United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
Jerone McDougald, an inmate at the Southern Ohio Correctional
Facility and frequent filer in this Court,  has filed a pro
se prisoner civil rights complaint without paying the filing
fee or submitting a motion for leave to proceed in formsa
pauperis. (See Doc. 1). In the complaint, Mr. McDougald
claims that on August 7, 2017 he was stripped naked, sprayed
with OC spray by defendant Shannon Bear, and was denied
medical treatment by all named defendants following the
incident. (See Doc. 1 at PageID 6-7). For relief, he
seeks monetary damages. (Id. at PageID 7).
Court would ordinarily issue a Deficiency Order because Mr.
McDougald has failed to pay the filing fee or file a motion
for leave to proceed in forma pauperis. However, the
Court will not enter a Deficiency Order at this time because
McDougald is not entitled to proceed with this matter in
forma pauperis in view of his history of frivolous
prisoner's right to proceed in forma pauperis
has been restricted by Congress. In accordance with section
804(d) of the Prison Litigation Reform Act (PLRA) of 1995,
Pub. L. No. 104-134, 110 Stat. 1321, amending 28 U.S.C.
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
U.S.C. § 1915(g).
McDougald is prohibited by § 1915(g) from proceeding
in forma pauperis in this case because three prior
complaints filed by him while he has been a prisoner were
dismissed with prejudice for failure to state a claim upon
which relief may be granted. See McDougald v.
Sammons, No. 1:17-cv-91 (Barrett, J.; Bowman, M.J.)
(S.D. Ohio Feb 10, 2017) (Doc. 7, 10, 11) (dismissal for
failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1));McDougald v. Stone, No. 1:17-cv-72
(Dlott, J.; Bowman, M.J.) (S.D. Ohio Feb. 1, 2017) (Doc. 5,
17, 20, 26, 27) (dismissal for failure to state a claim upon
which relief may be granted); McDougald v. Ahmad,
No. 1:16-cv-500 (Dlott, J.; Bowman, M.J.) (S.D. Ohio Apr. 28,
2016) (Doc. 27, 34, 35) (dismissal for judgment on the
pleadings for failure to state a claim upon which relief may
be granted under 28 U.S.C. § 1915(e)(2)). The previous
three dismissals for failure to state a claim upon which
relief may be granted prevent Mr. McDougald from obtaining
pauper status in the instant action.
of his three "strikes," Mr. McDougald may not
proceed in forma pauperis unless he falls within the
statutory exception set forth in 28 U.S.C. § 1915(g),
which applies to prisoners who are "under imminent
danger of serious physical injury." Under the plain
language of the statute, plaintiff must be in imminent danger
at the time that he seeks to file his suit in federal court
to qualify for the exception to the "three strikes"
provision of § 1915(g). See Vandiver v.
Vasbinder, 416 Fed.Appx. 560, 561-62 (6th Cir. 2011)
(and cases cited therein) (holding in accordance with other
circuit courts that "the plain language of §
1915(g) requires the imminent danger to be contemporaneous
with the complaint's filing"); accord Chavis v.
Chappius, 618 F.3d 162, 169 (2nd Cir. 2010) (citing
Malik v. McGinnis, 293 F.3d 559, 563 (2nd Cir.
2002)); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d
307, 312 (3rd Cir. 2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Banos
v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per
curiam); Chase v. O'Malley, 466 F. App'x
185, 186-87 (4th Cir. 2012) (per curiam). Cf. Pointer v.
Wilkinson, 502 F.3d 369, 371 n.l (6th Cir. 2007).
"By using the term 'imminent,' Congress
indicated that it wanted to include a safety valve for the
'three strikes' rule to prevent impending harms, not
those harms that had already occurred."
Abdul-Akbar, 239 F.3dat315.
Court is unable to discern from plaintiffs complaint any
facts showing he meets the statutory exception. Because
plaintiff has failed to allege particular facts showing any
immediate or impending serious physical injury in existence
at the time he commenced this action, he does not meet the
exception to the "three strikes" rule set forth in
28 U.S.C. § 1915(g).
IS THEREFORE RECOMMENDED THAT:
Plaintiff be ordered to pay the full $400 fee ($350 filing
fee plus $50 administrative fee) required to commence this
action within thirty (30) days, and that plaintiff be
notified that his failure to pay the full $400 fee within
thirty days will result in the dismissal of his action.
See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
Court certify pursuant to 28 U.S.C. § 1915(a)(3) that
for the foregoing reasons an appeal of any Order adopting
this Report and Recommendation would not be taken in good