Rittner, Sr. v. Carr et al

Filing 12

OPINION and ORDER OVERRULING plaintiff's objection 10 ADOPTING The Magistrate Judge's Report and Recommedation 3 ; Motion for Leave to Proceed in forma pauperis, 1 , is DENIED and the plaintiff is required to pay the entire $350.00 filing fee. (See order for specific details). Signed by Judge James L Graham on 2/24/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Daniel L. Rittner, Sr.,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-0826

Paul Weidman, et al.,

:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Defendants.

:
OPINION AND ORDER

This matter is before the Court on Plaintiff Daniel L.
Rittner, Sr.’s objections to a Report and Recommendation issued
by the Magistrate Judge on October 6, 2011.

The Court, having

reviewed the record de novo, finds for the reasons set out below
that the objections to the Report and Recommendation are without
merit.

Mr. Rittner’s objections are OVERRULED and the Report and

Recommendation is ADOPTED.
I.
When objections are received to a Magistrate Judge’s Report
and Recommendation on a dispositive matter, the assigned District
Judge “shall make a de novo determination ... of any portion of
the magistrate judge’s disposition to which specific written
objection has been made ....”

Fed. R. Civ. P. 72(b).

After

review, the District Judge “may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the
matter to the magistrate judge with instructions.”
28 U.S.C. §636(b)(1)(B).

Id.; see also

General objections are insufficient to

preserve any issues for review; “[a] general objection to the
entirety of the magistrate's report has the same effects as would
a failure to object.”

Howard v. Secretary of Health and Human

Services, 932 F.2d 505, 509 (6th Cir. 1991).
II.

In the Report and Recommendation, the Magistrate Judge
recommended that Mr. Rittner’s motion to proceed in forma
pauperis (#1) be denied and that he be required to pay the entire
$350.00 filing fee because he is subject to the

“three-strikes”

rule under 28 U.S.C. §1915(g) and has not met the imminent danger
exception.

In reaching this conclusion,

the Magistrate Judge

noted the litany of medical issues, alleged disregard of his
medical restrictions, and the threat of imminent danger of
serious physical injury asserted in the complaint.

The

Magistrate Judge, citing Vandiver v. Vasbinder, 416 Fed.Appx.
560, 563 (6th Cir. 2011), recognized that the denial of medical
treatment can satisfy the imminent danger requirement.

However,

the Magistrate Judge concluded, based upon Mr. Rittner’s
discussion in his complaint that he had been “seen by medical
personnel on at least four occasions over an approximate six-week
period” that Mr. Rittner was not in danger of serious physical
injury at the time he filed the complaint.

See Report and

Recommendation, p. 5.
In reaching this conclusion, the Magistrate Judge relied
upon several cases holding that where a prisoner has received
medical treatment but does not agree with the medical advice,
imminent danger has not been established.

See, e.g., Brown v.

Beard, 492 F.Supp.2d 474, 478 (E.D. Pa. 2007)(prisoner was not in
imminent danger when disputing the quality of treatment he was
receiving for various medical conditions); Watley v. Escobar,
2010 WL 1643801 (N.D. Ohio April 22, 2010)(no imminent danger
where plaintiff received medical treatment but disagreed with
conclusions of medical personnel); James v. Hunter, 2009 WL
3052131, *3 (S.D Alabama September 18, 2009) (disagreement with
medical treatment provided does not satisfy § 1915(g) exception);
Joyner v. Fish, 2008 WL 2646691 (W.D.Va. July 3, 2008) (imminent
danger not demonstrated when plaintiff had been given thorough

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medical treatment, never been denied doctor visit, and been
advised to take medication but disagreed with opinions of medical
professionals); Baugh v. Missouri Dept. of Corrections, 2008 WL
4831783, n.1 (E.D. Mo. November 5, 2008)(no imminent danger where
plaintiff admitted he was offered treatment for medical
conditions but disagreed with offered treatment).
III.
In his objection, Mr. Rittner does not address the
Magistrate Judge’s conclusion that he is subject to the “threestrikes” rule.

Further, he does not address specifically the

Magistrate Judge’s conclusion that he has failed to allege
imminent danger of serious physical injury.

Rather, Mr. Rittner

appears to be asserting the merits of both his Eighth Amendment
claim for the denial of medical treatment and a First Amendment
claim for the denial of access to the courts perhaps based on the
mistaken belief that the Magistrate Judge recommended the
dismissal of his complaint.
To the extent, however, that Mr. Rittner’s objection could
be construed as asserting disagreement with the Magistrate
Judge’s conclusion that he has not satisfied the imminent danger
exception, his objection will be overruled.

In his objection,

Mr. Rittner again details at some length his various medical
conditions.

However, as in his complaint, he indicates that he

has been seen by medical personnel.

At most, the only objection

he potentially has raised is to the Magistrate Judge’s conclusion
that, for the purposes of the imminent danger exception, his
complaint asserts disagreement with the medical opinions he has
received, not the denial of medical treatment.

Despite his

objection to the Magistrate Judge’s characterization of his
allegations in this way, Mr. Rittner again proceeds to assert his
disagreement with various recommendations or diagnoses rather
than the denial of medical treatment.

For example, Mr. Rittner

states that defendants have prescribed Tegretal for his seizure
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disorders when he believes they should have prescribed
oxcarbasepine.

Further, he describes being treated for a skin

infection after which he developed an internal infection and
another exam where he was given pain medication for what
defendant Weidman described as “‘very bad’ low back arthritis.”
The only other issue raised in Mr. Rittner’s objection is an
assertion that he “indicated injury and pending injury, imminent
danger” with respect to his access to the courts claim.

Mr.

Rittner has not alleged how the denial of access to the courts
could subject him to the danger of serious physical injury as
contemplated by 28 U.S.C. §1915(g).

Further, courts typically

require an Eighth Amendment violation to meet the requirements of
§1915(g).

See Cohen v. Growse, 2011 WL 947085, *5 (E.D. Ky.

March 14, 2011) (citing cases).
IV.
The Court has conducted a de novo review of Mr. Rittner’s
complaint and agrees with the Magistrate Judge that Mr. Rittner
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 Belmont
Correctional Institution.

Consequently, Mr. Rittner’s motion to

proceed in forma pauperis will be denied and Mr. Rittner will be
required to pay the entire $350.00 filing fee.

If Mr. Rittner

fails to pay the entire filing fee within thirty days of this
order, this action will be dismissed without prejudice for
failure to prosecute and Mr. Rittner will be assessed the $350.00
filing fee.

See, e.g., Cohen, 2011 WL 947085 at *5-6; see also

In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).
V.
For the reasons stated above, the Court OVERRULES
plaintiff’s objection (#10) and hereby ADOPTS the Magistrate
Judge’s Report and Recommendation (#3).
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The motion to proceed in

forma pauperis (#1) is denied and plaintiff is required to pay
the entire $350.00 filing fee.

If plaintiff fails to pay the

entire filing fee within thirty days of this order, this action
will be dismissed without prejudice for failure to prosecute.
IT IS SO ORDERED.

Date: February 24, 2012

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

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