IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Dennis Pointer, 

 

Plaintiff, 

 

v. Case No. 2:11-cv-0109 

 

Mr. Marc, et al., JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

Defendants. 

 

REPORT AND RECOMMENDATION

Plaintiff, Dennis Pointer, a state prisoner, filed this

civil rights action under 42 U.S.C. §1983 against various state

prison officials. He did not pay the filing fee, but did file a

motion for leave to proceed in forma pauperis. At the time he

filed this action, Mr. Pointer was incarcerated at the

Chillicothe Correctional Institution. 

I. Background

By order dated March 8, 2011, the Court noted that Mr.

Pointer has had three or more cases or appeals dismissed in the

past as frivolous or for failure to state a claim. See, e.g.,

Pointer v. Brown & Williamson, Case No. 1:97-cv-267 (S.D. Ohio);

Pointer v. Jorgensen, Case No. 1:00-cv-861 (S.D. Ohio); Pointer

v. Lyon, Case No. 1:02-cv-486 (S.D. Ohio). Under the Prison

Litigation Reform Act codified at 28 U.S.C. §1915(g), the socalled “three strikes” rule, a prisoner is prevented from

proceeding in forma pauperis if that prisoner “has, on 3 or more

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 ground 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.” 

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 1 of 12 PAGEID #: <pageID>
-2-

While Mr. Pointer addressed the issue of imminent danger in

his initial motion, because of the way in which he did so, the

Court was unable to consider the issue without further

information. Specifically, the Court noted that, of the

allegations that might suggest imminent danger, including those

of inadequate medical care or other health-related concerns,

those claims were directed toward employees of the Allen

Correctional Institution. At the time he filed his complaint,

however, Mr. Pointer was incarcerated at the Chillicothe

Correctional Institution. The Court also noted that Mr. Pointer

had not supported his allegations with an affidavit or sworn

statement. In order to resolve this matter, the Court ordered

Mr. Pointer “to support his request for leave to proceed in forma

pauperis with an affidavit explaining the course of treatment he

has received since he arrived at the Chillicothe Correctional

Institution, accompanied by any medical records or grievances

related to his claim that he is still being denied treatment in a

way that threatens his future health or safety.” See Order (Doc.

#6), p. 5. 

In response, Mr. Pointer has made no less than six filings,

including a sworn affidavit (Doc. #7), a motion for declaratory

judgment and motion to amend the sworn affidavit (Doc. #8),

another sworn affidavit (Doc. #11), a motion to amend (Doc. #12),

an “amended document” (Doc. #13), and a motion to amend his

complaint (Doc. #15). He has also filed three notices of his

change of address (Docs. #9, #10, and #14). The first two

notices indicate that, at some point after the Court issued its

order of March 8, 2011, Mr. Pointer was transferred from the

Chillicothe Correctional Institution to the Belmont Correctional

Institution. The most recent notice, filed May 11, 2011,

indicates that Mr. Pointer currently is incarcerated at the

Lebanon Correctional Institution.

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 2 of 12 PAGEID #: <pageID>
-3-

II. Mr. Pointer’s Filings

In his initial motion, Mr. Pointer raised issues regarding

his foot condition, high blood pressure and dizziness, and his

need for a bottom bunk restriction. His additional filings,

which were directed to address his course of treatment at the

Chillicothe Correctional Institution with respect to these

issues, will be summarized below. However, as this summary will

show, despite the Court’s direction, very little of the

information contained in these various filings relates to Mr.

Pointer’s course of treatment at that particular institution. 

In his sworn affidavit filed March 24, 2011 (Doc. #7), Mr.

Pointer asserts that he received orthotics and boots prescribed

by the doctors at the Correctional Medical Center while he was at

the Chillicothe Correctional Institution. The doctor at the

Chillicothe Correctional Institution made two referrals for Mr.

Pointer to have an MRI of his feet and one referral to see the

“Inst. foot docter.” While at the Chillicothe Correctional

Institution, Mr. Pointer told the supervising psychologist about

his bottom bunk and range restriction, surgery consultation, and

other medical concerns. Mr. Pointer was transferred to the

Belmont Correctional Institution before he was able to pursue the

referrals. 

Mr. Pointer attached to this filing five exhibits. Exhibit

A is an Ohio Department of Rehabilitation and Correction

memorandum from Mr. Croft to the Warden of the Chillicothe

Correctional Institution dated March 8, 2011, indicating, without

specificity, receipt on March 2, 2011, of a grievance from Mr.

Pointer. The second exhibit, also marked as Exhibit A, is a

notification of grievance dated February 28, 2011, signed by Mr.

Pointer and asserting that he was transferred to the Chillicothe

Correctional Institution from the Belmont Correctional

Institution and that he wants to stay at Chillicothe and not be

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 3 of 12 PAGEID #: <pageID>
-4-

transferred back to Belmont. Exhibit B is a handwritten

statement made by Mr. Pointer with a handwritten response dated

March 15, 2011. In this statement, Mr. Pointer claims that he is

being denied “his human rights out of retiliation (sic) by

Be.C.I. staff....” Exhibit C is a rules infraction board form

dated March 17, 2011, indicating that Mr. Pointer received the

following disposition: “15 days DC 3/16/11 through 4/1/11 and a

recommendation for local control placement due to 6th Rib Hearing

for Rule 14 since 2010.” Exhibit D is an informal complaint

resolution form dated March 17, 2011, presumably completed by Mr.

Pointer and requesting shower accommodations to address his

medical needs and a bottom bunk restriction while at the Belmont

Correctional Institution.

In his motion for declaratory judgment and motion to amend

his sworn affidavit filed March 28, 2011 (Doc. #8), Mr. Pointer

makes a number of claims. However, it appears from all of Mr.

Pointer’s other filings that this filing contains allegations

relating exclusively to Mr. Pointer’s incarceration at the

Belmont Correctional Institution. Mr. Pointer contends that the

shower in his cell does not have a working emergency button and

has a pre-set temperature which is too hot causing him shortness

of breath, dizziness, and chest pain. Further, he asserts that

he has a “self-carry” prescription for nitroglycerin for his

chest pain but he is not allowed to carry the medication because

it is in a glass bottle. Additionally, he contends that he is

not allowed to sleep in the bottom bunk despite his medical

issues because he has been assigned to the top bunk. Mr. Pointer

claims that he is housed with two other inmates in a cell

designed to accommodate only two inmates. He asserts that, as a

result of all these living conditions, he has had the dosages of

his mental health medications increased. Finally, he requests

that the Court declare unconstitutional the mandatory sex

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 4 of 12 PAGEID #: <pageID>
-5-

offender program which he was required to complete but others

were not. Mr. Pointer has attached to this filing four decisions

on grievance appeals dated between February 3, 2011, and February

24, 2011. These decisions relate to Mr. Pointer’s grievances

that the Belmont Correctional Institution was not honoring his

special footwear requests, the loss of personal property, and

denial of access to the law library, grievance forms, and legal

services such as copying and typing.

The issues raised in Mr. Pointer’s sworn affidavit filed

April 7, 2011 (Doc. #11) also appear to relate to his

incarceration at the Belmont Correctional Institution. Mr.

Pointer claims that the institution has no legal services

department and that is making it difficult for him to demonstrate

his imminent danger. Mr. Pointer further states that he was told

that he could not keep his nitroglycerin with him because it was

in a glass bottle and because he had overdosed on the medication

four months prior. Rather, he was told that if he needed his

nitroglycerin, he was to notify the corrections officer who would

call the nurse to bring it. Additionally, Mr. Pointer asserts

that he was told that he does not have a bottom bunk restriction

ordered by a doctor. 

He has submitted five exhibits in support of this affidavit. 

Exhibit A is an undated hand-written request for copies of legal

cases and other copying services with a hand-written response

indicating that the institution has no legal services department. 

Exhibit B is another undated hand-written document with another

hand-written response indicating that the doctor at the Belmont

Correctional Institution did not order a lower bunk restriction. 

Exhibit C is an informal complaint resolution form dated March

24, 2011, in which the response to Mr. Pointer’s claim about his

need to carry his nitroglycerin was that, for his own safety, he

needed to notify the corrections officer who would notify the

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 5 of 12 PAGEID #: <pageID>
-6-

nurse to bring the medication. Exhibits D and E are affidavits

from two other inmates stating that a nurse told Mr. Pointer he

is allowed to carry his nitroglycerin. 

Mr. Pointer’s motion to amend, also filed April 7, 2011

(Doc. #12), notes the lack of a legal services department,

suggests that he may have been transferred back to the

Chillicothe Correctional Institution for mental health treatment,

claims the institutional grievance procedure is arbitrary and

capricious, and seeks to amend his complaint to add new

defendants. He has attached to this filing a notification of

grievance form dated April 4, 2011, in which he asserts that he

has been denied medical care while at the Belmont Correctional

Institution. According to this grievance, Mr. Pointer claims

that his inability to “self-carry” his nitroglycerin is contrary

to doctor’s orders. 

Mr. Pointer’s motion to amend his sworn affidavit filed 

April 18, 2011 (Doc. #13) brings some degree of clarity to all of

the above filings and to some degree explains his attempts to

comply with the Court’s order to support his request for leave to

proceed in forma pauperis with information regarding his course

of treatment at the Chillicothe Correctional Institution. Mr.

Pointer reiterates that while he was housed at the Chillicothe

Correctional Institution, the doctor at the Correctional Medical

Center referred him for an MRI of his foot and referred him to

the institutional podiatrist for a surgery consultation. On

March 8, 2011, Mr. Pointer was transferred to the Belmont

Correctional Institution where the doctor informed him that the

central office had cancelled the referrals. On March 21, 2011,

while still housed at the Belmont Correctional Institution, Mr.

Pointer was told he could not carry his nitroglycerin because it

was in a glass bottle. On March 24, 2011, the doctor ordered the

nurse to return the medication to Mr. Pointer. When Mr. Pointer

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 6 of 12 PAGEID #: <pageID>
-7-

filed a grievance against the nurse for refusing to allow him to

“self-carry” his nitroglycerin, he was informed by the health

care administrator that he was not allowed to carry his

nitroglycerin because he had overdosed on it. Mr. Pointer

requested a refill of his nitroglycerin on April 4, 2011, and, at

that time, the doctor agreed that Mr. Pointer should be required

to have the nurse administer his nitroglycerin. On April 10,

2011, Mr. Pointer experienced chest pain and waited nearly an

hour for the nurse to arrive and administer two nitroglycerin

pills although he had requested three. The nurse took Mr.

Pointer to the infirmary, administered an EKG (the results of

which she determined were abnormal), and sent him to the

emergency room of a local hospital. The emergency room doctor

administered to Mr. Pointer a nitroglycerin pack and aspirin and

recommended that the doctor at the Belmont Correctional

Institution prescribe that specific treatment for Mr. Pointer. 

Mr. Pointer suggests that, perhaps for some retaliatory reason

relating to the grievance against the nurse, the doctor at the

Belmont Correctional Institution has refused to follow the advice

of the emergency room physician and will not prescribe a

nitroglycerin pack. On April 12, 2011, Mr. Pointer once again

experienced chest pain and waited 45 minutes for the nurse to

arrive with his nitroglycerin.

In his most recent filing, captioned as a motion to amend

the complaint (Doc. #15), Mr. Pointer attaches four exhibits

which he would like to have included with his complaint. The

first exhibit, an informal complaint resolution form with a

submission date of March 24, 2011, and a response date of March

28, 2011, relates to many of the same health issues and alleged

lack of accommodations discussed above. Exhibit B appears to be

a hand-written response dated April 13, 2011, indicating without

specificity that Mr. Pointer’s “medical condition” does not

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 7 of 12 PAGEID #: <pageID>
-8-

require special accommodations. Exhibit C is a disposition of

grievance form indicating that, to the extent Mr. Pointer

believes he needs a bottom bunk restriction due to dizziness and

lightheadedness caused from medications, he already has a bottom

bunk restriction due to the medical issues involving his foot. 

Exhibit D is a notification of grievance signed by Mr. Pointer

and dated May 2, 2011, in which he claims that various health

care providers have been deliberately indifferent to his serious

medical needs including specifically his need for a bottom bunk

restriction and his need for a change in his blood pressure

medication. All of these exhibits appear to relate to issues

arising during Mr. Pointer’s incarceration in the Belmont

Correctional Institution. 

III. Analysis

For purposes of 28 U.S.C. §1915(g), the Court is to consider

whether Mr. Pointer is in imminent danger at the time of the

filing of the complaint. Vandiver v. Vasbinder, 2011 WL 1105652,

*2 (6th Cir. March 28, 2011) (“the plain language of §1915(g)

requires the imminent danger to be contemporaneous with the

complaint’s filing.”). As discussed above, in Mr. Pointer’s

complaint, most of his allegations regarding his medical care

were directed toward employees of the Allen Correctional

Institution although he was incarcerated at the Chillicothe

Correctional Institution at the time of filing. In an effort to

allow Mr. Pointer to clarify the allegations of his complaint as

they relate to any claim of imminent danger at the time of its

filing, the Court directed him to explain the course of treatment

he received at the Chillicothe Correctional Institution and to

provide any supporting medical records or grievances. 

Despite having been afforded this opportunity, Mr. Pointer

has not done so. Instead, as detailed at length above, all of

his filings in response to the Court’s order relate, almost

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 8 of 12 PAGEID #: <pageID>
-9-

exclusively, to his alleged course of treatment at the Belmont

Correctional Institution. The information relating to his course

of treatment at the Chillicothe Correctional Institution can be

summed up as Mr. Pointer’s having received two referrals - one

for an MRI of his foot and one for a surgery consultation with

the institutional podiatrist. While, as the Court previously

recognized, the ongoing denial of medical care can, in some

instances, put an inmate in sufficient danger so that he

satisfies the “three strikes” provision of the PLRA, Mr. Pointer

has not provided any documentation supporting a conclusion that

this was the circumstance when he filed his complaint in this

action. In fact, the limited amount of information he has

provided relating to his time in the Chillicothe Correctional

Institution indicates that just the opposite may have been true. 

Mr. Pointer’s subsequent filings simply do not suggest that

he was being denied medical treatment with respect to his foot

condition while he was incarcerated at the Chillicothe

Correctional Institution. Further, these filings do not address

any denial of medical treatment, to the extent that they might

fall within the exception permitted by §1915(g), relating to his

issues of high blood pressure, dizziness, or his need for a

bottom bunk restriction during his incarceration at the

Chillicothe Correctional Institution. Again, aside from Mr.

Pointer’s acknowledgment of the referrals for his foot condition,

the focus of his subsequent filings, at least with respect to

medical conditions potentially relevant to the exception under

§1915(g), involves his course of treatment while at the Belmont

Correctional Institution. 

Because Mr. Pointer’s filings address his alleged course of

treatment after his transfer from the Chillicothe Correctional

Institution, he cannot demonstrate that the danger of any harm

was “real and proximate” and existed at the time of his

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 9 of 12 PAGEID #: <pageID>
-10-

complaint. See Rittner v. Kinder, 290 Fed. Appx. 796 (6th Cir.

August 20, 2008). As a result, the Court cannot conclude, based

on the record before it, that Mr. Pointer has demonstrated that

he was under imminent danger at the time of the filing of the

complaint. See Vandiver. Consequently, Mr. Pointer has not met

the exception under §1915(g) and is not entitled to proceed in

forma pauperis. 

Moreover, even if the Court were permitted to construe Mr.

Pointer’s filings quite broadly and consider the allegations

concerning his medical treatment while at the Belmont

Correctional Institution, he could not demonstrate imminent

danger. Mr. Pointer’s most recent change of address filing

indicates that he currently is incarcerated in the Lebanon

Correctional Institution. Mr. Pointer would be unable to

demonstrate that he is facing a real and proximate threat from

his course of medical treatment at the Belmont Correctional

Institution now that he is no longer housed there. See, e.g.,

Schuenke v. Wisconsin Dept of Corrections, 2009 WL 3086089 (W.D.

Wis. Sept. 18, 2009) (plaintiff no longer faced emergency

relating to asthma claim following transfer to another

institution). Stated another way, now that Mr. Pointer is housed

in the Lebanon Correctional Institution, all of his filings

relate to harm he allegedly suffered in the past and, therefore,

cannot be considered “imminent.” See Rittner; see also Jennings

v. Hall, 2010 WL 748239, *3 (W.D. Mich. March 3, 2010). 

In summary, Mr. Pointer 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 Chillicothe Correctional Institution. 

Consequently, the Court recommends that the pending motion to

proceed in forma pauperis be denied and that Mr. Pointer be

required to pay the entire $350.00 filing fee. The Court further

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 10 of 12 PAGEID #: <pageID>
-11-

recommends that, if Mr. Pointer fails to pay the entire filing

fee within thirty days of an order adopting this Report and

Recommendation, this action be dismissed without prejudice for

failure to prosecute and that Mr. Pointer still be assessed the

$350.00 filing fee. See, e.g., Cohen v. Growse, 2011 WL 947085

(E.D. Ky. March 14, 2011); see also In re Alea, 286 F.3d 378 (6th

Cir. 2002). 

IV. Recommended Decision

Based on the above discussion, it is recommended that the

motion to proceed in forma pauperis (#1) be denied and that

plaintiff be required to pay the entire $350.00 filing fee. It

is further recommended that plaintiff’s failure to do so within

30 days of an order adopting this Report and Recommendation

should result in this action being dismissed without prejudice

for failure to prosecute and the assessment of the $350.00 filing

fee against plaintiff. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 11 of 12 PAGEID #: <pageID>
-12-

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

 

 /s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-cv-00109-JLG-TPK Doc #: 16 Filed: 07/07/11 Page: 12 of 12 PAGEID #: <pageID>