UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES D. SUDBERRY, R.,

Plaintiff,

vs.

WARDEN, LEBANON

CORRECTIONAL INSTITUTION, et. 

al., 

Defendants.

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Case No. 1:18-cv-246

Judge Timothy S. Black

Magistrate Judge Stephanie K. 

Bowman

DECISION AND ENTRY

ADOPTING THE REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 2)

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the 

Magistrate Judge reviewed the pleadings filed with this Court and, on April 17, 2018, 

submitted a Report and Recommendation, recommending that the Court deny Plaintiff’s 

motion to proceed in forma pauperis, because Plaintiff has violated 28 U.S.C. 

§ 1915(g)’s three strikes rule. (Doc. 2). Plaintiff filed objections.

1

(Docs. 3, 4).

1 Plaintiff appears to argue that, regardless of whether he has violated 28 U.S.C. § 1915(g)’s 

three strikes rule, the Court should allow him to proceed in forma pauperis, because he is in 

imminent danger of physical injury. (Docs. 3, 4). 28 U.S.C. § 1915(g) does contain a “safety 

valve,” which allows a plaintiff to file a complaint in forma pauperis, when the plaintiff faces 

imminent danger. Bloodworth v. Mohr, No. 1:16-cv-1049, 2016 WL 6829647, at *2 (S.D. Ohio 

Nov. 21, 2016) (citation omitted). However, as the Magistrate Judge has already explained, 

Plaintiff does not qualify for the imminent danger exception. (Doc. 2 at 3). Plaintiff has not

advanced particular allegations that he presently faces impending harm. (Docs. 1, 3, 4). Instead, 

Plaintiff’s only particular allegations relate to a past harm that he allegedly suffered while 

incarcerated at a different facility. (Docs. 1, 3, 4). This is not sufficient to trigger the imminent 

danger exception. Plaintiff’s objections are overruled.

Case: 1:18-cv-00246-TSB-SKB Doc #: 5 Filed: 10/16/20 Page: 1 of 2 PAGEID #: 29
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As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has 

reviewed the comprehensive findings of the Magistrate Judge and considered de novo all 

of the filings in this matter. Upon consideration of the foregoing, the Court finds that the 

Report and Recommendation should be and is hereby adopted in its entirety. 

Accordingly, for the reasons stated above:

1. The Report and Recommendation (Doc. 2) is ADOPTED;

2. Plaintiff’s objections (Docs. 3, 4) are OVERRULED;

3. Within thirty (30) days of the date of this Order, Plaintiff SHALL pay the

full $400 fee ($350 filing fee plus $50 administrative fee) required to

commence this action;

4. Plaintiff SHALL take notice that his failure to pay the full $400 fee within

thirty (30) days of the date of this Order will result in the dismissal of his

action; and

5. The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal of

this Order would not be taken in good faith and therefore DENIES Plaintiff

leave to appeal in forma pauperis.

IT IS SO ORDERED.

Date: 

Timothy S. Black

United States District Judge

10/16/2020 s/Timothy S. Black

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