United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
Judge Jolson originally recommended denying Plaintiff's
motion for leave to proceed without prepayment of fees in
this prisoner civil rights case because of the 3-Strikes
Provision of 28 U.S.C. §1915. R&R 3, ECF No. 2. The
R&R acknowledged that the 3-Strikes Provision does not
apply to a prisoner plaintiff who is under imminent danger of
serious physical injury. Id. at 2-3 (citing 28
U.S.C. § 1915(g)). It concluded, however, that although
Plaintiff had alleged in his Complaint a need for emergency
treatment, which can, in some circumstances, put an inmate in
sufficient danger to permit leave to proceed without
prepayment of fees, the allegations in this case did not
address whether Plaintiff was in imminent danger.
Id. at 2. The R&R specifically noted that many
of the allegations in Plaintiffs Complaint related to the
policy-making decisions of President Trump rather than
Plaintiff's alleged lack of access to medical care or a
wheelchair. Id. Further, the R&R noted that the
Complaint largely focused on past events without indicating
imminent danger. Id. at 3. Because he failed to
allege particular facts showing that he was in imminent
danger of serious physical injury, the R&R recommended
denying Plaintiff's motion for leave to proceed without
prepayment of fees. Id.
timely objected pursuant to Federal Rule of Civil Procedure
72(b). Upon de novo review, the Court concluded that,
although the objection was difficult to decipher, Plaintiff
had asserted in his objection that he was "in ongoing
danger," Obj. 1, ECF No. 3, by stating that his lawsuit
was an attempt to redress an imminent danger of serious
physical injury that would befall Plaintiff if he continued
to be treated like a non-disabled prisoner. Id. at
4. The Court noted that Plaintiff, in his objection,
reiterated his allegation that staff members have attacked
him more than fifteen times and "are attacking
me...," Id., alleged that psychotic outbursts
from other inmates have not ceased but rather "are going
on 'daily, '" id. at 6, and that he did
not "know how, or if the next direct physical attack
will occur....," id. at 4, and alleged that his
movement from a segregated cell to another unit amounted to
"inadequate and deadly treatment" because no part
of the prison is ADA compliant. Id. In light of the
allegations that Plaintiff continued to be attacked by prison
staff and that "psychotic outbursts" from other
inmates were ongoing, the Court, in an abundance of caution,
recommitted this matter to the Magistrate Judge for further
evaluation of whether Plaintiff had adequately alleged that
he is in imminent danger of serious physical injury to permit
him to proceed without the prepayment of fees-even though
none of the above was included in Plaintiff's Complaint.
Op. and Order, ECF No. 5.
recommittal, Magistrate Judge Jolson issued another R&R,
again recommending that Plaintiff be denied leave to proceed
without prepayment of fees. R&R, ECF No. 6. The R&R
concluded that Plaintiffs allegations of facing imminent
danger of serious physical injury were purely speculative,
especially the allegations regarding attacks by prison staff.
Id. at 3.
has once again objected to the R&R, Obj., ECF No. 7, and
the Court reviews de novo the portions of the R&R that
are properly objected to pursuant to Federal Rule of Civil
Plaintiff objects that the 3-strikes rule does not apply to
his case because he is suing under the Americans with
Disabilities Act. Obj. 1-2, ECF No. 7. The Court overrules
this objection. The case Plaintiff cites in support of this
argument does not support his position.
Plaintiff argues that he has sufficiently alleged that he is
in imminent danger of serious physical injury. Plaintiff now
specifically clarifies, however, that he does not allege
physical attacks by prison staff as part of this case.
Id. at 8. Rather, he writes, this case "is a
detailed review of customary, pattern-style Title II ADA
violations . . . ." Id. Still, Plaintiff argues
that the denial of a wheelchair amounts to imminent danger of
serious physical injury because it "automatically
exclude[s]" him from "hygiene, medical care, and
virtually all other prison programs, constituting a deadly
and unsafe 'exclusion.'" Id. at 3 (some
internal quotation marks and citation omitted). To that end,
Plaintiff argues that, because he has been denied access to a
wheelchair but is in a segregated cell around other inmates
who are not wheelchair bound and is in a "non-wheelchair
bound facility, that has a stair (flight of stairs) usage
requirement to make any transition what-so-ever," he
faces imminent danger. Id. at 4. Plaintiff reasons
that "even a shower, or attempt to go to medical,
another unit, etc., could potentially cause me actual
physical injury." Id. at 4-5 (internal
quotation marks and citation omitted). He likens his
situation to a case that did not consider the 3-strikes
provision. See Allah v. Goord, 405 F.Supp.2d 265
objections are overruled. First, the cases Plaintiff cites do
not stand for the proposition that allegations similar to
those he makes here satisfy the "imminent danger of
serious physical injury" exception to the 3-strikes
rule. See United States v. Georgia, 546 U.S. 151,
157-59 (2006) (stating that it is plausible that the
plaintiff's allegations regarding refusal to accommodate
his disability-related needs constituted exclusion from
participation in the prison's services, programs, or
activities for purposes of an ADA claim and that his claim
for money damages for the same was not barred by sovereign
immunity); Stefan v. Olson, 497 Fed.Appx. 568, 577
(6th Cir. 2012) (finding that a pretrial detainee's
blood-alcohol level and history of withdrawal seizures
constituted "an objectively serious medical need
possessing the 'sufficiently imminent danger' that is
'actionable under the Eighth Amendment.'").
Plaintiffs Complaint alleges only that he has been denied
access to a wheelchair and that the prison is not wheelchair
accessible. He does not allege that he faces any particular
imminent danger of serious physical injury without his
wheelchair, however. Several courts have found similar
allegations regarding lack of access to a wheelchair or being
housed in a non-ADA-compliant facility insufficient to meet
the imminent danger exception to the 3-strikes rule. See,
e.g., Malone v. Illinois Dept. of Corr., No.
17-cv-935-SMY, 2017 WL 5999478, at *4 (S.D. III. Dec. 4,
2017) (alleged ADA violations insufficient to show imminent
danger of serious physical injury); Johnson v.
Morales, No. CV 311-039, 2011 WL 7097321, at * 5 (S.D.
Ga. Dec. 19, 2011) ("Plaintiff's disagreement with
Defendant Ajibade over whether his living quarters are ADA
compliant is irrelevant; such disagreement concerns the
merits of Plaintiff's ADA claim, and his allegations
about being unable to adequately maneuver his wheelchair do
not establish an imminent danger of harm."), adopted
by 2012 WL 243319; Williams v. Birkett, No.
2:07-CV-12532, 2007 WL 2421329, at *1 (E.D. Mich. Aug. 23,
2007) (allegation that wheelchair-bound prisoner was confined
to a cell not equipped with handrails and that prisoner was
therefore at risk of falling when using the toilet
insufficient to allege imminent risk of serious physical
injury); Miller v. Meadows, No. 5:05-CV-29, 2005 WL
1983838, at *5 (M.D. Ga. Aug. 11, 2005) (allegations that
prisoner was placed in a cell too small for his wheelchair,
had inadequate access to toilet and shower facilities, and
had wheelchair taken away were insufficient to allege
imminent danger of serious physical injury, but other
allegations satisfied the standard).
Tenth Circuit has held that the failure to provide a
wheelchair to one who requires it "could result in a
number of serious physical injuries" such that a
prisoner satisfied the imminent danger exception. Fuller
v. Wilcox, 288 Fed.Appx. 509, 511 (10th Cir. 2008). In
that case, however, the plaintiff had alleged that he was
completely unable to walk without a wheelchair and that,
without his wheelchair, he was forced to crawl and was unable
to walk to the shower or lift himself onto his bed.
id. In this case, although Plaintiff repeatedly
alleges that he was denied a wheelchair, see Compl.
2, ECF No. 1-2 ("confiscated my wheelchair,"
"They have destroyed my wheelchair. . . ."); Obj.
4, ECF No. 7 ("I have no wheelchair in sight. . .
."), he does not allege-in his Complaint or
otherwise-that he is unable to walk without one. Nor does
Plaintiff specify in his Complaint any imminent danger of
serious physical injury that will result from his lack of
access to a wheelchair. Rather, he makes an entirely
speculative and conciusory statement-in his second set of
objections, not his Complaint-that he could potentially be
injured when trying to shower, exercise, move to another
unit, etc. Plaintiffs Complaint is therefore inapposite to
the situation in Fuller.
the Court has reviewed Plaintiffs recent filing, ECF No. 8,
and finds that it does not demonstrate a serious physical
injury or change the fact that Plaintiff failed to plead that
his is in imminent danger of facing a serious physical
the Court finds that although Plaintiff alleged that he has
been denied access to a wheelchair and that the prison
facility is not ADA compliant, he has failed to allege in his
Complaint that the denial puts him in imminent danger of
serious physical injury. The Court therefore
ADOPTS the R&R and
DENIES Plaintiffs motion for leave to
proceed without prepayment of fees.
Plaintiff wishes to proceed with this case, he must pay the
full $400.00 filing fee within THIRTY DAYS.
Failure to do so will result in this case being ...