Martin v. Cook et al

Filing 6

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the motion for leave to proceed in forma pauperis re 2 be denied, and that Mr. Martin be directed to submit the entire $400.00 filing fee w/in thirty (30) days if he wishes to proceed with this action - Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 07/12/2013. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert Martin,

:
Plaintiff,

v.

: Case No. 2:13-cv-634
:

Warden Cook, et al.,
Defendants.

: JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:

REPORT AND RECOMMENDATION
Plaintiff, Robert Martin, a state prisoner who resides at
the Frazier Health Center at the Pickaway Correctional
Institution, submitted his complaint in this case to the United
States District Court for the Northern District of Ohio at Akron
on June 10, 2013. His complaint was accompanied by a motion for
leave to proceed in forma pauperis.

By order dated June 28,

2013, the case was transferred to this Court.
Mr. Martin’s motion for leave to proceed in forma pauperis
was accompanied by the required cashier’s statement from his
institution.

In the usual case, the Court would assess a partial

filing fee based on that trust fund statement.

However, as this

Court has previously noted, Mr. Martin has had three or more
cases or appeals dismissed in the past as frivolous or for
failure to state a claim on which relief can be granted.

See

Martin v. Woods, Case No. 2:12-cv-341 (S.D. Ohio), citing Martin
v. Welch, Case No. 2:10-cv-736 (S.D. Ohio); Martin v. Ohio
Supreme Court, Case No. 2:04-cv-613 (S.D. Ohio); Martin v. Mrs.
Lowery, Case No. 2:04-cv-641 (S.D. Ohio).
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 $400.00 for prisoners not granted in forma
pauperis status) at the outset of the case.
Mr. Martin raises a number of issues in his complaint but
does not assert any of them in terms of imminent danger.
However, several, but not all, of the issues Mr. Martin raises
relate to the defendants’ alleged deliberate indifference to his
medical needs.

The Sixth Circuit has 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
-2-

pains, labored breathing, choking sensations, and paralysis in
... legs and back” as a result of the denial of medication
constituted serious physical injury.
F.3d 328, 330 (7th Cir. 2003).

Ciarpaglini v. Saini, 352

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. Martin does not allege any facts which
demonstrate that his serious physical injury is imminent as a
result of defendants’ alleged indifference to his serious medical
needs.

For example, although he states that he 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 he is forced to walk
to the chow hall, legal mailroom, warden’s office, and the
infirmary, he also states that he has a cane and takes pain
killers two to three times a day.

Further, although he contends

that temperatures in his dorm reach 100 to 110 degrees and impact
his breathing because he is asthmatic and suffers from COPD and
emphysema, he states that he has an inhaler which he uses with
frequency.

He also argues that he is being treated for high

cholesterol and that he objects to this treatment but that the
defendants refuse to honor his objection.

He mentions 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.

Finally,

he contends that he has been forced to undergo blood tests, most
recently on April 30, 2013.
As noted above, Mr. Martin is housed at the Frazier Health
Center, has been seen by the medical staff, has been prescribed a
-3-

cane, an inhaler, and pain medications, and has been treated for
high cholesterol.

Consequently, the essence of Mr. Martin’s

complaint relating to his medical issues is that he disagrees
with the opinions of the medical staff at his institution.

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).
For these reasons, it is recommended that the motion for
leave to proceed in forma pauperis (Doc. 2) be denied, and that
Mr. Martin be directed to submit the entire $400.00 filing fee
within thirty days if he wishes to proceed with this action.

If

that recommendation is accepted, he should also be advised that
if he does not pay the fee, the action will be dismissed and will
not be reinstated even upon subsequent payment of the filing fee.
See McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir. 1997).
-4-

Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) 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.

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

-5-