporal element of the imminent danger exception to §