Nash v. Tobik et al
Filing
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Memorandum Opinion and Order denying 2 Affidavit/Declarationand this action is dismissed. 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 Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
TIMOTHY M. NASH,
Plaintiff,
v.
ROBERT TOBIK, et al.
Defendants.
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CASE NO. 1:12CV1422
JUDGE DAN AARON POLSTER
Memorandum of Opinion and Order
Pro se Plaintiff Timothy M. Nash filed this action under 42 U.S.C. §§ 1983, 1985, and 1986
against Cuyahoga County Public Defender Robert Tobik and Cuyahoga County Assistant Public
Defenders Kathline Demetz and Jason Haller. In the Amended Complaint, Plaintiff alleges
Defendants deprived him of his constitutional rights during the course of criminal proceedings in
the Cuyahoga County Court of Common Pleas. He seeks immediate release and monetary relief.
Plaintiff also filed an Application to Proceed In Forma Pauperis. (Doc. 2). For the reasons
set forth below, that Application is denied and this action is dismissed.
I. Background
Plaintiff is a state prisoner, currently incarcerated at the Richland Correctional Institution
in Mansfield, Ohio. He was indicted in September 2011 on charges of breaking and entering, grand
theft, vandalism, and possessing criminal tools. See Cuyahoga County Ct. Cmn. Pl. Case No. CR11-553521. He was released on bond in October 2011. Id. On November 28, 2011, Plaintiff was
arrested again, this time for breaking and entering, theft, vandalism, disrupting public service,
possessing criminal tools, and interference with electrical wires. See Cuyahoga County Ct. Cmn.
Pl. Case No. CR-11-556979. He was indicted on these charges on December 7, 2011, and held as
a pre-trial detainee in the Cuyahoga County Jail. Id.
In the course of state proceedings relating to these two criminal cases, Plaintiff alleges
Defendants Demetz and Haller, his public defenders, violated his constitutional rights by
“concealing evidence and/or tampering with evidence directly or indirectly thereby participating
in criminal acts of conspiracy, perjury, and tampering by the actions or lack of action by the
defendants and even co-workers.” (Doc. 4 at 3). He also asserts Defendants put him in “imminent
danger of my health and safety,” by allowing him to remain incarcerated and thereby exposed to
harm from MRSA1 disease and “serious injury from enemies who hate me who are throughout this
jail.” (Doc. 4 at 2). In documents filed subsequent to his Amended Complaint, Plaintiff further
alleges he received medical treatment for “red bumps” on his body “that act as if [they are] MRSA
decease.” (Doc. 6 at 1).
The Cuyahoga County Court of Common Pleas docket reflects that Plaintiff was found
guilty after jury trials in Case Nos. CR-11-553521 and CR-11-556979 of the following charges:
breaking and entering, grand theft, vandalism, possessing criminal tools, disrupting public service,
and interfering with electrical wires. He was sentenced to a term of 18 months imprisonment and
post-release control for up to three years. The state court docket reflects Plaintiff was transferred
from the Cuyahoga County Jail to a state prison facility on August 7, 2012.
Plaintiff filed a Complaint on June 6, 2012, seeking immediate release and monetary
damages. (Doc. 1) He filed an Application to Proceed In Forma Pauperis on the same date. (Doc.
2). Plaintiff thereafter filed a “Writ of Injunction” on June 18, 2010 and two “supplements” to his
Writ on July 26, 2010 and August 6, 2010. (Doc. 3, 5, 6). Plaintiff filed an Amended Complaint
(Doc. 4) on July 10, 2010.
II. Standard of Review for 28 U.S.C. § 1915(g)
1
Methicillin-resistant Staphylococcus aureus (“MRSA”) is a type of staph bacteria
that does not respond to some antibiotics that are commonly used to treat staph infections.
See www.ncbi.nlm.nih.gov/pubmedhealth/PMH0004520.
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Pursuant 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); McGore v. Wigglesworth,
114 F.3d 601, 604 (1997). 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).
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
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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).
This Court has already found that Plaintiff herein has accumulated three strikes within the
meaning of 28 U.S.C. § 1915(g). Specifically, in Nash v. Kochavar, Case No. 1:11CV329 (N.D.
Ohio)(Gwin, J.), this Court noted that, while incarcerated, Plaintiff filed more than three previous
actions which were dismissed as frivolous, including Nash v. McFaul, No. 1:11 CV 330 (N.D. Ohio
April 1, 2011)(Polster, J.); Nash v. Reid, No. 1:11 CV 70 (N.D. Ohio Mar. 14, 2011)(Polster, J.);
Nash v. Reid, No. 1:10 CV 2926, (N.D. Ohio Feb 1, 2011)(Boyko, J.); Nash v. Cuyahoga County,
No. 1:10 CV 2386 (N.D. Ohio Dec. 20, 2010)(Oliver, J.); Nash v. City of Cleveland, No. 1:05 CV
1578 (Aug. 4, 2005)(Manos, J.); Nash v. Cuyahoga County Metropolitan Housing Authority, No.
1:98 CV 2145 (Nov. 2, 1998)(Nugent, J.).
Because Plaintiff 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. Plaintiff’s allegations of “imminent danger” relate
principally to his exposure to MRSA while he was incarcerated at the Cuyahoga County Jail and
his concern that “red bumps” on his body may signal another MRSA infection. As an initial
matter, this Court has already considered and addressed this issue in another action recently filed
by Plaintiff, i.e. Nash v. Cuyahoga County Jail, Case No. 1:12CV1870 (N.D. Ohio)(Polster, J.).
In that case, Plaintiff alleged he was in “imminent danger” due to the presence of “red bumps” on
his body that he feared were signs of a recurring MRSA infection.
The Court conducted a
teleconference regarding Plaintiff’s allegations on August 2, 2012 with Cuyahoga County Jail
Director of Corrections Ken Kochavar, Assistant Law Director of the Cuyahoga County Law
Department Christopher Russ, defendant Haller, and Plaintiff. During this teleconference, Plaintiff
informed the Court that he had been seen by the Cuyahoga County Jail physician on July 16 and
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given a ten-day course of antibiotics. He claimed the antibiotics did not cure the “red bumps.”
Accordingly, the Court issued an Order on August 3, 2012 requiring Plaintiff to be seen again by
the physician for follow-up treatment by 3:00 p.m. on that date. See Nash v. Cuyahoga County Jail,
Case No. 1:12CV1870 (N.D. Ohio) (Doc. 3 at 2).
In his “Supplement to Writ” filed August 6, 2012, Plaintiff states that, after the Court’s
teleconference, he “was taken immediately to the county jail medical floor for examination and
culture.” (Doc. 6 at 1). As Plaintiff has received medical attention pursuant to this Court’s previous
Order, the Court finds he is not in imminent danger of serious physical injury for purposes of §
1915(g).
Moreover, Plaintiff’s allegations are insufficient to warrant relief for the additional reason
that the only named defendants in this action are attorneys Robert Tobik, Kathline Demetz, and
Jason Haller. As Cuyahoga County Public Defenders, these Defendants have no personal control
over or responsibility for the daily operations of either the Cuyahoga County Jail or the Richland
Correctional Institution (“RCI”). They are not legally responsible for conditions at the Jail or RCI
that may have allegedly resulted in cases of MRSA, nor are they responsible for any medical
treatment Plaintiff may have received at either of these institutions.
Finally, the Court notes that, on August 3, 2012, Plaintiff was permanently enjoined from
filing new lawsuits or other documents in this Court without first seeking leave of Court to do so.
See Nash v. Cuyahoga County Jail, Case No. 1:12CV1870 (N.D. Ohio) (Doc. 3 at 3-4). The Court
has addressed the instant action because the Amended Complaint herein was filed prior to the entry
of the August 3, 2012 permanent injunction. However, Plaintiff is cautioned that the terms of the
injunction are still in effect, and he may not file any other new lawsuits or any other documents in
this action without following the specific procedures set forth in this Court’s Order dated August
3, 2012.
III. Conclusion
Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied and this action is
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dismissed. 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.2
IT IS SO ORDERED.
/s/Dan Aaron Polster 9/28/12
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
2
28 U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies that it is not taken in good faith.”
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