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McDougald v. Bear

United States District Court, S.D. Ohio, Western Division

July 27, 2018

JERONE MCDOUGALD, Plaintiff,
v.
SHANNON BEAR, et. al., Defendants.

          Black J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and frequent filer in this Court, [1] 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).

         The 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 litigation.

         A 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. § 1915:

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.

         28 U.S.C. § 1915(g).

         Mr. 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.

         In view 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.

         The 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).

         IT IS THEREFORE RECOMMENDED THAT:

         1. 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).

         2. The 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 faith. ...


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