Moshir v. NEOCC et al

Filing 3

Memorandum Opinion and Order Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 2 ) is denied, and this case is dismissed without prejudice. If Plaintiff wishes to proceed with this action, he must, within thirty days of the date of this order, file a motion to reopen and pay the entire filing fee of $400.00. No other documents will be accepted for filing unless Plaintiff pays the full filing fee. If Plaintiff does not pay the full filing fee within thirty days, this case will be dismissed with 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 Benita Y. Pearson on 1/12/2018. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALI MOSHIR
(#26897-055),
Plaintiff,
v.
NEOCC, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. 4:17CV2316

JUDGE BENITA Y. PEARSON

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

Pro se Plaintiff Ali Moshir, an inmate at the Northeast Ohio Correctional Center
(“NEOCC”), filed this in forma pauperis civil rights action against Defendants NEOCC, Core
Civic, CCA, DOC, USMS Youngstown, State of Ohio, Federal Government, Mr. Larose,
Mahoning County, “Involving Associates (including Mr. Strugis and Mr. Miner),” and “Any and
All Could be Added Party(s).” He alleges in the Complaint (ECF No. 1) that he was improperly
disciplined at NEOCC, subjected to excessive force, and deprived of personal property that was
removed from his cell.
Plaintiff also filed a Motion to Proceed In Forma Pauperis (ECF No. 2). For the reasons
stated below, that motion is denied and this action is dismissed without prejudice.
I. 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

(4:17CV2316)
and costs from the moment they file the Complaint. 28 U.S.C. § 1915(b); McGore v.
Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007). 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 (“PLRA”) 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, 416 Fed.Appx. 560, 562 (6th Cir. 2011). For purposes of
determining whether a pleading satisfies this exception, the Court considers whether the plaintiff

2

(4:17CV2316)
is in imminent danger at the time of the filing of the complaint. Id. (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, 290 Fed.Appx. 796, 797 (6th Cir. 2008). Moreover, “[a]ssertions 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, 483 Fed.Appx. 28, 30 (6th Cir. 2012)
(citing Rittner, 290 Fed.Appx. at 797-98).
II. Analysis
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
that he was under “imminent danger of serious physical injury” at the time the Complaint (ECF
No. 1) was filed. Plaintiff’s Complaint (ECF No. 1) does not contain allegations suggesting he is
in imminent danger of serious physical injury due to Defendants’ actions. Therefore, Plaintiff
may not proceed in forma pauperis in the case at bar.

1

See Moshir v. NEOCC, No. 4:17CV1106 (N.D. Ohio Aug. 31, 2017) (Pearson,
J.); Moshir v. Valentine, No. 4:17CV1459 (N.D. Ohio Aug. 31, 2017) (Pearson, J.); and
Moshir v. NEOCC, No. 4:17CV1480 (N.D. Ohio Oct. 13, 2017) (Pearson, J.).
3

(4:17CV2316)
III. Conclusion
Accordingly, Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2) is denied,
and this case is dismissed without prejudice. If Plaintiff wishes to proceed with this action, he
must, within thirty days of the date of this order, file a motion to reopen and pay the entire filing
fee of $400.00. No other documents will be accepted for filing unless Plaintiff pays the full
filing fee. If Plaintiff does not pay the full filing fee within thirty days, this case will be
dismissed with 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.

January 12, 2018
Date

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

4