Foster v. Ohio State of

Filing 9

DECISION AND ENTRY DECLINING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 4 ) AND GRANTING PETITIONER'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (Doc. 5 ). Signed by Judge Timothy S. Black on 12/5/2016. (mr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER FOSTER,
Plaintiff,
vs.
STATE OF OHIO,
Defendant.

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Case No. 1:16-cv-920
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

DECISION AND ENTRY
DECLINING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 4) AND
GRANTING PETITIONER’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (Doc. 5)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on October 11, 2016,
submitted a Report and Recommendation. (Doc. 4).
Since the Magistrate Judge issued the Report and Recommendation, Plaintiff has
made four filings to address the recommendation that he be denied in forma pauperis
status: motion for leave to proceed in forma pauperis (Doc. 5); motion for extension of
time to pay fees (Doc. 6); “a distinct and detailed supplement and final of complaint upon
necessity” (Doc. 7); and motion for applicability of the rules in general, and pleading
special matters (Doc. 8). Each of these filings attempt to address the Magistrate Judge’s
recommendation that Plaintiff be denied in forma pauperis status pursuant to 28 U.S.C.
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§ 1915(g) on account of the fact that at least three prior complaints Plaintiff filed while in
custody were dismissed with prejudice at the screening stage for failure to state a claim
upon which relief may be granted. See, e.g., Christopher Foster v. City of Cincinnati, et
al., Case No. 1:14-cv-617 (S.D. Ohio June 22, 2015) (Barrett, J.; Bowman, M.J.) (Docs.
4, 20, 23-24); Christopher Foster v. State of Ohio, et al., Case No. 1:14-cv-668 (S.D.
Ohio Nov. 3, 2014) (Beckwith, J.; Litkovitz, M.J.) (Docs. 4, 7-8); Christopher Foster v.
Hamilton Cnty., et al., Case No. 1:14-cv-642 (S.D. Ohio Oct. 20, 2014) (Black, J.;
Litkvitz, M.J.) (Docs. 4, 7-8).
In view of his three “strikes,” Mr. Foster may not proceed in forma pauperis
unless he falls within the statutory exception set forth in 28 U.S.C. § 1915(g), which
applies to prisoners who are “under imminent danger of serious physical injury.” Under
the plain language of the statute, plaintiff must be in imminent danger at the time that he
seeks to file his suit in federal court to qualify for the exception to the “three strikes”
provision of § 1915(g). See Vandiver v. Vasbinder, 416 F. App’x 560, 561-62 (6th Cir.
2011) (and cases cited therein) (holding in accordance with other circuit courts that “the
plain language of § 1915(g) requires the imminent danger to be contemporaneous with
the complaint’s filing”); accord Chavis v. Chappius, 618 F.3d 162, 169 (2nd Cir. 2010)
(citing Malik v. McGinnis, 293 F.3d 559, 563 (2nd Cir. 2002)); Ciarpaglini v. Saini, 352
F.3d 328, 330 (7th Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir. 2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Banos v. O’Guin, 144 F.3d 883, 884 (5th
Cir. 1998) (per curiam); Chase v. O’Malley, 466 F. App’x 185, 186-87 (4th Cir. 2012)
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(per curiam). Cf. Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007). “By using
the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the
‘three strikes’ rule to prevent impending harms, not those harms that had already
occurred.” Abdul-Akbar, 239 F.3d at 315.
Upon review of the Complaint, as well as Plaintiff’s filing following the report and
recommendation, the Court concludes that Plaintiff has adequately alleged imminent
harm in a manner sufficient to allow the Court to grant him in forma pauperis status.
Plaintiff alleges in a motion filed on November 17, 2016, that “[s]taff members [of the
prison where Plaintiff is incarcerated] have been planning their next attack on me[.]”
(Doc. 8, at 7). Another motion filed the same day states that “[Plaintiff doesn’t] know
when the CIOs that once attacked [him] previously or Bare, the sergeant that threatens to
attack [him] regularly here is going to act.” (Doc. 7, at 4 (emphasis added)). Plaintiff’s
complaint also alleges that he is currently being denied proper medical treatment—for
example, Plaintiff alleges that he has a skin disease that is not being treated. (Doc. 1, at
5). These allegations are unquestionably alleging imminent harm and meet the pleading
standard for granting in forma pauperis status, which only requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” (Vandiver, 416 F.
App’x at 562 (quoting Fed. R. Civ. P. 8(a)(2) and applying that pleading standard to the
imminent harm exception to 28 U.S.C. § 1915(g)’s three strike rule)).
As a pro se plaintiff, Plaintiff is entitled to have his complaint liberally construed.
See Erickson v. Pardus, 551 U.S. 89, 94, (2007) (noting that “a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
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drafted by lawyers” (internal quotation marks and citations omitted)). Because his claims
allege imminent harm and meet the basic required pleading standard, Plaintiff may
proceed in forma pauperis in this civil action.
Accordingly, for good cause shown:
(1) The Magistrate Judge’s Report and Recommendation (Doc. 4) is DECLINED;
(2) Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 5) is
GRANTED;
(3) Plaintiff’s motion for extension of time to pay fees (Doc. 6) and motion for
applicability of the rules in general, and pleading special matters (Doc. 8) are
DENIED AS MOOT.
IT IS SO ORDERED.
Date: 12/5/16

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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