Ryan #787263 v. Heyns et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION 29 re 22 : Plaintiff's ifp status is REVOKED; Plaintiff to pay $350 filing fee within 30 days or case will be dismissed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

SEAN RYAN,
Plaintiff,
v.

Case No. 1:14-CV-754

DANIEL HEYNS, et al.,

HON. GORDON J. QUIST

Defendants.
_________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff has filed an Objection to Magistrate Judge Ellen Carmody’s January 5, 2015 Report
and Recommendation (“R & R”), which recommends that the Court grant Defendants’ motion to
revoke Plaintiff’s in forma pauperis status because Plaintiff has three strikes. The magistrate judge
further recommended that the Court conclude that Plaintiff’s allegations do not fall within the
exception for allegations of “imminent danger of serious physical injury” set forth in 28 U.S.C. §
1915(g). (R & R at 3–4.)
After conducting a de novo review of the R & R, Plaintiff’s Objection, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted and Defendants’
motion be granted.
The magistrate judge concluded that Plaintiff’s allegations fail to satisfy the “imminent
danger” exception because Plaintiff alleges that Defendants required him to move and ambulate
throughout the prison on several occasions without use of his ambulatory aids. In other words,
Plaintiff’s allegations are limited to past incidents. (R & R at 3–4.) Plaintiff contends in his
Objection that his complaint alleged imminent danger because his allegations demonstrate the

existence of an ongoing series of violations and threat of further physical injury. (Dkt. # 30 at Page
ID#152.) The Court disagrees. “In order to allege sufficiently imminent danger, . . . the threat or
prison condition must be real and proximate and the danger of serious physical injury must exist at
the time the complaint is filed.” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir.
2013) (internal quotation marks omitted). The magistrate judge did not err in concluding that
Plaintiff’s allegations fall short of establishing the “imminent danger” exception. Plaintiff’s
allegations only concern two past incidents that caused him harm, not any ongoing or threatened
future injuries. For example, Plaintiff does not allege that Defendants have permanently deprived
him of his ambulatory aids, thus creating a risk that he will fall and injure himself. Accordingly,
Plaintiff’s Objection lacks merit. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued January 5, 2015 (dkt. # 29 ) is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion to Revoke Plaintiff’s In Forma
Pauperis Status (dkt. # 22) is GRANTED.

Plaintiff’s in forma pauperis status is hereby

REVOKED.
IT IS FURTHER ORDERED that within thirty (30) days of the date of this Order,
Plaintiff must submit the entire $350.00 filing fee. If Plaintiff fails to do so within that time, his
complaint will be dismissed without prejudice. In the event that Plaintiff fails to comply with this
Order, Plaintiff shall still remain liable for the entire filing fee. See In re Alea, 286 F.3d 378,
381–82 (6th Cir. 2002).

Dated: February 23, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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