Rittner, Sr. v. Carr et al

Filing 3

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Daniel L. Rittner, Sr. It is recommended that the motion to proceed in forma pauperis (# 1 ) be denied and that plaintiff be required to pay the entire $ 350.00 filing fee. It is further recommended that plaintiff's failure to do so within 30 days of an order adopting this Report and Recommendation should result in this action being dismissed without prejudice for failure to prosecute and the assessment of the $350.00 filing fee against plaintiff. Objections to R&R due by 10/24/2011. Signed by Magistrate Judge Terence P Kemp on 10/6/2011. (pes1)

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.

:

REPORT AND RECOMMENDATION
Plaintiff, Daniel L. Rittner, Sr., a state prisoner, filed
this civil rights action under 42 U.S.C. §1983 against various
state prison officials.

He has not paid the filing fee, but has

filed a motion for leave to proceed in forma pauperis.

That

motion was accompanied by the required trust fund statement from
his institution.

In the usual case, the Court would assess a

partial filing fee based on that trust fund statement.
However, Mr. Rittner has had three or more cases or appeals
dismissed in the past as frivolous or for failure to state a
claim.

See, e.g., Rittner v. Moore, 2006 WL 2552492, Case No.

3:06-cv-1565 (N.D. Ohio September 5, 2006); Rittner v. Baker,
2005 WL 1802138, Case No. 3:05-cv-7188 (N.D. Ohio July 28, 2005);
Rittner v. Williams, 2008 WL 657669, Case No. 3:05-cv-7118 (N.D.
Ohio March 7, 2008); see also Rittner v. Kinder, 2006 WL 2794967,
Case No. 3:06-cv-1943 (N.D. Ohio September 28, 2006) affirmed 290
Fed.Appx. 796, 798 (6th Cir. August 20, 2008) (unpublished).
Under that portion of the Prison Litigation Reform Act codified
at 28 U.S.C. §1915(g), the so-called “three strikes” rule, a
prisoner may not bring a suit in forma pauperis if that prisoner
“has, on 3 or more occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the
United States that was dismissed on the ground that it is

frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.”

Thus, he is not entitled to proceed in

forma pauperis and to pay the filing fee in installments unless
he can demonstrate that he meets the “imminent danger”
requirement of §1915(g).

Otherwise, he must pay the entire

filing fee (currently $350.00) at the outset of the case.
Mr. Rittner has addressed the issue of “imminent danger” in
his initial motion (#1).

There, he argues that he satisfies the

“imminent danger” requirement for a number of reasons.

First,

Mr. Rittner claims that he is in such danger because of the
defendants’ deliberate indifference to his numerous medical
restrictions and their refusal to allow him to discuss his
medical needs with chief medical officers.

Specifically, his

complaint contains the following allegations.

Since

approximately 2002, Mr. Rittner has been diagnosed with cervical
spine nerve damage, degenerative cervical spinal disease, low
back spinal degenerative disease, and severe chronic pain.

He

contends that he is “self-prohibited” from taking strong
medication to address his conditions and has been prescribed a
TENS unit by specialists at the Ohio State University Medical
Center Pain Clinic.

While housed at the Allen Correctional

Institution prior to his transfer to the Belmont Correctional
Institution he was prescribed a “medical idle” prison
classification.

While the complaint is not clear, it suggests

that prior to his transfer to Belmont, in addition to his TENS
unit and his medical idle restriction he was also afforded the
following accommodations - a TENS unit in transport, soft
security restraints to protect him from injury, pain and
suffering, an eye patch, knee braces, a wrist brace and low range
and no lifting restrictions.

Apparently, since his transfer to

Belmont, Mr. Rittner has been seen by various medical personnel
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at that institution but they have not granted him the same
accommodations, although he has been granted a bottom bunk
restriction.

According to Mr. Rittner, certain medical personnel

at Belmont either have declined to discuss his various conditions
and need for restrictions with him at his appointments or have
falsified his medical records relating to these appointments in
an effort to support the denial of his requested restrictions.
Further, they have declined to provide various medications
available to him at the Allen Correctional Institution but have
“demanded” that he take a pain drug despite his self-prohibition.
Based on the above, he claims that he is in imminent danger
of physical injury resulting from pain he will suffer if given a
job assignment, transported without soft security restraints or a
TENS unit, housed on the second floor, or has a tooth extracted.
He also contends that daily activities cause him pain including
“bending, sitting, lying, standing for even short periods of
time.”

He asserts that he will suffer psychosis and personality

changes from any pain medication, neuropathy, headache, nausea,
and depression from any physical activity, and that he may suffer
a heart attack, seizure, coma or humiliating death.
Mr. Rittner also asserts that he is in imminent danger as a
result of the alleged refusal, presumably by Belmont staff, to
allow him to discuss his medical needs with chief medical
officers.

This refusal, he contends, has resulted in untreated

colo-rectal pain, seizures, and may result in numerous other
conditions including permanent paralysis of the legs and
premature death.

Finally, he asserts imminent danger as a result

of the alleged falsification of his medical records, delays in
receiving legal mail, and delays in grievance responses.
A fair reading of Mr. Rittner’s complaint indicates that
its primary focus is that the defendants are not addressing his
chronic pain condition in either the way it was being addressed
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at the Allen Correctional Institution or in the way he believes
it should be addressed, and that this has placed him in imminent
danger of serious physical injury.

The Sixth Circuit has

recently held that the denial of medical treatment can satisfy
the imminent danger requirement.

Vandiver v. Vasbinder, 416 Fed.

Appx. 560, 563 (6th Cir. March 28, 2011) (alleged failure to
treat diabetes and Hepatitis C) citing Ibrahim v. District of
Columbia, 463 F.3d 3, 6-7 (D.C. Cir. 2006)(alleged failure to
treat hepatitis C).

Other Courts of Appeals outside this Circuit

likewise have found that the denial of treatment may result in
the imminent danger of serious physical injury within the meaning
of 28 U.S.C. §1915(g).

For example, in Jackson v. Jackson, 335

Fed.Appx. 14, 15 (11th Cir. 2009), the Eleventh Circuit found
that the denial of hernia surgery met the imminent danger of
serious physical injury requirement.

The Eleventh Circuit again

found the requirement satisfied in Brown v. Johnson, 387 F.3d
1344, 1350 (11th Cir. 2004) as a result of the withdrawal of
treatment for HIV and Hepatitis C, both chronic and possibly
fatal diseases.

Further, the Seventh Circuit has found that

“heart palpitations, chest pains, labored breathing, choking
sensations, and paralysis in ... legs and back” as a result of
the denial of medication constituted serious physical injury.
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).
Additionally, the failure to treat severe chronic pain has been
found to satisfy the imminent danger requirement under specific
circumstances.

Freeman v. Collins, Case No. 2:08-cv-71, 2011 WL

1397594, *6 (S.D. Ohio April 12, 2011) (Deavers, M.J.);

Perez v.

Sullivan, 2005 WL 3434395, *2 (W.D. Wis. December 13, 2005).
Here, however, Mr. Rittner’s allegations of imminent harm
are vague and conclusory.

Moreover, the allegations of his

complaint indicate that Mr. Rittner has been seen by the medical
staff at Belmont Correctional Institution, has had x-rays and lab
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work, and has been advised to take pain medication.
Complaint (#1), at ¶¶23, 24.

See, e.g.,

In his complaint, Mr. Rittner

references being seen by medical personnel on at least four
occasions over an approximate six-week period.

Id. at ¶23 (July

13, 2011); ¶24 (June 16, 2011); ¶40 (June 13, 2011 and July 25,
2011).

Consequently, the essence of Mr. Rittner’s complaint is

that he disagrees with the opinions of the medical staff at the
Belmont Correctional Institution who, by his own admission, have
examined him.

Such allegations are insufficient to satisfy the

imminent danger requirement of 28 U.S.C. 1915(g).

Numerous other

courts have reached the same conclusion in similar circumstances.
See, e.g., 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 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); Brown v. Beard, 492 F.Supp.2d 474, 478 (E.D.
Pa. June 27, 2007)(prisoner was not in imminent danger when
disputing the quality of treatment he was receiving for various
medical conditions).
In summary, 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.
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Consequently, the Court recommends that the pending motion to
proceed in forma pauperis be denied and that Mr. Rittner be
required to pay the entire $350.00 filing fee.

The Court further

recommends that, if Mr. Rittner fails to pay the entire filing
fee within thirty days of an order adopting this Report and
Recommendation, this action be dismissed without prejudice for
failure to prosecute and that Mr. Rittner still be assessed the
$350.00 filing fee.

See, e.g., Cohen v. Growse, 2011 WL 947085,

*5-6 (E.D. Ky. March 14, 2011); see also In re Alea, 286 F.3d
378, 381 (6th Cir. 2002).
IV.

Recommended Decision

Based on the above discussion, it is recommended that the
motion to proceed in forma pauperis (#1) be denied and that
plaintiff be required to pay the entire $350.00 filing fee.

It

is further recommended that plaintiff’s failure to do so within
30 days of an order adopting this Report and Recommendation
should result in this action being dismissed without prejudice
for failure to prosecute and the assessment of the $350.00 filing
fee against plaintiff.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
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28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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