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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

L. TUCKER,

Plaintiff, CASE NO. 15-11117

v. DISTRICT JUDGE GERSHWIN A. DRAIN

MAGISTRATE JUDGE PATRICIA T. MORRIS

KANDULSKI, et al.,

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

AND TEMPORARY RESTRAINING ORDER (Doc. 6) AND MOTION 

TO ORDER MDOC TO PRINT COPIES (Doc. 11).

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Plaintiff’s motions

(Docs. 6, 11) be DENIED, his complaint (Doc. 1) be DISMISSED WITHOUT 

PREJUDICE, and his in forma pauperis status be REVOKED.

II. REPORT

A. Introduction

Plaintiff L. T. Tucker, Jr., also known as Kitwana Omari Mbwana, is a state prisoner 

who is currently incarcerated by the Michigan Department of Corrections (“MDOC”). On 

March 23, 2015, Plaintiff filed a pro se civil rights complaint alleging that his constitutional 

rights were violated through the denial of necessary medical care. (Doc. 1). Plaintiff names 

five Defendants, Dr. Gerlach, Spitter, Behler, members of the pain management committee, 

Kandulski, three John/Jane Doe defendants and Corizon, Inc., which provides the MDOC with 

medical services on a contractual basis. (Id.). Plaintiff alleges that Defendants denied him 

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necessary medication to treat the pain he experiences as a result of his “diabetic-peripheral 

neuropathy (‘nerve damage’) to the feet, legs, etc.” (Id. at Page ID 2, 17-21). Plaintiff’s request

to proceed in forma pauperis was granted on May 14, 2015 (Doc. 7). On July 20, 2015, U.S. 

District Judge Gershwin A. Drain referred Plaintiff’s instant motions to the undersigned 

magistrate judge. (Doc. 14). 

B. Background and Governing Law

On May 4, 2015, Plaintiff moved for a temporary restraining order and preliminary 

injunction “to ensure plaintiff Tucker, received proper medical care.” (Doc. 6, Ex. 1 at PgID

1). Specifically, Plaintiff notes that he “is experiencing continued pain, bleeding, swelling, 

redness, inflammation, various ulcer eroded sores to the toes [on his] right foot, and 

inflammation, limited motion and cannot walk properly.” (Id. at 2). Plaintiff characterizes this 

as the “deni[al of] care for a serious chronic illness contrary to an [sic] need for medical care.” 

(Id. at 3). He further asserts that he “may never walk normally again” if he does not receive 

necessary medical care (id. at 4), and may also require amputation of his lower extremities (id. 

at 5). 

On June 12, 2015, Plaintiff filed an additional motion requesting that the Court order the 

MDOC to “direct[ the] Michigan Department of Corrections to make [7] seven copies of the 

herein complaint and exhibits to be serve [sic] on defendants’s [sic]. (Doc. 11 at 1). In that 

motion, Plaintiff asserts that “he don’t [sic] know if the court is going to issue a [sic] order 

directing Michigan department of corrections, to allow plaintiff Tucker, to be provided with 

additional copies of the complaint,” though he does not establish whether or why he is unable 

to acquire such copies himself. (Id. at 3). 

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However, the Court finds that it need not consider these motions, because the “Three 

Strikes” provision of 28 U.S.C. § 1915(g) bars Tucker’s action. That statute provides that a 

prisoner may not

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.

Id. Plaintiff admits that he “falls under the three-strike rule due to his having filed more than 

three [non-meritorious] civil actions in federal courts,” but contends that he is exempted from 

this restriction because he is “under immediate danger of serious physical injury,” in that he 

may experience the following harm if he is not granted relief: 

(1) The worsening of extreme and intense continuous pain to his toes 

in his right foot and right leg, (2) various ulcer eroded sores to the 

toes in his right foot, (3) swelling, redness, infection, and 

spontaneous bleeding to his toes in [sic] his right foot, (4) 

deterioration from lack of treatment for the serious condition of 

having diabetic peripheral neuropathy (“nerve damage”), (5) being 

more susceptible to prolong certain serious illnesses such as the 

continuous extreme pain that Plaintiff Tucker has been experiencing 

for the last two plus years, (6) sleep deprivation caused by the 

extreme pain in his feet and legs, (7) pain and more pain), (8) serious 

risk of amputation to Plaintiff Tucker’s toes, foot, or legs.” 

(Doc. 1 at PgID 16-17). 

C. Analysis

While Plaintiff admits that he is subject to the three strikes provision of 28 U.S.C. § 

1915(g), the Court will independently analyze his litigation history to ensure that he is in fact 

barred from filing by that provision. On June 7, 2011, the Sixth Circuit Court of Appeals 

issued an order in Tucker v. McCauley, in which it found that “Tucker has had more than three 

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previous complaints dismissed by federal courts as frivolous and he has failed to show that he 

is in ‘imminent danger of serious physical injury,’” and thus found that he was barred from 

filing his complaint in forma pauperis. No. 10-2204, slip op. at 2 (6th Cir. Jul. 6, 2011). The 

district court in that matter also found that Plaintiff was barred from filing in forma pauperis

by the three strikes provision, noting that his complaints had been dismissed for reasons of 

frivolity or failure to state a claim in the following matters: “Tucker v. Chopin, No. 94–100, 

slip op. (W.D. Mich. June 30, 1994); Tucker v. Kinney, No. 94–101, slip op. (W.D. Mich. June 

30, 1994); Tucker v. Hembree, No. 94–105 (W.D. Mich. July 15, 1994); Percival v. Williams, 

No. 00–849 (W.D. Mich. Nov. 29, 2000).” Tucker v. McCauley, No. 09-12757, 2010 WL 

2884641, at *1 (E.D. Mich. July 20, 2010). That court also found that, as of the time of its 

decision in July 2010, Plaintiff had been denied leave to file in forma pauperis in three other 

matters where he was also found to have exceeded his three strike limit. Id. The Court thus 

finds that Plaintiff meets the three strikes provision of 28 U.S.C. § 1915(g), and may not file in 

forma pauperis unless he is under imminent danger of serious physical injury. 

Plaintiff’s assertion that he faces imminent danger of serious physical injury is difficult 

to square with his factual allegations relating to the medical care he has been denied. The vast 

majority of Plaintiff’s complaint revolves around the alleged denial of certain pain medications 

to treat his peripheral neuropathy. Plaintiff alleges that Defendant Spitter, a physician’s 

assistant at the E.C. Brooks Correctional Facility, denied him pain medication on May 4, 2012 

(Doc. 1 at ¶21); that he was transferred to the Bellamy Creek Correctional Facility, and 

immediately “sent in several health care requests . . . seeking pain medication,” but that he was 

rebuffed by Defendant Behler, a physician’s assistant, who after much cajoling finally agreed 

to seek approval from the pain management committee to prescribe the pain medication 

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Neurontin on April 29, 2014 (Id. at ¶¶22-23, 25, 29); that he was transferred to the Saginaw 

Correctional Facility, where Defendant Kandulski, presumably a physician at that location, 

recommended using Tylenol and Motrin to control his pain (Id. at ¶¶43, 50); and that on 

August 27, 2014, the pain management committee and Defendant Corizon denied Defendant 

Behler’s medication request, and that Defendant Kandulski offered the pain medication Mobic 

(Id. at ¶¶55, 57). 

Plaintiff’s only reference to the denial of any medical care whatsoever other than pain 

medication occurs in the “Imminent Danger” section of his complaint, in which he attempts to 

paint a far more expansive picture of the medical care he has been denied. (Doc. 1 at ¶¶83-84). 

There, he asserts that he is suffering not merely pain, but also a variety of conditions including 

ulcers, redness, swelling, infection, bleeding, sleep deprivation, and possible amputation. (Id.). 

These assertions find no support in Plaintiff’s factual allegations; nowhere does he assert that 

he has been denied medical treatment for his ulcers, bleeding, or other physical manifestations 

of his leg ailments. Merely experiencing an ailment does not give rise to a constitutional 

violation; a cause of action arises when a prisoner is denied adequate medical treatment in the 

face of such an ailment. See West v. Atkins, 487 U.S. 42, 54 (U.S. 1988); Lewis v. Turner, 16 F. 

App’x 302, 303 (6th Cir. 2001). Because Plaintiff’s assertion that he has been denied adequate 

medical treatment for his non-pain symptoms is conclusory and wholly unsupported by the 

allegations in his complaint, Plaintiff’s imminent danger argument must rest solely upon his 

assertion that his pain is itself an imminent danger of serious physical injury. 

Assuming that allegations of pain alone can satisfy the imminent danger exception, 

Plaintiff has nevertheless failed to set forth facts which support a finding of imminent danger 

of serious physical injury. Plaintiff concedes that Defendants have attempted to treat his pain 

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with the use of Motrin and Tylenol, Neurontin, and Mobic. (Id. at (Doc. 1 at ¶¶29, 50, 57).

However, Plaintiff attempts to demonstrate that these medications are equivalent to no 

treatment at all. Regarding the use of Motrin and Tylenol, Plaintiff alleges that he informed 

Defendant Kandulski that “these medications had been tried as well as other over the counter 

pain relievers and that none worked at relieving the pain” (Id. at ¶50), and that “Tylenol and 

Motrin cause seizures if taken longer than two few [sic] weeks” (Id. at ¶51). Plaintiff also 

alleges that he experiences a “seizure disorder when Tylenol or Motrin are taken for any 

prolonged time (2-3 months)” (id. at ¶68), though he points to no support for this assertion.

With regard to Neurontin, Plaintiff alleges that Defendant Behler sought approval for that 

medication (id. at ¶29), but the pain management committee rejected that request (id. at ¶55). 

These allegations exculpate Defendant Behler of potential liability for failing to prescribe pain 

medication where it was necessary, but do not resolve Plaintiff’s complaints of pain. 

Plaintiff’s allegations regarding the use of Mobic, however, are fatal to his assertion that 

his pain presents an imminent danger of serious physical injury. Plaintiff alleges that he 

refused Defendant Kandulski’s offer of a Mobic prescription because that drug “would have 

caused adverse side effects and allergic reactions including, but not limited to, hives, difficulty 

breathing, swelling of the face, lips, tongue or throat, chest pains, weakness, shortness of 

breath, slurred speech, problems with vision or balance, black, bloody, or tarry stools [sic], and 

coughing up blood or vomit that looks like coffee grounds.” (Doc. 1 at ¶63). Plaintiff further 

alleges that “Defendant Kandulski is trying to cover up his deliberate indifference by carrying 

out his adopted policy of experimentation by using Plaintiff Tucker’s serious medical need for 

a human sacrifice” (id. at ¶67), and that “Defendant Kandulski’s prescription of Mobic would 

cause . . . serious adverse effects, such as allergic reaction, due to the other medications 

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Plaintiff Tucker is prescribed, such as Vasotec, Entaphil [sic], Aspirin, Cotrin [sic], 

Glucophage, Humulin, Novilin [sic], and Insulin Umunisuphane [sic] Injections” (id. at ¶69). 

As proof of these asserted adverse reactions, Plaintiff provides a medication reference sheet 

from www.drugs.com which states that one “should not use Mobic if you are allergic to 

meloxicam, or if you have a history of allergic reaction to aspirin or other NSAIDs,” and that 

one should “tell your doctor if you have . . . heart disease . . . high blood pressure . . . [or] a 

seizure disorder such as epilepsy.” (Id., Ex. 1 at PgID 27). Plaintiff also notes that he “had a 

conversation with another diabetic prisoner who claimed that he used to take Mobic for 

diabetic peripheral neuropathy but that a health care provider took him off because Mobic is 

not to be used for this purpose.” (Id. at ¶72). 

From this limited data and his layperson’s understanding of medicine, Plaintiff draws 

the unreasonable conclusion that Mobic would cause him to experience serious side effects, 

and the outlandish deduction that Defendant Kandulski is conducting “human 

experimentation.” Plaintiff has provided no reason to believe that Defendant Kandulski is 

incompetent or has sought to harm him by administering improper medication, and thus no 

reason to believe that Mobic would be unsuitable to treat his pain. Further, the fact that Mobic 

could interact with Plaintiff’s other medications, and could cause certain side effects, does not 

mean that Plaintiff is likely to actually suffer such negative effects; these are factors which any 

competent medical professional, including Defendant Kandulski, would take into account 

before prescribing medication. 

Moreover, nearly all medications carry some risk of side effects, thus Plaintiff’s fear 

that he may experience some side effects as a result of taking Mobic is not a reasonable ground

to reject that medication. See Williams v. Great Am. Ins. Co., No. 11-03083-CV-S-JTM, 2012 

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WL 5197977, at *5 (W.D. Mo. Oct. 19, 2012). While Plaintiff may not prefer the particular 

course of treatment which he has been offered, he has fallen far short of demonstrating that he 

is under an immediate risk of serious physical harm. See Gresham v. Czop, No. 1:12-CV-494, 

2012 WL 2317558, at *5 (W.D. Mich. June 18, 2012) (holding that “there is no indication that 

any of these conditions present an imminent danger of serious physical injury. Plaintiff has 

suffered with and been treated for these conditions over lengthy periods of time. . . . Although 

Plaintiff disagrees with the course of the medical treatment and insists that surgery is required 

for one or more condition, no basis exists for concluding that he is in imminent danger of 

serious physical injury from any of these conditions.”); Rittner v. Weidman, No. 2:11-CV0826, 2011 WL 4712008, at *3 (S.D. Ohio Oct. 6, 2011) (collecting cases in which courts 

found that a prisoner who has been provided with medical treatment but merely disagrees with 

the treatment methods he has been provided cannot support a finding that they are under 

imminent danger of serious physical harm); Murray v. Frontera, No. 2:08-CV-167, 2009 WL 

37181, at *2 (W.D. Mich. Jan. 7, 2009) (holding that a prisoner’s assertion that his back pain 

was not being addressed did not establish that he was under imminent danger of serious 

physical injury). 

Because Plaintiff has failed to demonstrate that he is in imminent danger of serious 

physical harm, and because his in forma pauperis complaint violates the “three strikes” 

provision of 28 U.S.C. 1915(g), his complaint should be dismissed without prejudice, and his 

in forma pauperis status should be revoked. See Shabazz v. Campbell, 12 F. App’x 329 (6th 

Cir. 2001) (holding that dismissal for violation of the § 1915 three strikes provision should be 

without prejudice).

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Given that Plaintiff’s complaint should be dismissed, his motion for a temporary 

restraining order and preliminary injunction (Doc. 6), and his motion for an order directing 

MDOC to produce copies of his complaint (Doc. 11) are moot, and should be denied. 

Further, as discussed above, the Court finds that Plaintiff has made a habit of repeatedly 

filing frivolous complaints, and has not been deterred from filing barred actions despite 

acquiring three strikes. Plaintiff is cautioned that if he continues to file frivolous complaints, 

the court could find that the imposition of a pre-filing injunction is appropriate, which would 

mandate that he seek and receive a court order authorizing the filing of any future lawsuits. See 

Scott v. Bradford, No. 13-12781, 2014 WL 6675354, at *4 (E.D. Mich. Nov. 25, 2014) (setting 

forth the factors involved in determining whether a pre-filing injunction is appropriate, and 

collecting cases applying those factors). 

D. Conclusion

For the foregoing reasons, the Court RECOMMENDS that Plaintiff’s complaint (Doc. 

1) be dismissed without prejudice, his in forma pauperis status be REVOKED, his motion for 

a temporary restraining order and preliminary injunction (Doc. 6) be DENIED AS MOOT, 

and his motion for an order directing MDOC to produce copies of his complaint (Doc. 11) be 

DENIED AS MOOT.

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days after 

being served with a copy of the recommended disposition, a party may serve and file specific 

written objections to the proposed findings and recommendations. A party may respond to 

another party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 

72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver 

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of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950

(6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, 

will not preserve all the objections a party may have to this Report and Recommendation. 

Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit 

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). According to 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 No. 1,” “Objection No. 2,” etc. Any 

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

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in 

the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: August 11, 2015 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also 

sent to L. Tucker #132271 at Alger Maximum Correctional Facility, N6141 Industrial Park 

Drive, Munising, MI 49862.

Date: August 11, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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