Ryan v. Carson City Correctional Facility et al

Filing 156

ORDER adopting 93 Report and Recommendation. Plaintiff's in forma pauperis status is revoked and complaint dismissed without prejudice. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SEAN MICHAEL RYAN,
Plaintiff,
Case No. 17-CV-10562
HON. GEORGE CARAM STEEH

vs.
CARSON CITY CORRECTIONAL
FACILITY, et al.,
Defendants.
_______________________________/

ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION [DOC. 93]
Plaintiff Sean Michael Ryan filed his pro se complaint under 42
U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), averring
that his medical problems interfere with his life in prison and his access to
prison services, and that defendants fail to properly accommodate these
disabilities. Specifically, plaintiff alleges defendants mismanage his pain
for various conditions across multiple prison facilities. The parties filed
several motions that were referred to the magistrate judge for report and
recommendation (“R&R”). Plaintiff’s motions include: objection and motion
to compel (Doc. 81); request for schedule and deadlines (Doc. 87); request
for appointment of counsel (Doc. 88); request to expedite (Doc. 89); and
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request for extension of discovery (Doc. 90). Defendants filed motions to
revoke plaintiff’s in forma pauperis status and to dismiss (Doc. 83) and for
protective order (Doc. 84). For the reasons stated below, the court adopts
the R&R, grants defendants’ motion to revoke plaintiff’s in forma pauperis
status, dismisses plaintiff’s complaint without prejudice, and denies the
remaining motions as moot.
The Prison Litigation Reform Act (“PLRA”) of 1996 contains a three
strikes provision which prohibits a prisoner from bringing an action without
prepaying the filing fee if the prisoner has more than three previous actions
or appeals that were dismissed for being frivolous, malicious or for failure to
state a claim. Where a prisoner’s case falls under the three-strikes bar,
immediate dismissal is appropriate. The only exception to this rule is
where the prisoner alleges an “immediate danger of serious physical
injury,” also referred to as imminent danger. 28 U.S.C. § 1915(g).
The magistrate judge found that plaintiff has had more than three
prior cases summarily dismissed for failure to state a claim upon which
relief can be granted. (Doc. 93, Pg ID 1290). The magistrate judge also
noted that plaintiff was incarcerated at Carson City Correctional Facility
(“DRF”) in Carson City, Michigan at the time his complaint was filed. Only
three of the defendants, Holmes, Spurlling and Campbell, work at DRF,
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while each of the other defendants works at a different facility where
plaintiff was previously housed. Claims against non-DRF defendants
cannot establish imminent danger because those defendants no longer
pose whatever danger they posed in the past. “[T]he danger of serious
physical injury must exist at the time the complaint is filed . . . Thus a
prisoner’s assertion that he or she faced danger in the past is insufficient to
invoke the exception.” Vandiver v. Prison Health Servs., Inc., 727 F.3d
580, 585 (6th Cir. 2013) (citation omitted).
The magistrate judge found that plaintiff’s allegations against the DRF
defendants were conclusory and lacked the detail required of a properly
pleaded complaint. Ultimately, the magistrate judge concluded that
plaintiff does not deny having access to medical care; rather, he challenges
the wisdom of his doctors’ chosen course of treatment. Plaintiff’s
allegations were found to be insufficient to invoke the imminent danger
exception.
Plaintiff filed objections to the magistrate judge’s report and
recommendation and defendants filed a response to those objections. In
addition, plaintiff filed a motion to amend his objections to the report and
recommendation (doc. 132). The court grants plaintiff’s motion to amend
his objections and will consider both the amended objections as well as
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defendants’ response and plaintiff’s reply.
Plaintiff’s first objection is that the magistrate judge issued her R&R
prior to receiving plaintiff’s timely filed response. The court finds that the
magistrate judge conducted a fair and thorough analysis of plaintiff’s
complaint and the applicable law, so any error committed by the magistrate
judge in failing to consider plaintiff’s response was harmless. In addition,
to cure any possible prejudice to plaintiff, this court incorporates plaintiff’s
response brief in its review.
Plaintiff’s second objection is that he need not prove his allegations of
imminent danger at the pleading stage in order to survive defendants’
motion to revoke in forma pauperis status. While this is true, plaintiffs
must provide more than conclusory allegations in their complaints. See
Taylor v. First Med. Mgmt., 508 F. App’x 488, 492 (6th Cir. 2012). In his
complaint, plaintiff makes general allegations including that he is denied
adequate pain medication, is not being treated for his carpal tunnel
syndrome, shoulder injuries or spinal injuries, and that he suffers from
severe emotional problems. These allegations include no details of the
immediate danger plaintiff faces, such as the time and place of danger,
nature of pain, or actions of specific defendants. Furthermore, none of the
medical documents attached by plaintiff to his complaint suggest that he is
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suffering from any condition that poses a serious threat to his health or a
risk of death.
This objection is expanded upon in plaintiff’s amended objections to
provide additional information from a chronic care medical report. Plaintiff
refers to the report to support his allegations of chronic pain with no
treatment plan in place. However, the medical report shows that Dr.
Holmes continued the treatment plan in place which includes plaintiff
receiving 500 MG of Naproxin for pain. Dr. Holmes also ordered a mental
health referral due to depression and a follow up visit on January 30, 2018.
This is further evidence in support of the magistrate judge’s conclusion that
plaintiff disagrees with the treatment plan of his doctors, as opposed to
evidence supporting plaintiff’s allegation that he is in imminent risk of
immediate danger.
Plaintiff’s third objection is that he properly joined his claims against
the non-DRF defendants. The magistrate judge was correct in only
considering the allegations relating to the DRF defendants in regard to
establishing that plaintiff was or was not in imminent danger. No error was
made in severing the non-DRF defendants for the sole purpose of
conducting this analysis.
Plaintiff’s fourth objection asserts that the magistrate judge failed to
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review all of his filings with regard to imminent danger. The court does not
find that any of the supplemental filings in this case, including plaintiff’s
“Notice of Imminent Danger” (doc. 8) cure the pleading deficiencies found
by the magistrate judge.
In his fifth, sixth and seventh objections, plaintiff states that he was
aware of his burden to overcome the three strikes provision and to allege
imminent danger. Plaintiff refers to his complaint and to his Notice of
Imminent Danger as the documents that contain the allegations in support
of the imminent danger he faces in custody. There is nothing new
included in these three objections that provides a basis for rejecting the
magistrate judge’s recommendation.
In his eighth objection, plaintiff cites the cases of two MDOC inmates
to support his contention that he has pled sufficient facts to demonstrate
imminent danger. Plaintiff’s allegations do not rise to the level of
specificity or seriousness as those alleged by the plaintiffs in Northington v.
Abdellatif, No. 16-CV-12931, 2017 WL 2240273 (E.D. Mich. Apr. 7, 2017) ,
report and recommendation adopted, 2017 WL 2225202 (E.D. Mich. May
22, 2017) or Vandiver, 727 F.3d at 583 (6th Cir. 2013). The allegations
made by plaintiff are more akin to those made in Ritter v. Weidman, where
the plaintiff was diagnosed with “cervical spine nerve damage,
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degenerative cervical spinal disease, low back spinal degenerative
disease, and severe chronic pain.” No. 2:11-CV-0826, 2011 WL 4712008,
*1 (S.D. Ohio Oct 6, 2011), report and recommendation adopted, 2012 WL
604275 (S.D. Ohio Feb. 24, 2012). The Ritter court concluded that
disagreement with prison medical personnel’s treatment plan is insufficient
to establish imminent danger. Id. at *3.
The court finds that plaintiff’s remaining objection (the second
objection labeled “Objection #3”), that the magistrate judge improperly
recommended that the court deny the other motions (docs. 81, 84, 87, 88,
89, and 90) as moot, does not have merit. Having found that plaintiff does
not meet the imminent harm exception to the three strikes provision,
plaintiff’s IFP status is properly revoked and defendant’s motion to dismiss
is properly granted without prejudice. Therefore, the remaining pending
motions are denied as moot. Now, therefore,
IT IS HEREBY ORDERED that plaintiff’s objections to the report and
recommendation are OVERRULED.
IT IS HEREBY FURTHER ORDERED that the magistrate judge’s
report and recommendation is ADOPTED as the order of the court.
IT IS HEREBY FURTHER ORDERED that plaintiff’s in forma
pauperis status is revoked and his complaint is dismissed without
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prejudice. Plaintiff may refile his complaint upon prepaying the filing fee.
Dated: April 16, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 16, 2018, by electronic and/or ordinary mail and also on
Sean Michael Ryan #787263, G. Robert Cotton Correctional
Facility, 3500 N. Elm Road, Jackson, MI 49201.
s/Barbara Radke
Deputy Clerk

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