Bell v. Tibbals
Filing
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Memorandum of Opinion and Order. This action 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. Judge Christopher A. Boyko on 8/20/2012. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CHRISTOPHER D. BELL,
Plaintiff,
v.
TERRY TIBBALS, et al.,
Defendants.
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CASE NO. 1:12 CV 617
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
AND ORDER
Plaintiff pro se Christopher D. Bell, an inmate at the Lorain Correctional Institution, filed
this in forma pauperis action on March 12, 2012. His Amended Complaint, filed pursuant to an
Order of this Court dated March 21, 2012, names 49 officers and employees of the Ohio Department
of Rehabilitation and Correction, and raises a wide range of claims related to Bell’s conditions of
confinement over the last several years. For the reasons stated below, this case is dismissed without
prejudice.
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. McGore v. Wigglesworth, 114 F.3d 601, 604 (1997). 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).
In interpreting the “three strike” language of this section, 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 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.1998).
As the 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.” The imminent danger exception
“is essentially a pleading requirement subject to the ordinary principles of notice pleading.”
Vandiver v. Vasbinder, No. 08-2602, 2011 WL 1105652, at *3 (6th Cir. March 28, 2011). For
purposes of determining whether a pleading satisfies this exception, the Court considers whether the
plaintiff is in imminent danger at the time of the filing of the complaint. Vandiver, 2011 WL
1105652 at *2 (noting that “the 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, No. 06–4472, 2008 WL 3889860 (6th Cir. Aug. 20, 2008).
Moreover, “[a]llegations that the prisoner has faced danger in the past and allegations that are
conclusory, ridiculous, or clearly baseless do not suffice to allege imminent harm.” Tucker v.
Pentrich, No. 10-1388, 2012 WL 1700701 at *1 (6th Cir. May 15, 2012).
Bell has on at least three occasions filed a civil action failing to state a claim in this Court.
See, Bell v. Krandall, 1:03 CV 2284; Bell v. Wilkinson, No. 1:03 CV 1559; Bell v. Rowe, No. 1:97
CV 2512; see also, Bell v. Rhodes, No. 05-3666 (6th Cir. Apr. 27, 2006). Apparently aware of this,
he has sought and received liberal leave from this Court in the instant case to provide allegations
indicating he is in imminent danger of serious physical injury
Because Bell has accumulated three strikes pursuant to 28 U.S.C. § 1915(g), the Court must
decide whether he has adequately pled that he was under “imminent danger of serious physical
injury” at the time his Complaint was filed. As set forth above, to be considered imminent, the
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danger must be contemporaneous with the Complaint's filing. Vandiver, 2011 WL 1105652 at *2
(finding that because § 1915(g) uses the present tense in stating the imminent danger exception, “it
is clear from the face of the statute that the danger must exist at the time the Complaint is filed”).
See also Tucker, 2012 WL 1700701 at * 2 (plaintiff sufficiently alleged imminent danger of serious
physical injury where he asserted continuing threats of injury from prison guards); Ashley v.
Dilworth, 147 F.3d 715, 717 (8th Cir.1998) (plaintiff sufficiently alleged imminent danger of serious
physical injury where he claimed that he was placed near inmates on his enemy list and subjected
to ongoing danger). Conclusory or vague allegations of some potential danger are insufficient to
satisfy the exception to the three strikes rule. Tucker, 2012 WL 1700701 at * 1. Similarly, a
prisoner-plaintiff with three strikes falls outside the exception when he is no longer in danger at the
initiation of proceedings in federal court. See Vandiver, 2011 WL 1105652, at *2; Rittner, 2008 WL
3889860 at * * 1 (finding that “a prisoner’s assertion that he or she faced danger in the past is
insufficient to invoke the exception”); Luedtke v. Bertrand, 32 F.Supp.2d 1074, 1077
(E.D.Wis.1999) (allegation of past physical injury is insufficient to meet statutory exception).
Applying the above principles, nothing contained in the voluminous materials filed by Bell
reasonably suggests he is in imminent danger of serious physical injury.
Therefore, he may not
proceed in forma pauperis. See Mitchell v. Tennessee, No. 03-5816, 2004 WL 193153 at *1 (6th Cir.
Jan. 30, 2004).
Accordingly, this action 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.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: August 20, 2012
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