IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Daniel L. Rittner, Sr., :

 

Plaintiff, :

 

v. : Case No. 2:11-cv-0826 

 

Paul Weidman, et al., : JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

Defendants. :

 

OPINION AND ORDER

This matter is before the Court on Plaintiff Daniel L.

Rittner, Sr.’s objections to a Report and Recommendation issued

by the Magistrate Judge on October 6, 2011. The Court, having

reviewed the record de novo, finds for the reasons set out below

that the objections to the Report and Recommendation are without

merit. Mr. Rittner’s objections are OVERRULED and the Report and

Recommendation is ADOPTED. 

I. 

When objections are received to a Magistrate Judge’s Report

and Recommendation on a dispositive matter, the assigned District

Judge “shall make a de novo determination ... of any portion of

the magistrate judge’s disposition to which specific written

objection has been made ....” Fed. R. Civ. P. 72(b). After

review, the District Judge “may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the

matter to the magistrate judge with instructions.” Id.; see also

28 U.S.C. §636(b)(1)(B). General objections are insufficient to

preserve any issues for review; “[a] general objection to the

entirety of the magistrate's report has the same effects as would

a failure to object.” Howard v. Secretary of Health and Human

Services, 932 F.2d 505, 509 (6th Cir. 1991). 

II. 

Case: 2:11-cv-00826-JLG-TPK Doc #: 12 Filed: 02/24/12 Page: 1 of 5 PAGEID #: <pageID>
In the Report and Recommendation, the Magistrate Judge

recommended that Mr. Rittner’s motion to proceed in forma

pauperis (#1) be denied and that he be required to pay the entire

$350.00 filing fee because he is subject to the “three-strikes”

rule under 28 U.S.C. §1915(g) and has not met the imminent danger

exception. In reaching this conclusion, the Magistrate Judge

noted the litany of medical issues, alleged disregard of his

medical restrictions, and the threat of imminent danger of

serious physical injury asserted in the complaint. The

Magistrate Judge, citing Vandiver v. Vasbinder, 416 Fed.Appx.

560, 563 (6th Cir. 2011), recognized that the denial of medical

treatment can satisfy the imminent danger requirement. However,

the Magistrate Judge concluded, based upon Mr. Rittner’s

discussion in his complaint that he had been “seen by medical

personnel on at least four occasions over an approximate six-week

period” that Mr. Rittner was not in danger of serious physical

injury at the time he filed the complaint. See Report and

Recommendation, p. 5. 

In reaching this conclusion, the Magistrate Judge relied

upon several cases holding that where a prisoner has received

medical treatment but does not agree with the medical advice,

imminent danger has not been established. See, e.g., Brown v.

Beard, 492 F.Supp.2d 474, 478 (E.D. Pa. 2007)(prisoner was not in

imminent danger when disputing the quality of treatment he was

receiving for various medical conditions); 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

-2-

Case: 2:11-cv-00826-JLG-TPK Doc #: 12 Filed: 02/24/12 Page: 2 of 5 PAGEID #: <pageID>
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). 

III. 

In his objection, Mr. Rittner does not address the

Magistrate Judge’s conclusion that he is subject to the “threestrikes” rule. Further, he does not address specifically the

Magistrate Judge’s conclusion that he has failed to allege

imminent danger of serious physical injury. Rather, Mr. Rittner

appears to be asserting the merits of both his Eighth Amendment

claim for the denial of medical treatment and a First Amendment

claim for the denial of access to the courts perhaps based on the

mistaken belief that the Magistrate Judge recommended the

dismissal of his complaint. 

To the extent, however, that Mr. Rittner’s objection could

be construed as asserting disagreement with the Magistrate

Judge’s conclusion that he has not satisfied the imminent danger

exception, his objection will be overruled. In his objection,

Mr. Rittner again details at some length his various medical

conditions. However, as in his complaint, he indicates that he

has been seen by medical personnel. At most, the only objection

he potentially has raised is to the Magistrate Judge’s conclusion 

that, for the purposes of the imminent danger exception, his

complaint asserts disagreement with the medical opinions he has

received, not the denial of medical treatment. Despite his

objection to the Magistrate Judge’s characterization of his

allegations in this way, Mr. Rittner again proceeds to assert his

disagreement with various recommendations or diagnoses rather

than the denial of medical treatment. For example, Mr. Rittner

states that defendants have prescribed Tegretal for his seizure

-3-

Case: 2:11-cv-00826-JLG-TPK Doc #: 12 Filed: 02/24/12 Page: 3 of 5 PAGEID #: <pageID>
disorders when he believes they should have prescribed

oxcarbasepine. Further, he describes being treated for a skin

infection after which he developed an internal infection and

another exam where he was given pain medication for what

defendant Weidman described as “‘very bad’ low back arthritis.” 

The only other issue raised in Mr. Rittner’s objection is an

assertion that he “indicated injury and pending injury, imminent

danger” with respect to his access to the courts claim. Mr.

Rittner has not alleged how the denial of access to the courts

could subject him to the danger of serious physical injury as

contemplated by 28 U.S.C. §1915(g). Further, courts typically

require an Eighth Amendment violation to meet the requirements of

§1915(g). See Cohen v. Growse, 2011 WL 947085, *5 (E.D. Ky.

March 14, 2011) (citing cases).

IV.

The Court has conducted a de novo review of Mr. Rittner’s

complaint and agrees with the Magistrate Judge that Mr. Rittner

has failed to show that he was under imminent danger of serious

physical injury as defined by §1915(g) for purposes of his

current complaint filed while he was incarcerated at the Belmont

Correctional Institution. Consequently, Mr. Rittner’s motion to

proceed in forma pauperis will be denied and Mr. Rittner will be

required to pay the entire $350.00 filing fee. If Mr. Rittner

fails to pay the entire filing fee within thirty days of this

order, this action will be dismissed without prejudice for

failure to prosecute and Mr. Rittner will be assessed the $350.00

filing fee. See, e.g., Cohen, 2011 WL 947085 at *5-6; see also

In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).

V. 

For the reasons stated above, the Court OVERRULES

plaintiff’s objection (#10) and hereby ADOPTS the Magistrate

Judge’s Report and Recommendation (#3). The motion to proceed in

-4-

Case: 2:11-cv-00826-JLG-TPK Doc #: 12 Filed: 02/24/12 Page: 4 of 5 PAGEID #: <pageID>
forma pauperis (#1) is denied and plaintiff is required to pay

the entire $350.00 filing fee. If plaintiff fails to pay the

entire filing fee within thirty days of this order, this action

will be dismissed without prejudice for failure to prosecute.

IT IS SO ORDERED.

Date: February 24, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

-5-

Case: 2:11-cv-00826-JLG-TPK Doc #: 12 Filed: 02/24/12 Page: 5 of 5 PAGEID #: <pageID>