Martin v. Cook et al

Filing 14

ORDER sustaining Plaintiff's Objections to 6 Report and Recommendations. This matter is recommitted to the Magistrate Judge for assessment of a partial filing fee, and for consideration of Plaintiff's request for appointment of counsel. Signed by Judge Algenon L. Marbley on 2/4/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT MARTIN,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
WARDEN COOK, et al.,
Defendants.

Case No. 2:13-CV-00634
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter is before the Court on Plaintiff’s Objections to the Report and
Recommendation issued in this case (Doc. 6), recommending that the Court deny Plaintiff’s
Motion to proceed in forma pauperis (Doc. 2), on the grounds that Plaintiff has not demonstrated
the “imminent danger” required under 28 U.S.C. § 1915(g). Plaintiff insists that he has
demonstrated the requisite imminent danger, and further directs the Court to his recently filed
Amended Complaint (Doc. 11, 12) for further support. Plaintiff also asks the Court to appoint
counsel to represent him in this matter. (Doc. 13). Because Plaintiff has not yet served process
on Defendants, they have not responded to any of Plaintiff’s motions.
For the reasons set forth herein, the Court SUSTAINS Plaintiff’s Objections to the
Report and Recommendation. The matter is hereby recommitted to the Magistrate Judge for the
assessment of a partial filing fee, as well as for disposition of Plaintiff’s request for counsel.
I.

BACKGROUND

Plaintiff filed his Complaint on June 10, 2013 (Doc. 1), seeking relief for violations of his
civil rights while incarcerated at the Frazier Health Center at the Pickaway Correctional
Institution. The case was at first wrongly filed with the Northern District of Ohio, but was

transferred to this Court on June 28, 2013. (Doc. 3). Plaintiff seeks to proceed in forma paupers
(“IFP”), and has submitted a Motion to that effect, with an affidavit in support. (Doc. 2).
Because Plaintiff has had three or more cases dismissed in the past as frivolous or for failure to
state a claim, the Magistrate Judge recommended that the Motion be denied (Doc. 6).
On August 8, 2013, Plaintiff moved for leave to file an amended complaint (Doc. 9),
which the Court granted under Fed. R. Civ. P. 15(a)(1)(A) (Doc. 10). Plaintiff sought to amend
his complaint to add further defendants, as well as to add additional allegations relating to his
medical condition. On August 28, Plaintiff filed a Motion renewing his request to file an
Amended Complaint, and requesting the Court to appoint counsel to represent him. (Doc. 11).
On December 2, Plaintiff filed his new Complaint. (Doc. 12). Finally, on December 9, Plaintiff
filed a supplemental pleading in support of his argument that he faces “irreparable harm and
imminent injury.” (Doc. 13). Plaintiff also renewed his request for counsel. (Id.).
II.

STANDARD OF REVIEW

When a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Because Plaintiff has had, while incarcerated, three or more cases or appeals dismissed in
the past as frivolous or for failure to state a claim upon which relief can be granted, see Martin v.
Woods, No. 2:12-CV-00341 (S.D. Ohio), Martin v. Welch, No. 2:10-CV-00736 (S.D. Ohio),
Martin v. Ohio Supreme Court, No. 2:04-CV-00613 (S.D. Ohio), Martin v. Mrs. Lowery, Case
No. 2:04-CV-00641 (S.D. Ohio), his request to proceed IFP falls under the portion of the Prison

2

Litigation Reform Act codified at 28 U.S.C. § 1915(g), the so-called “three strikes” rule. Under
§ 1915(g), the Court can grant Plaintiff IFP status only if he demonstrates that that he is “under
imminent danger of serious physical injury.” This requires that the threats or conditions faced by
Plaintiff “must be real and proximate,” and the danger of “serious physical injury must exist at
the time the complaint is filed.” Rittner v. Kinder, 290 F. App'x 796, 797 (6th Cir. 2008). The
allegations must sufficient to “allow a court to draw reasonable inferences that the danger
exists.” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). “Incremental
harm that culminates in a serious physical injury,” such as from failure to treat a chronic illness
or condition,” may be also sufficient to satisfy § 1915(g). Id. at 587.
Finally, under § 1915(d), the Court has discretion to appoint counsel for an indigent civil
litigant. Appointment of counsel in a civil case is not a constitutional right, but is a privilege that
is “justified only by exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 606 (6th
Cir. 1993). In making this determination, courts look to “the type of case and the abilities of the
plaintiff to represent himself,” including an assessment of the “complexity of the factual and
legal issues involved.” Id. (quotations omitted). Appointment of counsel is not appropriate
“when a pro se litigant's claims are frivolous, or when the chances of success are extremely
slim.” Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985) (citations omitted).
III.

ANALYSIS

In the Report and Recommendation (“R&R”), the Magistrate Judge found that, although
Plaintiff raised a number of issues, he failed to assert any “in terms of imminent danger.” (Doc.
6 at 2). Several issues related to Defendants’ alleged deliberate indifference to Plaintiff’s
medical needs can sometimes satisfy the requirements of § 1915(g), as the R&R acknowledges.
(Id. at 2-3). In this case, however, the Magistrate Judge concluded that Plaintiff does not allege

3

any facts which demonstrate that the requisite “serious physical injury” is imminent as a result of
Defendants’ alleged deliberate indifference. (Id. at 3). Rather, Plaintiff’s descriptions of his
ailments amount only to his “disagree[ment] with the opinions of the medical staff at his
institution.” (Id. at 4). The Magistrate Judge explained that although Plaintiff suffers from
degenerative disk and joint disease, pinched nerves, burning feet, swelling legs, severe narrowing
of the spine, and acute arthritis causing him to endure pain while walking, he also states that he
has a cane and takes pain medication two to three times a day. (Id. at 3). Further, Plaintiff
concedes that he frequently uses an inhaler, and is being treated for high cholesterol. (Id.).
In his Complaint, Plaintiff mentions only briefly that his medical records from 2010
indicate that he has a tumor and deep vein thrombosis, and that he has received no follow-up for
these conditions from the state medical director. (See Doc. 1, ¶ 7). On August 8, 2013, however,
Plaintiff sought, and was later granted, leave to file an Amended Complaint. (Doc. 9). In that
Motion, Plaintiff notified the Court of his intent to add Mr. Swakenhammer as a defendant, and
Plaintiff further alleged that he suffers from skin cancer that has been chronically treated since
1998 until 2012, when Swakenhammer allegedly ordered treatment to cease. (Id. at 2). Plaintiff
asserts that he has had over 60 positive skin cancer biopsies, and that Swakenhammer has
canceled Plaintiff’s dermatology appointments that had been previously approved to treat the
cancer. (Id.). Plaintiff repeated these allegations in his pleading captioned “Motion of
Compliance to Court Order” (Doc. 11 at 3-4).
In his Amended Complaint (Doc. 12), Plaintiff further alleged that he has been referred to
“O.S.U.” for a colonoscopy, which found evidence of cancer, but which Defendants allegedly
have failed to treat or address. (Id., ¶¶ 1-2). Plaintiff also again explained his chronic skin
cancer treatment. (Id., ¶ 4). Finally, in Plaintiff’s most recent pleading, captioned “Good Faith

4

Notice for Irreparable Harm and Imminent Injury” (Doc. 13), Plaintiff restated his early
allegations that his trust fund was “being embezzled and extorted by state officials.” (Id. at 1-2).
Some of Plaintiff’s allegations raise significant issues of “real and proximate” danger as
required under § 1915(g). Plaintiff’s additional claims that he suffers from, and has been under
long-term care for, skin cancer, which is now being denied to him, present a serious risk of harm
sufficient to “allow a court to draw reasonable inferences that the danger exists.” Vandiver, 727
F.3d at 585. Incremental harm that culminates in serious injury, such as failure to address or
treat Plaintiff’s skin cancer or positive colonoscopy results, “may present a danger equal to harm
that results from an injury that occurs all at once.” Id. at 587. Thus, for the purposes of §
1915(g), “an individual afflicted with a chronic illness that left untreated would result in serious
injury faces imminent danger when the illness is left untreated.” Id.
Accordingly, in light of the Amended Complaint, Plaintiff’s Objections to the Report and
Recommendation are well-taken and are hereby SUSTAINED.
IV.

CONCLUSION

For the reasons stated above, Plaintiff’s Objections to the Report and Recommendation
are hereby SUSTAINED. The matter is recommitted to the Magistrate Judge for assessment of a
partial filing fee, and for consideration of Plaintiff’s request for appointment of counsel.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: February 4, 2014

5