Pointer v. Mr. Marc et al

Filing 19

OPINION AND ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS in its entirety; Plaintiff's objection is OVERRULED. Plaintiff shall pay the full $350.00 filing fee within thirty days of the date of this order. Plaintiff's failure to do so will result in this case being dismissed without prejudice for failure to prosecute and the assessment of the full $350.00 filing fee against the plaintiff. Signed by Judge James L Graham on 7-28-11. (ds) Modified on 7/29/2011 to add doc link (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dennis Pointer,
Plaintiff,
v.

Case No. 2:11-cv-0109

Mr. Marc, et al.,

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Defendants.
OPINION AND ORDER
On July 7, 2011, the Magistrate Judge issued a Report and
Recommendation recommending that plaintiff’s motion for leave to
proceed in forma pauperis be denied and that plaintiff be
required to pay the full $350.00 filing fee if he wishes to
proceed with this case.
that recommendation.

Plaintiff Dennis Pointer has objected to

For the following reasons, and after a de

novo review of the issues raised, the Court will overrule Mr.
Pointer’s objection and adopt the Report and Recommendation in
its entirety.
I.

Background

When Mr. Pointer filed this action, he had had three or more
cases or appeals dismissed in the past as frivolous or for
failure to state a claim.

See, e.g., Pointer v. Brown &

Williamson, Case No. 1:97-cv-267 (S.D. Ohio); Pointer v.
Jorgensen, Case No. 1:00-cv-861 (S.D. Ohio); Pointer v. Lyon,
Case No. 1:02-cv-486 (S.D. Ohio).

Consequently, the Magistrate

Judge noted that, under the Prison Litigation Reform Act codified
at 28 U.S.C. §1915(g), the so-called “three strikes” rule, Mr.
Pointer could not proceed in forma pauperis unless he was under
imminent danger of serious physical injury.
At the time of filing, Mr. Pointer was an inmate at the
Chillicothe Correctional Institution.

While Mr. Pointer

addressed the issue of imminent danger in his initial motion,

the allegations of his complaint did not address events at the
Chillicothe Correctional Institution, but instead related to
events at the Allen Correctional Institution.

As a result, the

Magistrate Judge was unable to consider the issue without further
information.

In order to resolve this matter, the Magistrate

Judge ordered Mr. Pointer “to support his request for leave to
proceed in forma pauperis with an affidavit explaining the course
of treatment he has received since he arrived at the Chillicothe
Correctional Institution, accompanied by any medical records or
grievances related to his claim that he is still being denied
treatment in a way that threatens his future health or safety.”
See Order (Doc. #6), p. 5.
Despite having been afforded this opportunity, Mr. Pointer
did not support his request as directed by the Magistrate Judge.
Instead, Mr. Pointer filed a number of documents all of which
related to his incarceration at the Belmont Correctional
Institution.

Because Mr. Pointer failed to demonstrate that he

was in imminent danger at the time of the filing of his
complaint, the Magistrate Judge, in reliance on Vandiver v.
Vasbinder, 2011 WL 1105652 (6th Cir. March 28, 2011), and the
plain language of §1915(g), recommended that Mr. Pointer be
required to pay the entire $350.00 filing fee.
Analysis
In his filing Mr. Pointer, while acknowledging certain
portions of the Report and Recommendation, does not specifically
object to any findings.

Rather, his filing could fairly be

characterized as an explanation as to why his exhibits related to
his incarceration at the Belmont Correctional Institution instead
of at the Chillicothe Correctional Institution.

At most, he

suggests that the doctors at Belmont were following orders issued
by the psychiatrist at Chillicothe.

He also makes brief mention

of circumstances he is encountering now that he is housed at the

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Lebanon Correctional Institution.

Finally, he asserts that the

grievance procedure established by the Ohio Department of
Rehabilitation and Correction is arbitrary and capricious and has
prevented him from being able to have his concerns addressed.
Initially, the Court notes that objections to a report and
recommendation must be specific.
380 (6th Cir. 1995).

Miller v. Currie, 50 F.3d 373,

Further, “[t]he filing of vague, general,

or conclusory objections does not meet the requirement of
specific objections and is tantamount to a complete failure to
object.”

Drew v. Tessmer, 36 Fed. Appx. 561 (6th Cir. 2002).

Consequently, Mr. Pointer’s objection could be overruled on this
ground alone.
On the other hand, even construing Mr. Pointer’s filing as
raising a specific objection, he has failed to show that he was
under imminent danger of serious physical injury as defined by
§1915(g) for purposes of his current complaint filed while he was
incarcerated at the Chillicothe Correctional Institution.

Under

these circumstances, the law is clear: absent allegations of
imminent danger, the Court cannot conclude that Mr. Pointer is
entitled to proceed in forma pauperis.

The Report and

Recommendation therefore correctly concluded that Mr. Pointer’s
motion for leave to proceed in forma pauperis should be denied
and he should be assessed the full $350.00 filing fee.
For the reasons set forth above, the Report and
Recommendation is ADOPTED AND AFFIRMED in its entirety.
Plaintiff’s objection is OVERRULED.

Plaintiff shall pay the full

$350.00 filing fee within thirty days of the date of this order.
Plaintiff’s failure to do so will result in this case being
dismissed without prejudice for failure to prosecute and the
assessment of the full $350.00 filing fee against the plaintiff.

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IT IS SO ORDERED.
Date: July 28, 2011

s/James L. Graham
James L. Graham
United States District Judge

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