United States District Court, S.D. Ohio, Western Division
Barrett, J. Litkovitz, M.J.
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,  filed a prisoner
civil rights action under 42 U.S.C. § 1983. On April 18,
2019, the Court entered a final Order and Judgment granting
defendants' motion for summary judgment. (Docs. 44, 45).
Plaintiff/appellant has filed a notice of appeal and motion
for leave to appeal in forma pauperis. (Docs. 46,
motion for leave to appeal in forma pauperis should
be denied on the ground that plaintiff/appellant is
prohibited from obtaining pauper status on appeal pursuant to
the “three strikes” provision set forth in 28
U.S.C. § 1915(g). 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).
McDougald is prohibited by § 1915(g) from proceeding
in forma pauperis on appeal 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 on appeal 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.” “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.3d at 315. See also Banos v. O'Guin, 144 F.3d
883, 885 (5th Cir. 1998) (finding that the prisoner appellant
was not entitled to pauper status on appeal where he failed
to establish that he faced imminent danger of serious
physical injury at the time the appeal was filed).
Plaintiff/appellant has failed to allege particular facts
showing any immediate or impending serious physical injury in
existence at the time he filed his notice of appeal, which
would enable him to proceed on appeal in forma
paupers despite his prior three strikes. See 28
U.S.C. § 1915(g). Accordingly, plaintiff/appellant is
not entitled to proceed on appeal without paying the filing
therefore RECOMMENDED that
plaintiff/appellant's motion to proceed in forma
pauperis on appeal be DENIED and that
plaintiff/appellant be assessed the appellate filing fee and
be given thirty days within which to pay it.
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after
being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the
proposed findings and recommendations. This period may be
extended further by the Court on timely motion for an
extension. Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum
of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters
occurring on the record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon,
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14
DAYS after being served with a copy thereof. Failure
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
 As of this date, plaintiff has filed
over 20 cases in the Southern District of Ohio. See
McDougald v. Erdos, 1:19-cv-107 (TSB: SKB) (S.D. Ohio
Feb. 11, 2019); McDougald v. Eddy, 2:19-cv-257 (TSB;
SKB) (S.D. Ohio Jan. 25, 2019); McDougald v. Smoot,
1:19-cv-50 (SJD; KLL) (S.D. Ohio Jan. 22, 2019);
McDougald v. Bear, 1:18-cv-498 (TSB; KLL) (S.D. Ohio
July 23, 2018); McDougald v. Erdos, 1:18-cv-135
(MRB; SKB) (S.D. Ohio Feb. 23, 2018); McDougald v.
Clagg, 1:18-cv-93 (TSB; SKB) (S.D. Ohio Feb. 9, 2018);
McDougald v. Eaches, 1:18-cv-80 (MRB; SKB) (S.D.
Ohio Feb. 5, 2018); McDougald v. Erdos, 1:17-cv-464
(MRB; SKB) (S.D. Ohio July 10, 2017); McDougald v.
Dillow, 1:17-cv-196 (MRB; KLL) (S.D. Ohio Mar. 27,
2017); McDougald v. Dunlap, 1:17-cv-127 (MRB; SKB)
(S.D. Ohio Feb. 24, 2017); McDougald v. Bear,
1:17-cv-124 (MRB; SKB) (S.D. Ohio Feb. 21, 2017);
McDougald v. Erdos, 1:17-cv-95 (SJD; SKB) (S.D. Ohio
Feb. 10, 2017); McDougald v. Sammons, 1:17-cv-91
(MRB; SKB) (S.D. Ohio Feb. 10, 2017); McDougald v. Lt.
Stone, 1:17-cv-72 (SJD; SKB) (S.D. Ohio Feb. 1, 2017);
McDougald v. Dillow, 1:16-cv-1099 (MRB; SKB) (S.D.
Ohio Nov. 23, 2016); McDougald v. Eaches,
1:16-cv-900 (SJD; KLL) (S.D. Ohio Sept. 6, 2016);
McDougald v. Davis, 1:16-cv-633 (SJD) (June 10,
2016); McDougald v. Davis, 2:16-cv-545 (GCS; KAJ)