Anderson v. Toledo Correctional Center Medical Dept. et al

Filing 44

REPORT AND RECOMMENDATIONS re 26 MOTION to Vacate 5 Order on Motion for Leave to Proceed in forma pauperis. It is RECOMMENDED that Defendants' Motion be granted and that the grant of in forma pauperis status be vacated. It is FURTHER RECOMMENDED that plaintiff be required to pay the entire $400.00 filing fee within thirty (30) days. Objections to R&R due by 1/28/2016. Signed by Magistrate Judge Norah McCann King on 1/11/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

BENNIE ANDERSON,
Plaintiff,
vs.

Civil Action 2:15-cv-728
Judge Graham
Magistrate Judge King

TOLEDO CORRECTIONAL CENTER
MEDICAL DEPT., et al.,
Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate currently incarcerated in the Toledo
Correctional Institution (“ToCI”), brings this civil rights action
under 42 U.S.C. § 1983. At the outset of the case, plaintiff sought
leave to proceed in forma pauperis, in which he stated, under penalty
of perjury, that he had not brought an action that was dismissed on
the grounds that it was frivolous, malicious, or failed to state a
claim upon which relief may be granted. Application and Affidavit by
Incarcerated Person to Proceed without Prepayment of Fees, ECF No. 1,
PAGEID# 4. That application was granted by the Court. Order, ECF No.
5. This matter is now before the Court on Defendants’ Motion to Vacate
Order Granting Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis (Doc. 5), ECF No. 26 (“Motion to Vacate”).
The Amended Complaint, ECF No. 8, complains of various aspects of
care at ToCI.

Plaintiff first alleges that, in September 2014, he

suffered a fractured hip as a result of a fall at ToCI and that,

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although x-rays have been taken, final approval for recommended
treatment “had to come from the Columbus Office (i.e., O.D.R.C.) and
that O.D.R.C. had cut back on treating prisoners, because of budget
cuts.” Id. at PAGEID# 42. Plaintiff also alleges that a nurse
practitioner “ordered milk to compensate for [his] vitamin D
de[ficiency],” but that a dietitian “refused to order the extra milk.
. . .” Id. at PAGEID# 42, 43. Moreover, although plaintiff’s eyeglass
prescription had changed in December 2014, he was advised that
eyeglasses could be replaced only every four years because of budget
cuts. However, plaintiff also learned from “some white prisoners” that
“their eye-glasses [were] replaced as needed.” Id. at PAGEID# 43.
Finally, plaintiff alleges that, although a prison dentist provides
antibiotics, “he cannot fix my cracked and exposed root on my teeth,
once again his excuse is budget cuts.” Id. at PAGEID# 43. The Amended
Complaint also appears to challenge the basis of plaintiff’s current
confinement, id. at PAGEID# 45-46, as well as alleged adverse
consequences suffered by inmates who refuse to sign a certain
document. Id. at PAGEID 46. The Amended Complaint seeks monetary
damages and the prosecution of defendants. Id. at PAGEID 47.
In the Motion to Vacate, defendants represent that plaintiff has,
while incarcerated, filed at least three lawsuits that were dismissed
as frivolous or for failure to state a claim for relief. See Bennie
Anderson v. Janet Burnside, Judge, 1:05-cv-2718 (N.D. Ohio Dec. 22,
2005); Bennie Anderson v. Robert Gentry, et al., 1:03-cv-00140 (N.D.
Ohio Apr. 3, 2003); Bennie Anderson v. Louis Brodnik, et al., 1:87-cv-

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2531 (N.D. Ohio May 31, 1988), aff’d 887 F.2d 265 (6th Cir. 1989).
The Prison Litigation Reform Act (“PLRA”) contains numerous
provisions governing litigation by prisoners in federal courts.

With

respect to the statute governing in forma pauperis status, the “three
strikes” provision states:
In no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior 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 grounds 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.
28 U.S.C. § 1915(g).

The “three strikes” provision applies to cases

that were dismissed even prior to the effective date of the PLRA.
Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998).

Moreover, in forma

pauperis status is a privilege and may be revoked if misused.
Consequently, the Court may consider the issue of whether the three
strikes provision applies even after an earlier grant of in forma
pauperis status.

See Simpson v. Correctional Medical Services, Inc.,

2009 WL 2920789 (W.D. Mich. September 10, 2009); Reeves v. Wilkinson,
No. 06-10326, 2007 WL 3037705 at *5 (E.D. Mich. Oct. 17, 2007).
Although plaintiff disagrees with some of the prior dismissals
noted in the Motion to Vacate, see Plaintiffs’ Motion in Opposition to
Defendants Motion to Vacate Order Granting Plaintiffs’ Pauperis
Status, ECF No. 35, plaintiff does not appear to dispute the essential
fact that he has, while incarcerated, filed at least three lawsuits
that were dismissed as frivolous or for failure to state a claim for

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relief. Id.
Plaintiff does, however, make passing reference to “imminent
danger of serious physical injury . . . .” Id. at PAGEID# 251.
Plaintiff specifically states that “defendants have had [him] walking
around, for nearly a year on a broken hip, that even the doctors and
nur[s]es at this place admit, is constantly growing worst.” Id. [sic].
He also acknowledges that he has been provided treatment for the hip
condition, including medication and shots for swelling, “psych meds”
for pain, and an elevator pass, although he complains that the
treatment is inadequate. Id. at PAGEID# 251-52.
An inmate otherwise denied in forma pauperis status because of
the “three strikes provision” of the PLRA may nevertheless proceed
without prepayment of fees or costs if he demonstrates that he is
“under imminent danger of serious physical injury.” 28 U.S.C. §
1915(g). In order to make such a demonstration, the prisoner must
allege and persuade the court that the condition complained of is real
and proximate, and that the danger of serious physical injury exists
at the time the complaint is filed. Tucker v. Pentrich, 483 Fed. Appx.
28, 30 (6th Cir. 2012); Rittner v. Kinder, 290 Fed. Appx. 796, 797 (6th
Cir. 2008). An allegation that failure to treat a chronic illness or
condition resulting in “incremental harm that culminates in a serious
physical injury” may be sufficient. Vandiver v. Prison Health Servs.,
Inc., 727 F.3d 580, 585 (6th Cir. 2013). The denial of medication to
treat severe chronic pain has been found to be sufficient to qualify

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for the exception to §1915(g). Freeman v. Collins, 2011 WL 1397594, *6
(S.D. Ohio Apr. 12, 2011).
This Court concludes that plaintiff has not alleged facts that
would support a finding of imminent danger of serious physical injury.
By his own statements, plaintiff has been “walking around for nearly a
year,” and has received treatment for his hip condition, including
treatment for swelling and pain. Although he argues that the treatment
is inadequate, under the facts presented, the Court concludes that
plaintiff has not alleged a denial of treatment that is tantamount to
“incremental harm that culminates in a serious physical injury.” See
Vandiver v. Prison Health Servs., Inc., 727 F.3d at 585.
The Court therefore concludes that the “three strikes provision”
of the PLRA, 28 U.S.C. § 1915(g), requires that the grant of in forma
pauperis status to plaintiff be vacated.
Plaintiff seems to agree with this conclusion because he
indicates that he “is willing to pay this courts filing fee. I just
don’t have $400.00, at this time.” Motion in Opposition to Defendants
Motion to Revolk Plaintiffs Pauper Status: Addendum, ECF No. 42,
PAGEID# 296 [sic].

To the extent that plaintiff asks that payment of

the full filing fee be deferred, the Court lacks authority to grant
that request. The grant of in forma pauperis status to an inmate is
not a waiver of the filing fee; the grant merely waives prepayment of
the full filing fee and establishes a deferred payment plan. See 28
U.S.C. § 1915(b). Where, as here, in forma pauperis status is denied

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an inmate, the inmate must make payment of the full filing fee without
delay or deferral.
It is therefore RECOMMENDED that Defendants’ Motion to Vacate
Order Granting Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis (Doc. 5), ECF No. 26, be granted and that the grant of in
forma pauperis status be vacated. It is FURTHER RECOMMENDED that
plaintiff be required to pay the entire $400.00 filing fee within
thirty (30) days. His failure to do so may result in the dismissal of
the action for failure to prosecute.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

6

judge’s
ability

recommendations
to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

January 11, 2016

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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to