UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD CROWELL,

Plaintiff,

 Case No. 15-10690 

v. District Judge Arthur J. Tarnow

 Magistrate Judge R. Steven Whalen

BADAWI ABDELLATIF,

Defendant.

___________________________________/

REPORT AND RECOMMENDATION

On February 23, 2015, Plaintiff Richard K. Cromwell (“Plaintiff”), a Michigan

Department of Corrections (“MDOC”) inmate currently housed at the Macomb

Correctional Facility, filed a pro se civil complaint pursuant to 42 U.S.C. § 1983. Before

the Court is Defendant Badawi Abdellatif’s (“Defendant’s”) Motion to Revoke Plaintiff’s

In Forma Pauperis Status and to Dismiss [Doc. #20], which has been referred for a Report

and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed

below, I recommend that the motion be DENIED.

I. FACTS

In his complaint, Plaintiff alleges that he has been and continues to be denied

medical care for his long-standing and serious conditions, which he enumerates as “(1)

severe chronic pain stemming from spinal stenosis, osteoarthritis, bone spurring,

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degenerative disc disease, painful tumors, untreated irritable bowels syndrome and

mistreated gastrointestinal disease, (2) delayed sleep syndrome, sleep apnea, restless leg

syndrome, (3) painful tumors, (4) irritable bowel syndrome, (5) gastrointestinal disease.”

Complaint [Doc. #1], pg. 5, ¶ 3 (Affidavit). 

On March 18, 2015, Plaintiff was granted leave to proceed in forma pauperis

(“IFP”), without prepaying fees or costs [Doc. #4]. On May 22, 2015, Defendant filed the

present motion to revoke IFP status and to dismiss pursuant to § 1915(g) and Fed. R.

Civ.P. 12(b)(1), based on Plaintiff having had three prior complaints dismissed for failure

to state a claim. Those three cases are Crowell v. Richard Snyder, Case No. 14-216 (W.D.

Mich November 19, 2014); Crowell v. State of Michigan, et al., Case No. 14-198 (W.D.

Mich. October 10, 2014); and Kevin King, Richard Cromwell, et al. v. Mary Berghuis, et

al., Case No. 10-57 (W.D. Mich. February 13, 2010). Plaintiff does not dispute that the

complaints in these three cases were dismissed, but states that two of the cases are pending

on appeal to the Sixth Circuit.

II. LEGAL PRINCIPLES

28 U.S.C. § 1915(g) provides as follows:

“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.” 

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To fall within the “imminent danger” exception to the statute, “the threat or prison

condition ‘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 Fed.Appx. 796, 797 (6 Cir. th

2008), quoting Ciarpaglini v. Saini, 352 F.3d 328, 330 (7 Cir. 2003). In other words, “the th

imminent danger must be contemporaneous with the complaint’s filing.” Gresham v.

Jenkins, 2015 WL 3403942, *3 (E.D. Mich. 2015), citing Vandiver v. Vasbinder, 416

Fed.Appx. 560, 562 (6thCir. 2011). In Vandiver v. Prison Health Services, Inc., 727 F.3d

580, 587 (6 Cir. 2013), the Sixth Circuit held that “a plaintiff who alleges a danger of th

serious harm due to a failure to treat a chronic illness or condition satisfies the imminentdanger exception under § 1915(g)....”

III. DISCUSSION

Plaintiff posits three reasons why the Court should deny Defendant’s motion to

revoke his IFP status: (1) a dismissed case cannot be considered a “strike” while it is

pending on appeal; (2) even if he has three strikes, he continues to be in imminent danger;

and (3) § 1915(g) is unconstitutional.

Arguments (1) and (3) are easily disposed of. In Coleman v. Tollefson, 733 F.3d

175, 177-78 (6 Cir. 2013), the Court held that a prior, dismissed case counts as a strike th

notwithstanding that it is pending on appeal. And in Wilson v. Yaklich, 148 F.3d 596, 602- 1

606 (6 Cir. 1998), cert. den. 525 U.S. 1139 (1999), the Sixth Circuit upheld the th

 In so holding, the Sixth Circuit rejected contrary opinions from the Fourth, Fifth, 1

Eighth, and Tenth Circuits. Id. at 178.

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constitutionality of § 1915(g), rejecting claims that the statute violated the due process,

equal protection, ex post facto, and bill of attainder provisions of the constitution.

Plaintiff’s second argument–that he faces imminent danger as of the filing of the

complaint–is more substantial. In his complaint, he clearly alleges that he continues to be

denied treatment for chronic pain caused by various spinal conditions, including bone

spurring, spinal stenosis, and degenerative disc disease. He thus alleges ongoing denial of

treatment, not merely past inattention to his medical conditions. Vandiver v. Prison Health

Services, supra. In addition, “a medical need may be serious if it causes pain.” Cooper v.

Casey, 97 F.3d 914, 916-17 (7th Cir.1996). In Harris v. Beard, 2007 WL 404042, *2

(M.D.Pa. 2007), the plaintiff alleged chronic pain due to back or spine maladies.

Notwithstanding its use of double negatives, the court declined to apply § 1915(g), stating,

“Based upon the allegations as set forth, it cannot be found that Plaintiff is not under

imminent danger of serious physical injury.” In Freeman v. Collins, 2011 WL 1397594, *6

(S.D. Ohio 2011), the court rejected a three-strikes challenge where the plaintiff alleged

that he suffered from continuing “severe/chronic neck, chest, and shoulder pain,” and was

denied an increase in his pain medication. See also Ciarpaglini, 352 F.3d at 330 (“[H]eart

palpitations, chest pains, labored breathing, choking sensations, and paralysis in ... legs

and back” resulting from a denial of medication were serious physical injury).

I conclude that an allegation of untreated severe and chronic pain stemming from

an underlying medical condition, including spinal pathology, sufficiently states a claim of

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“imminent danger of serious physical injury” for purposes of § 1915(g). In this case,

Plaintiff’s complaint establishes that claim, and he therefore falls within the exception to

the three-strikes rule.

IV. CONCLUSION

I recommend that Defendant’s Motion to Revoke Plaintiff’s In Forma Pauperis

Status and to Dismiss [Doc. #20] be DENIED.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v Walters, 638 th

F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise th

others with specificity will not preserve all the objections a party might have to this Report

and Recommendation. Willis v Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith th

v Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to th

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc.; any

objection must recite precisely the provision of this Report and Recommendation to which

it pertains. Not later than fourteen (14) days after service of an objection, the opposing

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party must file a concise response proportionate to the objections in length and 

complexity. The response must specifically address each issue raised in the objections, in

the same order and labeled ad “Response to Objection #1,” “Response to Objection #2,”

etc.

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: June 15, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on June 15, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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