IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Dwayne Harris,

Plaintiff

 v.

Gary Croft, et al.,

Defendants

:

:

:

:

:

Civil Action 2:12-cv-0405

Judge Watson

Magistrate Judge Abel

REPORT AND RECOMMENDATION

Plaintiff Dwayne Harris, a prisoner incarcerated at the Richland Correctional

Institutuion, brings this action under 42 U.S.C. § 1983 alleging that defendants retaliated

against him for exercising his constitutionally protected right to file inmate grievances. 

This matter is before the Magistrate Judge on defendants' May 24, 2012 motion to

revoke plaintiff’s in forma pauperis status and compel immediate payment of the full

filing fee (doc. 7). Finding that plaintiff has filed three or more previous complaints or

appeals in federal court and that he has failed to demonstrate that he is “under danger

of serious physical harm” within the meaning of 28 U.S.C. §1915(g), I RECOMMEND

that the motion be GRANTED. 

Plaintiff does not allege that any of the named defendants have engaged in

conduct that has subjected him to the imminent danger of serious physical injury. 

Under the provisions of 28 U.S.C. § 1915(g) a prisoner who “has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or appeal in

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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,” cannot proceed in

forma pauperis “unless the prisoner is under imminent danger of serious physical

injury.” The prisoner must be “under imminent danger of serious physical harm” at the

time the complaint is filed, not at the time of the actionable events. Abdul-Akbar v.

McKelvie, 239 F.3d 307, 314 (3d Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th

Cir. 1999); Ashley v. Dilworth, 116 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d

883, 884-85 (5th Cir. 1998). 

Defendants assert that at least three of the seven cases Harris has filed have been

dismissed for failure to state a claim:

1. Dwayne Harris v. Ernie Moore, et al., Case No. 1:04-cv-796. Order 

dismissing in forma pauperis complaint sua sponte for failure to state a

claim. (Doc. 7). Affirmed on appeal. (Doc. 12). 

2. Dwayne Harris v. Olivia Karl, et al., Case No. 2:05-CV-1133. Report and 

Recommendation (Doc. 32) and Order (Doc. 38) dismissing in forma pauperis

complaint for failure to state a claim (res judicata). Not appealed.

3. Dwayne Harris v. Harry Hageman, et al., Case No. 2:11-cv-728. Report and 

Recommendation (Doc. 5) and Order (Doc. 10) dismissing in forma pauperis 

complaint for failure to state a claim. Appeal pending, Case No. 11-4288.

Defendants' May 24, 2012 Motion to Revoke, Doc. 7, Exhibit A, Affidavit of J. Gregory

Glasgow ¶ 6. Plaintiff concedes that Dwayne Harris v. Ernie Moore, et al., Case No. 1:04-cv796 and Dwayne Harris v. Olivia Karl, et al., Case No. 2:05-CV-1133 were dismissed for failure

to state a claim and count as two strikes, but he argues that Dwayne Harris v. Harry Hageman, et

al., Case No. 2:11-cv-728 should not count as a strike because, although it was dismissed

for failure to state a claim, his appeal of that decision is still pending. That argument is

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not well taken because the statute does not exempt complaints dismissed on initial

screening because an appeal is pending. Moreover, § 1915(g) provides that a prisoner

who “has, on 3 or more prior occasions . . . brought an . . . appeal in a court of the

United States that was dismissed on the grounds that it . . . fails to state a claim upon

which relief may be granted” cannot proceed in forma pauperis .“ Even if 2:11-cv-728

were not counted as a strike, plaintiff Harris's appeal of 1:04-cv-796 counts as a strike

because the Court of Appeals affirmed the district court’s ruling that the complaint

failed to state a claim for relief.

Accordingly, the Magistrate Judge RECOMMENDS that defendants' May 24,

2012 motion to revoke plaintiff’s in forma pauperis status and compel immediate

payment of the full filing fee (doc. 7) be GRANTED. Plaintiff Dwayne Harris is

ORDERED to pay the Court’s $350 filing fee within thirty (30) days of the date of this

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

In addition, plaintiff’s motions for leave to file a cross-reply and a sur-reply

(docs. 11 and 14) are GRANTED. Plaintiff’s motion for the court to issue service of the

complaint on defendant Heidi Novik at her home address (doc. 16) is DENIED without

prejudice to renew the motion after he pays the $350 filing fee. Finally, plaintiff’s July

11, 2012 motion for a protective order (doc. 16) is DENIED. The facts supporting the

motion arose after this lawsuit was filed. Further, given plaintiff’s four previous

frivolous complaints or appeals and his false statement in his application to proceed in

forma pauperis that three or more of his previous complaints or appeals had not been

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dismissed for failure to state a claim, he has failed to demonstrate a likelihood that he

can prove that the named individuals threatened to kill him.

If any party objects to this Report and Recommendation, that party may, within

tfoureen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

 

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