Mosher v. Officer Thake et al

Filing 8

Memorandum Opinion and Order denying 2 plaintiff's motion to proceed in forma pauperis, and this action is dismissed without prejudice. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision c ould not be taken in good faith. If Plaintiff wishes to proceed with this action, he must, within thirty (30) days from the date of this Order, pay the entire filing fee of $400.00. No other documents will be accepted for filing unless Plaintiff pays the filing fee in full. If Plaintiff does not pay the full filing fee within thirty (30) days, this case will be dismissed with prejudice. Judge Benita Y. Pearson on 11/28/2017(C,KA)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALI MOSHIR,
Plaintiff,
v.
OFFICER THAKE, et al.,

Defendants.

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CASE NO. 4:17CV1490

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 2]

I.
Pending before the Court is Pro se Plaintiff Ali Moshir’s Motion to Proceed in forma
pauperis (ECF No. 2). This case has been transferred from the United States District Court for
the Western District of New York. See Decision and Order (ECF No. 3). Plaintiff, an inmate at
the Northeast Ohio Correctional Center (“NEOCC”) at the time he filed this in forma pauperis
civil rights action against Defendants Officer Thake, NEOCC, Corrections Corporation of
America (“CCA”)/Core Civic, the federal government, the State of Ohio, the NEOCC Warden,
Mahoning County, Ohio, and “any and all entity(s) that would be added as involved directly
and/or indirectly,” challenges the result of a prison disciplinary hearing. ECF No. 1. Plaintiff
does not assert any legal claims. Plaintiff does, however, seek one billion dollars in damages.
ECF No. 1 at PageID#: 5. For the reasons set forth below, Plaintiff’s Motion to Proceed in forma
pauperis (ECF No. 2) is denied, and this action is dismissed without prejudice.

(4:17CV1490)
II.
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. A prisoner, however, becomes responsible for paying the entire amount of his filing
fees and costs from the moment he files the complaint. 28 U.S.C. § 1915(b); McGore v.
Wrigglesworth, 114 F.3d 601, 604 (1997), overruled on other grounds by Jones v. Bock, 549
U.S. 199, 203 (2007). When an inmate seeks in forma pauperis status, the court need only
determine 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).
When interpreting the “three strike” language of 28 U.S.C. § 1915(g), 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).

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(4:17CV1490)
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. Mar. 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.
Id. 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, at * 1 (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).
III.
Plaintiff has on at least three 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).1 Because Plaintiff has accumulated three
strikes pursuant to 28 U.S.C. § 1915(g), the Court must decide whether he has adequately pled

1

See Moshir v. NEOCC, et al., Case No. 4:17CV1106 (N.D. Ohio Aug. 31. 2017)
(Pearson, J.); Moshir v. Valentine, Case No. 4:17CV1459 (N.D. Ohio Aug. 31, 2017)
(Pearson, J.); Moshir v. NEOCC, et al., Case No. 4:17CV1480 (N.D. Ohio Oct. 13, 2017)
(Pearson, J.).
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(4:17CV1490)
that he was under “imminent danger of serious physical injury” at the time his Complaint was
filed. In his Complaint, Plaintiff challenges a disciplinary hearing which took place on May 12,
2017. ECF No. 1. Therefore, Plaintiff has not established that he was in any danger of physical
harm at the time he filed his Complaint.
IV.
Accordingly, Plaintiff's Motion to Proceed in forma pauperis (ECF No. 2) is denied, and
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. If Plaintiff wishes
to proceed with this action, he must, within thirty (30) days from the date of this Order, pay the
entire filing fee of $400.00. No other documents will be accepted for filing unless Plaintiff pays
the filing fee in full. If Plaintiff does not pay the full filing fee within thirty (30) days, this case
will be dismissed with prejudice.

IT IS SO ORDERED.

November 28, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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