Nash v. Ellis et al
Filing
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Memorandum Opinion and Order: Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2 ) is denied and 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 Patricia A. Gaughan on 10/3/12. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Timothy M. Nash,
Plaintiff,
v.
Nicole M. Ellis, et al.,
Defendants.
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CASE NO. 1:12-CV-1834
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
INTRODUCTION
Pro se Plaintiff Timothy M. Nash filed this action under 42 U.S.C. § 1983 against Cuyahoga
County Prosecutors Nicole M. Ellis and Erica D. Barnhill. In the 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 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.
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 these state criminal proceedings, Plaintiff alleges Defendants Ellis and
Barnhill violated his constitutional rights in a variety of respects. He asserts Defendants appeared
in court proceedings when Plaintiff (who at times represented himself) was not present and
requested continuances without his consent or input. He claims Defendants committed perjury and
“tamper[ed] in transcript and journal entries,” thereby allegedly depriving the state court of
jurisdiction over his criminal cases. (Doc. 1 at 1). He also asserts Defendants violated the Brady
doctrine by introducing evidence in his criminal trials that had not been disclosed in discovery. See
Brady v. Maryland, 373 U.S. 83, 87 (1963) (finding that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).
In addition, he blames Defendants for his exposure to MRSA1 at the Cuyahoga County Jail.
He asserts that “if the defendants had not involved themselves in a sham . . . legal process I would
not have caught MRSA decease [sic] January 30, 2012, nor would I be subjected to teeth loss and
possible poisoning from gum decease [sic], nor would I be subjected to imminent dangers of serious
injury from other prisoners who hate me; starting to see small red bumps from suspected skin
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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decease [sic].” (Doc. 1 at 3).
The Cuyahoga County Court of Common Pleas docket reflects 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 postrelease 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 July 17, 2012, seeking monetary damages. (Doc. 1) On that
same date, he also filed an Application to Proceed In Forma Pauperis. (Doc. 2).
STANDARD OF REVIEW FOR 28 U.S.C. § 1915(g)
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
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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).
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
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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 he may again contract MRSA due to his ongoing problems with gum disease and
“small red bumps.” (Doc. 1 at 3). For the following reasons, the Court finds these allegations are
insufficient to establish the “imminent danger” exception to § 1915(g).
As an initial matter, the Court notes it has already dismissed a previous civil rights action
filed by Plaintiff against Defendants Ellis and Barnhill which raises nearly identical constitutional
claims. See Nash v. Reid, et al., Case No. 1:12CV812 (N.D. Ohio)(Gwin, J.)(Doc. 5). The fact that
this Court has already addressed and dismissed the very concerns raised by Plaintiff in the instant
action is, in and of itself, sufficient grounds to dismiss Plaintiff’s Complaint herein.
Even if the Court were to consider the more recent allegations raised in the instant action,
however, it would find they are insufficient to establish the “imminent danger” exception to §
1915(g). The Court first notes that the only named defendants in this action are attorneys Nicole
Ellis and Erica Barnhill. As Cuyahoga County prosecutors, Defendants Ellis and Barnhill have no
personal control over or responsibility for the daily operations of either the Cuyahoga County Jail
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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.
Moreover, 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. Judge Dan
Aaron Polster of this 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, Cuyahoga County Assistant Public
Defender Jason Haller, and Plaintiff. During this teleconference, Plaintiff informed the Court that
he had been seen by the Cuyahoga County Jail physician on July 16, 2012 and 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).
Plaintiff herein does not allege that the Jail failed to provide him medical assistance in
accordance with Judge Polster’s Order. Indeed, in another action filed in this Court, Nash v. Tobik,
Case No. 1:12CV1422 (N.D. Ohio)(Polster, J.), Plaintiff indicated in a recent filing that after the
Court’s teleconference, he “was taken immediately to the county jail medical floor for examination
and culture.” See Case No. 1:12CV1422 (Doc. 6 at 1). Moreover, in yet another action filed in this
Court, Plaintiff specifically stated in a recent filing that he was examined by and received treatment
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from a prison physician for his “red bumps” condition. See Nash v. Suster, Case No. 1:12CV1786
(N.D. Ohio) (Gaughan, J.) (Doc. 4 at 1).
Accordingly, and for all the reasons set forth above, the Court finds the “imminent danger”
exception to § 1915(g) does not apply in this case.
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) (Polster, J.) (Doc. 3 at 3-4).
The Court has addressed the instant action because the 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.
CONCLUSION
Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is denied and 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.2
IT IS SO ORDERED.
Dated: 10/3/12
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
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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