Martin v. State of Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HOWARD E. MARTIN, III, :

:

Plaintiff, : Case No. 2:22-cv-01654

:

v. : Chief Judge Algenon L. Marbley

:

STATE OF OHIO, : Magistrate Judge Chelsey M. Vascura

:

Defendant. :

OPINION & ORDER

This matter is before the court on Magistrate Judge Chelsey M. Vascura’s Report and

Recommendation (ECF No. 8), which recommended that this Court deny Plaintiff’s Motion for

Leave to Proceed In Forma Pauperis (ECF No. 3). For the reasons set forth more fully below, this

Court OVERRULES Plaintiff’s Amended Objections (ECF No. 12) and ADOPTS the Magistrate

Judge’s Report and Recommendation (ECF No. 8). Accordingly, Plaintiff’s Motion for Leave to

Proceed In Forma Pauperis (ECF No. 3) is DENIED.

I. BACKGROUND

Plaintiff Howard E. Martin, III, is an inmate at Chillicothe Correctional Institution (“CCI”).

(See R. & R. at 1, ECF No. 8). Proceeding without the assistance of counsel, Martin brings this

civil rights action against the State of Ohio, alleging that his treatment at CCI constitutes a violation

of his Eighth Amendment rights. (See Compl. at 1, ECF No. 1). Specifically, the Complaint

describes an incident between Plaintiff and Officer Matthew Kelley on August 26, 2021, involving

a search of Martin’s cell, which resulted in the filing of an allegedly-false misconduct report. (See

id. at 3, 5–6). The bulk of the Complaint is dedicated to arguing that Officer Kelley’s report

constituted “Bid Rigging,” in violation of the prohibition against cruel and unusual punishments.

(See R. & R. at 3, ECF No. 8). As it relates to the instant motion, the Complaint also alleges that

Officer Kelley handcuffed Martin with excessive force, such that that Martin fell to the ground.

(Id. at 3). This incident, which “resulted in additional Officers having to come out and pick Inmate

Martin up from the Ground,” is, according to Plaintiff, indicative that a “threat of violence” against

him exists. (Pl.’s Am. Objs. at 1, 2, ECF No. 12 (emphasis omitted)).1 He further claims that an

adverse decision from this Court would lead to “escalation” of this threat. (Id. at 2).

The Magistrate Judge recommended that Martin’s motion to proceed in forma pauperis be

denied. (See R. & R. at 1, ECF No. 8). The Report and Recommendation noted that Martin had

previously filed at least three lawsuits that have all been dismissed for failure to state a claim

pursuant to 28 U.S.C. § 1915(e), and thus that he is a “three striker.” (Id. at 2). A prisoner who

has previously, “on 3 or more prior occasions, while incarcerated . . . 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” may not file another civil action “unless

the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The

Magistrate Judge found that Martin’s situation did not rise to the level of “imminent danger of

serious physical injury,” and therefore recommended denial of Plaintiff’s motion. (R. & R. at 2

(citing Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013)), ECF No. 8).

Martin timely objected to the Report and Recommendation. (Pl.’s Am. Objs., ECF No. 12).

II. STANDARD OF REVIEW

If a party objects within 14 days to the Magistrate Judge’s proposed findings and

1 The allegations about this incident in Martin’s Complaint are sparse, but Plaintiff has added some detail in

his Amended Objection. In consideration of Martin’s pro se status, the Court will consider the additional factual

allegations in the Amended Objections when considering his in forma pauperis motion. See Williams v. Curtin, 631

F.3d 380, 383 (6th Cir. 2011) (noting that allegations in a pro se complaint are subject to “‘less stringent standards

than formal pleadings drafted by lawyers,’ and therefore should be liberally construed” (quoting Martin v. Overton,

391 F.3d 710, 712 (6th Cir. 2004))).

recommendations, the district court “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636(b)(1); see also Fed. R. Civ. P. 72(b). The district court may “accept, reject or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate with

instructions.” Fed. R. Civ. P. 72(b). On the other hand, if a party fails to object timely to the

magistrate’s recommendation, that party waives the right to de novo review by the district court

of the report and recommendation. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not

appear that Congress intended to require district court review of a magistrate’s factual or legal

conclusions, under a de novo or any other standard, when neither party objects to those

findings.”). Waiver does not, however, “preclude further review by the district judge, sua sponte

or at the request of a party, under a de novo or any other standard.” Id. at 154.

A party’s objection should be specific, identify the issues of contention, and “be clear

enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The onus is on the objecting party “to pinpoint

those portions of the magistrate’s report that the district court must specially consider.” Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (quotation marks and citation omitted). When a

pleader fails to raise specific issues, the district court will consider this to be “a general objection

to the entirety of the magistrate report, [which] has the same effects as would a failure to object.”

Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

III. LAW & ANALYSIS

As noted previously, a prisoner who has had three previous lawsuits dismissed as frivolous,

malicious, or for failure to state a claim, may not bring a further civil action unless the “prisoner

is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). This is known

colloquially as the “three-strike rule.” In the instant case, Martin does not dispute that he has three

strikes against him. (See Pl.’s Am. Objs. at 1–3, ECF No. 12). Thus, the only question before this

Court is whether the circumstances described by Martin — that is, the plight of a prisoner who

was handcuffed in a forcible manner on a single occasion — place him in “imminent danger of

serious physical injury.”

The “imminent danger” exception is essentially a pleading requirement subject to the

ordinary principles of notice pleading. Vandiver, 727 F.3d at 585 (citing Vandiver v. Vasbinder,

416 F. App’x 560, 561 (6th Cir. 2011)). To satisfy this pleading standard, “[a] plaintiff ‘must . . .

allege[] facts from which a court, informed by judicial experience and common sense, could draw

the reasonable inference that [he] was under an existing danger at the time he filed a complaint.”

Id. (quoting Taylor v. First Med. Mgmt., 508 F. App’x 488, 492 (6th Cir. 2012) (alteration in

original)). To raise a plausible claim of imminent danger, “the threat of prison condition must be

real and proximate; and the danger must result in serious physical injury.” Id. A physical injury

is considered “serious” under § 1915(g) “if it has potentially dangerous consequences such as death

or severe bodily harm. Minor harms or fleeting discomfort don’t count.” Gresham v. Meden, 938

F.3d 847, 850 (6th Cir. 2019). But the imminent danger exception is not so demanding as to

require a prisoner to show that he or she is suffering from a life-threatening ailment. See Ryan v.

G. Robert Cotton Corr. Facility, 2020 WL 9258300, at *3 (6th Cir. Dec. 8, 2020) (citations

omitted). Finally, the question for this Court, at this stage, does not concern the merits of Plaintiff’s

claim, but simply whether Plaintiff has adequately “assert[ed] allegations of imminent danger.”

Vandiver, 727 F.3d 580, at 585 (quoting Tucker v. Pentrich, 483 F. App’x 28, 30 (6th Cir. 2012)).

Martin fails to allege facts that would establish a specific threat of death or severe bodily

injury. As a result, he cannot demonstrate that his circumstances qualify for the statutory exception

of “imminent danger” under §1915(g). As an initial matter, Martin has failed to allege any physical

injury at all, let alone a “serious” injury under §1915(g). Martin’s argument that he qualified for

the imminent-danger exception relies entirely on his interaction with Officer Kelley. (See, e.g.,

Pl.’s Am. Objs. at 2, ECF No. 12). Although Martin provides allegations that he was handcuffed

in a forcible manner, he does not add any details or facts about injuries suffered from that incident.

(See generally id.). Further, any such injuries would be unlikely to qualify as “serious” as that

term is used in the context of § 1915(g), where ailments such as “chest pains, muscular restlessness,

seizures, vomiting, stomach cramps, and dizziness” have previously been deemed insufficient. See

Gresham, 938 F.3d at 850.

Martin likewise fails to allege any imminent threat of future injuries. In fact, the only

support this Court can divine from Martin’s Amended Objections for the proposition that there is

an impending risk of harm is his rhetorical question: “[c]ould it be any more obvious that the threat

of violence exists?” (Pl.’s Am. Objs. at 2, ECF No. 12) (emphasis omitted)). In addition to being

conclusory and speculative, cf. Taylor, 508 F. App’x at 492 (“Allegations that are conclusory,

ridiculous, or clearly baseless are . . . insufficient for purposes of the imminent-danger exception.”

(citing Rittner v. Kinder, 290 F. App’x 796, 798 (6th Cir. 2008) (internal citations omitted))),

Martin’s assertions contemplate only past dangers. But demonstrating a threat or danger of serious

injury requires a plaintiff to show that “the threat or prison condition [is] real and proximate and

the danger of serious physical injury must exist at the time the complaint is filed.” Rittner, 290 F.

App’x at 797; Percival v. Gerth, 443 F. App’x 944, 946 (6th Cir. 2011) (noting that “[a]ssertions

of past danger will not satisfy the ‘imminent danger’ exception” (citing Pointer v. Wilkinson, 502

F.3d 369, 371 n.1 (6th Cir. 2007))). No such threat may be reasonably inferred from Martin’s

pleadings.

Plaintiff has had “three strikes” and is not in “imminent danger”; therefore, he may not

proceed in forma pauperis.

IV. CONCLUSION

For the foregoing reasons, Plaintiffs Amended Objections (ECF No. 12) are

OVERRULED. This Court ADOPTS AND AFFIRMS the Magistrate Judge’s Report and

Recommendation (ECF No. 8).

Accordingly, Plaintiffs Motion for Leave to Proceed Jn Forma Pauperis (ECF No. 3) is

DENIED. The Court therefore ORDERS Plaintiff to pay the full $402 filing fee ($350 filing fee,

plus $52 administrative fee) required to commence this action WITHIN THIRTY DAYS; failure

to timely pay the full fee within thirty days will result in dismissal of this action. The Court

CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith.

Furthermore:

1. Plaintiff is ORDERED to file a Notice in all pending federal cases in which

he was granted leave to proceed in forma pauperis status that identifies all

of his previously-dismissed cases.

2. Plaintiff is ADVISED that the Court will dismiss with prejudice any future

cases in which Plaintiff seeks in forma pauperis status without identifying

previously dismissed cases in accordance with Sloan v. Lesza, 181 F.3d 857

(7th Cir. 1999); see also Clervrain v. Lawson, No. 1:20-cr-1306, ECF No.

5 (S.D. Ind. May 6, 2020) (denying Clervrain’s in forma pauperis motion

and dismissing the action with prejudice because Clervrain failed to disclose

that he was a three-striker).

IT IS SO ORDERED.

LE L. ae Ila

CHIEF UNITED STATES DISTRICT JUDGE

DATED: January 25, 2023