United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge
se Plaintiff Robert Martin filed the above-captioned
action against the Marion Correctional Institution
(“MCI”) Cashier Jane Doe, Institutional Inspector
Kasey Plank, Institutional Inspector Ms. Lambert, Health Care
Administrator Nurse Practitioner Aduse, Health Care
Administrator Reece, Librarian John Doe, Warden Lyneal
Wainwright, and Ohio Department of Rehabilitation and
Correction (“ODRC”) Assistant Chief Inspectors
Kelly Riehle and Jane Doe. Plaintiff's Complaint consists
entirely of a list of generalized grievances:(1) the prison
is not providing him with free postage, envelopes,
photocopying services, paper, pens, or in-house counsel; (2)
the warden, librarian and institutional inspector refused to
give him a copy of the American Corrections Association
handbook; (3) inmates do not earn interest in their prison
trust accounts; (4) he is not provided with unimpeded access
to the healthcare of his choice; (5) he is required to pay a
copay for medical visits even though that statute authorizing
the copay was enacted after he was convicted and
incarcerated; (6) he was required to put money into a
“going home fund;” (7) the cashier is allowing
deductions of court filing fees from his state pay; (8)
prison physicians have not “mapped” his legs to
treat cardiovascular problems; (9) his prescription for
Ultram was discontinued and he was prescribed Elavil in its
place; (10) he has to purchase over-the-counter medications;
and (11) inmate grievances are denied at a rate of 98%
suggesting a violation of due process. He asserts claims for
violation of his Fourth, Fifth, Eighth and Fourteenth
Amendment rights. He seeks monetary damages.
also filed an Application to Proceed In Forma
Pauperis. That Application is denied.
U.S.C. § 1915(g)
to 28 U.S.C. § 1915(a), a Court may authorize the
commencement of an action without prepayment of fees if an
applicant has shown by affidavit that he satisfies the
criterion of poverty. Prisoners, however, become responsible
for paying the entire amount of their filing fees and costs
from the moment they file the Complaint. 28 U.S.C. §
1915(b). When an inmate seeks pauper status, the only issue
for the Court to determine is whether the inmate pays the
entire fee at the initiation of the proceeding or over a
period of time under an installment plan. Id.
Moreover, absent imminent danger, the benefit of the
installment plan is denied to prisoners who have on three or
more prior occasions, while incarcerated, brought an action
that was dismissed on the grounds that it was frivolous,
malicious or failed to state a claim upon which relief could
be granted. 28 U.S.C. § 1915(g).
interpreting the “three strike” language of this
section, the United States Court of Appeals for the Sixth
Circuit has held that “where a Complaint is dismissed
in part without prejudice for failure to exhaust
administrative remedies and in part with prejudice because
‘it is frivolous, malicious, or fails to state a claim
upon which relief may be granted,' the dismissal should
be counted as a strike under 28 U.S.C. § 1915(g).”
Pointer v. Wilkinson, 502 F.3d 369, 377 (6th Cir.
2007). Dismissals of actions entered prior to the effective
date of the Prisoner Litigation Reform Act
(“PLRA”) also are counted toward the “three
strikes referred to in 28 U.S.C. § 1915(g).”
Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir.
language of 28 U.S.C. § 1915(g) indicates, the
“three strike” provision will not apply if a
“prisoner is under imminent danger of serious physical
injury.” For purposes of interpreting the statute, the
Court considers whether Plaintiff is in imminent danger at
the time of the filing of the Complaint. Vandiver v.
Vasbinder, 416 Fed.Appx. 560, 562 (6th Cir. 2011)
(“[T]he plain language of § 1915(g) requires the
imminent danger to be contemporaneous with the
Complaint's filing.”). Although the Sixth Circuit
has not offered a precise definition of “imminent
danger, ” it has suggested that the threat of serious
physical injury “must be real and proximate.”
Rittner v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir.
2008). Moreover, the imminent danger exception “is
essentially a pleading requirement subject to the ordinary
principles of notice pleading.” Vandiver, 416
Fed.Appx. at 562; see Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007) (suggesting courts should focus
solely on the facts alleged in the Complaint when deciding
whether a prisoner faces imminent danger).
is a prisoner who has filed at least twenty-one prior cases,
while incarcerated, that were dismissed under 28 U.S.C.
§ 1915(e) or 28 U.S.C. § 1915A. See, e.g.,
Martin v. Grandson, No. 1:18 CV 2383 (N.D. Ohio Dec. 21,
2018)(Boyko, J.); Martin v. Warden, No. 1:18 CV 376
(N.D. Ohio May 21, 2018); Martin v. Ramey, 1:17 CV
2195 (N.D. Ohio Mar. 8, 2018)(Boyko, J.); Martin v.
Zilka, No. 3:17 CV 124 (N.D. Ohio Feb. 6, 2017)(Zouhary,
J.); Martin v. Skory, 1:16 CV 504 (N.D. Ohio Mar.
28, 2016)(Boyko, J.); Martin v. Mohr, 1:16 CV 382
(N.D. Ohio Feb. 24, 2016)(Polster, J.); Martin v. John
Does, No. 1:16 CV 383 (N.D. Ohio Apr. 8, 2016)(Polster,
J.); Martin v. PNC Wealth Management, No. 1:15 CV
820 (N.D. Ohio June 26, 2015)(Nugent, J.); Martin v.
Hawkins, No. 5:04 CV 2387 (N.D. Ohio Feb. 28,
2005)(Gwin, J.); Martin v. Wayne County National Bank
Trust and Investment, No. 5:03 CV 1211 (N.D. Ohio Aug.
12, 2003)(Gaughan, J.); Martin v. Rogers, No. 3:95
CV 7101 (N.D. Ohio Mar. 29, 1995)(Katz, J.); Martin v.
Sobie, No. 5:91 CV 511 (N.D. Ohio Apr. 11, 1991);
Martin v. Hill, No. 1:91 CV 39 (N.D. Ohio Jan. 22,
1991)(Manos, J.); Martin v. Wilson, No. 1:91 CV 23
(N.D. Ohio Jan. 11, 1991)(Aldrich, J.); Martin v.
Cook, No. 1:90 CV 1866 (N.D. Ohio Oct. 30,
1990)(Aldrich, J.); Martin v. Boggs, No. 1:90 CV
1767 (N.D. Ohio Oct. 31, 1990)(Batchelder, J.); Martin v.
Welch, No. 2:10 CV 736 (S.D. Ohio Jan. 20, 2011)(Graham,
J.); Martin v. Lowery, No. 2:04 CV 704 (S.D. Ohio
Jan. 26, 2005)(Marbley, J.); Martin v. Ohio Supreme
Court, No. 2:04 CV 613 (S.D. Ohio Nov. 5, 2004)(Sargus,
J.); Martin v. Coval, No. 2:99 CV 703 (S.D. Ohio
Nov. 9, 1999)(Smith, J.); Martin v. Bustamonte, No.
2:94 CV 1198 (S.D. Ohio Dec. 12, 1994). In addition,
Plaintiff was denied in forma pauperis
(“IFP”) status under § 1915(g) in at least
nine other cases. See Martin v. PNC Wealth
Management, No. 1:15 CV 820 (N.D. Ohio June 26,
2015)(Nugent, J.)(denied IFP on appeal); Martin v.
Welch, No. 3:10 CV 1826 (N.D. Ohio Nov. 10,
2010)(Zouhary, J.); Martin v. Bureau of Medical
Services, No. 2:16 CV 451 (S.D. Ohio Aug. 4,
2016)(Watson, J.)(report and recommendation issued denying
IFP); Martin v. ODRC, No. 2:15 CV 2888 (S.D. Ohio
May 5, 2016)(Sargus, J.); Martin v. ODRC, No. 2:15
CV 2872 (S.D. Ohio Jan. 20, 2016)(Frost, J.); Martin v.
HFC, No. 2:15 CV 2435 (S.D. Ohio Dec. 1, 2015)(Smith,
J.); Martin v. Aramark Food Corp., No. 2:15 CV 1112
(S.D. Ohio Sept. 3, 2015)(Frost, J.); Martin v.
Harlan, No. 2:14 CV 1553 (S.D. Ohio Jan. 22,
2016)(Frost, J.); Martin v. HCA-Rouse, No. 2:14 CV
46 (S.D. Ohio Dec. 3, 2014)(Smith, J.). The “three
strike” provision of § 1915(g) will apply to bar
Plaintiff from proceeding in forma pauperis unless
Plaintiff's Complaint suggests he was in imminent danger
at the time he filed this action.
Complaint, however, does not fall within the parameters of
this exception. He generally challenges prison financial
accounting and fee collection procedures, the refusal to give
him a copy of a handbook, and the denial of specific
medications and testing he wants for conditions he does not
describe. He does not allege facts suggesting that either the
medication or the testing is medically necessary or that the
care he is receiving is in any way inadequate. The Complaint
does not suggest he is in imminent danger of physical harm.
Plaintiff's Application to Proceed In Forma
Pauperis (Doc. No. 2) is denied and this case is
dismissed without prejudice. The Court certifies pursuant to
28 U.S.C. §1915(a)(3) that an appeal from this decision
could not be taken in good faith. If Plaintiff wishes to
proceed with this action, he must pay the full filing fee of
$400.00 within thirty days, and must file a Motion to Re-Open
the case. The Motion will not be accepted if it is not
accompanied by the full filing fee. No other documents will
be accepted for filing in this case unless the entire filing
fee is paid, and the Motion to Re-Open has been granted.