United States District Court, S.D. Ohio, Western Division
JEREMY X. GERALD, Plaintiff,
GARY MOHR, et al, Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
Jeremy Gerald, an inmate at the Lebanon Correctional
Institution, brings this prisoner civil rights action under
42 U.S.C. § 1983. This matter is before the Court on
plaintiffs motion to proceed in forma pauperis.
(Doc. 1). For the reasons that follow, plaintiffs motion
should be denied.
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.
28 U.S.C. § 1915(g).
Gerald is prohibited by § 1915(g) from proceeding in
forma pauperis in this case because at least three prior
complaints filed by him while he has been a prisoner were
dismissed as frivolous or for failure to state a claim upon
which relief may be granted. In Gerald v. McNeil,
No. 3:09-cv-261 (M.D. Fl. March 26, 2009) (Doc. 7), the
district court denied Mr. Gerald leave to proceed in
forma pauperis on the ground that he "has had three
or more qualifying dismissals and is not under imminent
danger of serious physical injury." He has since
filed two additional prisoner civil rights complaints in the
United States District Court for the Northern District of
Ohio that have also been dismissed as frivolous or for
failure to state a claim upon which relief may be granted.
See Mitchell, et al. v. Barry, 5:16-CV-288 (N.D.
Ohio Feb. 8, 2016); Gerald v. Akron Bar Assoc,
5:I8-cv-414 (N.D. Ohio Feb. 20, 2018). The previous
dismissals for failure to state a claim upon which relief may
be granted prevent Mr. Gerald from obtaining pauper status in
the instant action.
of his three '"strikes," Mr. Gerald 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); Bonos
v. O 'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per
curiam); Chase v. O'Malley, 466 Fed.Appx. 185, 3
86-87 (4th Cir. 2012) (per curiam). Cf. Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (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.3d at 315.
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:
Plaintiffs motion to proceed in forma pauperis be
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
faith. S ...