Martin v. HFC et al
Filing
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OPINION AND ORDER re 1 Motion for Leave to Proceed in forma pauperis filed by Robert Martin. Application for Leave to Proceed without Prepayment of Fees or Costs that complies with the PLRA, due within thirty (30) days. Plaintiff's request t hat counsel be appointed for him is DENIED without prejudice to renewal at a later stage of the proceedings. Signed by Magistrate Judge Norah McCann King on 6/24/2015. (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
ROBERT MARTIN,
Plaintiff,
vs.
Case No. 2:15-cv-2435
Judge Smith
Magistrate Judge King
HFC, et al.,
Defendants.
OPINION AND ORDER
Plaintiff, a state prisoner, seeks to bring a civil action in
this Court without payment of fees or costs. However, the records of
this Court reflect that plaintiff has, on three or more occasions
while he has been imprisoned, brought an action or an appeal that was
dismissed as frivolous or for failure to state a claim on which relief
can be granted.
See, e.g., Martin v. Welch, 2:10-cv-736 (S.D. Ohio
Dec. 30, 2010); Martin v. Ohio Supreme Court, 2:04-cv-613 (S.D. Ohio
Nov. 4, 2004), aff’d Case No. 05-3388 (6th Cir. Sept. 27, 2005); Martin
v. Mrs. Lowery, 2:04-cv-641 (S.D. Ohio Jan. 26, 2005); Martin v.
Lowery, 2:04-cv-704 (S.D. Ohio Jan. 26, 2005). Under the “three
strikes” provision of the Prison Litigation Reform Act (“PLRA”),
plaintiff can proceed in forma pauperis only 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 conditions complained of must
be real and proximate, and that the danger of serious physical injury
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must exist 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 for the exception to §1915(g). Freeman v.
Collins, 2011 WL 1397594, *6 (S.D. Ohio Apr. 12, 2011).
Plaintiff’s tendered Complaint, ECF 1-1, alleges that he has been
diagnosed with degenerative disc disease, severe narrowing of the
spine, three herniated discs, arthritis, and cardiovascular disease.
Complaint, ¶ 3. Ultram and Neurontin were prescribed for him until
October 2014. Id. In October 2014, plaintiff alleges, defendant Dr.
Harlan discontinued Ultram “arbitrarily” and “without justifiable
medical reason . . . .” Id. at ¶ 5. Dr. Harlan renewed plaintiff’s
prescription for Neurontin, id., ¶ 6, but in June 2015, defendants
Hudson and Gardner – who are not doctors - discontinued that
medication “without any jurisdiction to do so.” Id., at ¶7. Plaintiff
asserts claims under the Eighth Amendment for denial of medical care,
breach of patient confidentiality, and invasion of privacy. Plaintiff
specifically alleges that the discontinuation of prescribed medication
for his chronic pain “is likely to cause serious needless suffering
showing an unreasonable risk to serious damage to Martin’s future
health pain and needless suffering.” Id. at ¶12 [sic].
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This Court concludes that the Complaint sufficiently alleges
“imminent danger of serious physical injury” to overcome the “three
strikes” provision of the PLRA, 28 U.S.C. § 1915(g). Plaintiff may
therefore seek leave to proceed in forma pauperis under these
circumstances. Id.
However, plaintiff’s motion for leave to proceed in forma
pauperis is not accompanied by the required trust fund statement from
his institution. See 28 U.S.C. § 1915(a)(2). Although plaintiff
insists that he need not, under state and federal law, comply with the
requirements of the PLRA in this regard, plaintiff has been advised on
a number of prior occasions that he is mistaken. See, e.g., Martin v.
Lowery, Case No. 05-3258 (6th Cir. Sept. 30, 2005); Martin v. Woods,
2:12-cv-341, Report and Recommendation (S.D. Ohio July 2, 2012).
If plaintiff intends to pursue his motion for leave to proceed in
forma pauperis, he must provide, within thirty (30) days, an
application for leave to proceed without prepayment of fees or costs
that complies with the PLRA; in particular, plaintiff must submit the
required executed trust fund statement from his institution. See 28
U.S.C. § 1915(a)(2). Plaintiff’s failure to do so will result in the
denial of leave to proceed in forma pauperis.
Plaintiff’s request that counsel be appointed for him is DENIED
without prejudice to renewal at a later stage of the proceedings.
June 24, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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