Sudberry v. Warden, Lebanon Correctional Facility et al

Filing 5

DECISION AND ENTRY adopting Report and Recommendations re 2 Report and Recommendations. Signed by Judge Timothy S. Black on 10/16/2020. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES D. SUDBERRY, R.,
Plaintiff,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION, et.
al.,
Defendants.

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Case No. 1:18-cv-246
Judge Timothy S. Black
Magistrate Judge Stephanie K.
Bowman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 2)
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on April 17, 2018,
submitted a Report and Recommendation, recommending that the Court deny Plaintiff’s
motion to proceed in forma pauperis, because Plaintiff has violated 28 U.S.C.
§ 1915(g)’s three strikes rule. (Doc. 2). Plaintiff filed objections.1 (Docs. 3, 4).

Plaintiff appears to argue that, regardless of whether he has violated 28 U.S.C. § 1915(g)’s
three strikes rule, the Court should allow him to proceed in forma pauperis, because he is in
imminent danger of physical injury. (Docs. 3, 4). 28 U.S.C. § 1915(g) does contain a “safety
valve,” which allows a plaintiff to file a complaint in forma pauperis, when the plaintiff faces
imminent danger. Bloodworth v. Mohr, No. 1:16-cv-1049, 2016 WL 6829647, at *2 (S.D. Ohio
Nov. 21, 2016) (citation omitted). However, as the Magistrate Judge has already explained,
Plaintiff does not qualify for the imminent danger exception. (Doc. 2 at 3). Plaintiff has not
advanced particular allegations that he presently faces impending harm. (Docs. 1, 3, 4). Instead,
Plaintiff’s only particular allegations relate to a past harm that he allegedly suffered while
incarcerated at a different facility. (Docs. 1, 3, 4). This is not sufficient to trigger the imminent
danger exception. Plaintiff’s objections are overruled.
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As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court finds that the
Report and Recommendation should be and is hereby adopted in its entirety.
Accordingly, for the reasons stated above:
1.

The Report and Recommendation (Doc. 2) is ADOPTED;

2.

Plaintiff’s objections (Docs. 3, 4) are OVERRULED;

3.

Within thirty (30) days of the date of this Order, Plaintiff SHALL pay the
full $400 fee ($350 filing fee plus $50 administrative fee) required to
commence this action;

4.

Plaintiff SHALL take notice that his failure to pay the full $400 fee within
thirty (30) days of the date of this Order will result in the dismissal of his
action; and

5.

The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would not be taken in good faith and therefore DENIES Plaintiff
leave to appeal in forma pauperis.

IT IS SO ORDERED.
Date:

10/16/2020

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

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