Martin v. Harlan, D.O. et al

Filing 2

REPORT AND RECOMMENDATION that 1 MOTION for Leave to Proceed in forma pauperis filed by Robert Martin be denied, and that Plaintiff be directed to submit the entire $400 filing fee within thirty (30) days if he wishes to proceed with this action. Objections due within fourteen (14) days of the date of this report. Signed by Magistrate Judge Terence P Kemp on 9/19/2014. (agm1)

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

:
Plaintiff,

v.

: Case No. 2:14-cv-1553
:

Doctor Harlan, D.O., et al.,
Defendants.

: JUDGE GREGORY L. FROST
Magistrate Judge Kemp
:

REPORT AND RECOMMENDATION
Plaintiff, Robert Martin, a state prisoner who resides at
the Hocking Correctional Facility, submitted his complaint in
this case on September 15, 2014.

His complaint was accompanied

by a motion for leave to proceed in forma pauperis.

That motion

was not accompanied by the required trust fund statement from his
institution.

Ordinarily, the Court would direct Mr. Martin to

provide a trust fund statement in order to allow the Court to
consider whether to assess a partial filing fee based on that
statement.
However, 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-cv641 (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 several issues in his complaint but does
not assert any of them in terms of imminent danger.

Most, but

not all, of the issues Mr. Martin raises relate to the
defendants’ alleged deliberate indifference to his medical needs.
All of these issues appear to have arisen upon Mr. Martin’s
transfer to the Hocking Correctional Facility in August, 2014.
The bulk of Mr. Martin’s complaint appears to arise from his
belief that Dr. Harlan is treating certain medical conditions
differently than doctors in other institutions had.
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); see also

Vandiver v.

Prison Health Services, Inc., 727 F.3d 580, 587 (6th Cir.
2013)(an individual afflicted with a chronic illness that left
untreated would result in a serious injury faces imminent danger
when the illness is left untreated).

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
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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. 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 asserts that his long-sleeved

shirts and wide brim hat have been confiscated and that these
items were prescribed for him because of his skin cancer
diagnosis, he does not explain how the alleged lack of these
items will result in his harm.

Further, he contends that his

pain medication has been “cancelled” while also asserting that
his pain medication is being crushed against proper medical
standards.

Again, he does not allege the nature of any harm.

Finally, he states that his Zantac has been discontinued and he
has been directed by Dr. Harlan to purchase other ulcer
medication.

With respect to this claim, Mr. Martin asserts that

requiring him to pay for a drug to treat a medical condition
which “could lead to fatal, pain and suffering or more serious
results” is inconsistent with a chief inspector’s decision.
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Beyond this speculative assertion, he makes no allegation of
harm.
Taking all of the above into account, 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 new
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. 1) 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.
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See McGore v. Wrigglesworth, 114 F.3d 601, 609 (6th Cir. 1997).
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

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