Freeman v. Mohr et al
Filing
27
ORDER ADOPTING the REPORT AND RECOMMENDATION 24 in that the Motion to Proceed In Forma Pauperis 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. Signed by Judge Gregory L Frost on 2/5/13. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dwight Freeman,
Plaintiff,
Case No. 2:11-cv-878
v.
JUDGE GREGORY L. FROST
Magistrate Judge Kemp
Gary C. Mohr, et al.,
Defendants.
ORDER
This matter is before the Court on plaintiff Dwight Freeman’s objections to a Report and
Recommendation issued by the Magistrate Judge on October 30, 2012. 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. Freeman’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.” Id.; see also 28 U.S.C. § 636(b)(1)(B). 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.
Freeman’s motion to proceed in forma pauperis (Doc. 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 Mr. Freeman’s numerous assertions of imminent danger arising from the
alleged disregard of his medical conditions including his need for a hernia repair and pinched
nerves in his neck. 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 the 28-page exhibit
attached to Mr. Freeman’s complaint which included information regarding the medical care he
had received relating to these conditions, that Mr. Freeman was not in danger of serious physical
injury at the time he filed the complaint. See Report and Recommendation, p. 6.
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 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.
The focus of Mr. Freeman’s objection is that the Magistrate Judge erred in concluding
that he had not demonstrated imminent danger of serious physical injury. Further, Mr. Freeman
argues that in reaching that conclusion, the Magistrate Judge should have considered only the
allegations of the complaint and should not have considered the information contained in the
-2-
exhibit Mr. Freeman attached to his complaint.
With respect to Mr. Freeman’s argument that the Magistrate Judge erred in considering
the exhibits attached to the complaint, courts are permitted to consider materials attached to the
complaint, especially when these attachments clarify matters. See Arauz v. Bell, 307 Fed.Appx.
923 (6th Cir. 2009); Talal v. White, 403 F.3d 423, 427 (6th Cir. 2005). Consequently, the
Magistrate Judge did not err in doing so here.
With respect to the issue of imminent danger, Mr. Freeman continues to detail his need
for a hernia repair and for treatment for pain caused by a herniated disc. As the Magistrate Judge
found, however, the essence of Mr. Freeman’s complaint is simply that he disagrees with the
opinions of the medical personnel who have examined him. Although Mr. Freeman devotes
pages of his objections to asserting that he is subject to imminent danger, the exhibits attached to
his complaint, as detailed at some length in the Report and Recommendation, indicate otherwise.
According to the information he provided, Mr. Freeman has received medical attention for both
his hernia and his pinched nerve, has been prescribed medication, and has been advised to keep
health services informed of any changes in his condition. Mr. Freeman’s reliance on Jackson v.
Jackson, 335 Fed. Appx. 14 (11th Cir. 2009) does not require a different result because,
according to his documents, hernia surgery Mr. Freeman’s condition is considered an elective
procedure. For all of these reasons, Mr. Freeman’s objections will be overruled.
IV.
The Court has conducted a de novo review of Mr. Freeman’s complaint and agrees with
the Magistrate Judge that Mr. Freeman 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 Ohio State Penitentiary. Consequently, Mr. Freeman’s motion to
proceed in forma pauperis will be denied and Mr. Freeman will be required to pay the entire
$350.00 filing fee. If Mr. Freeman 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. Freeman
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.
-3-
For the reasons stated above, the Court OVERRULES plaintiff’s objection (Doc. 26)
and hereby ADOPTS the Magistrate Judge’s Report and Recommendation (Doc. 24). The
motion to proceed in forma pauperis (Doc. 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.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?