IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DENNIS WAYNE POINTER,

Plaintiff,

v. Civil Action 2:18-cv-653

Judge James L. Graham

Magistrate Judge Jolson

MR. MORH, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate, seeks to initiate this action without prepayment of fees or costs. 

(Doc. 4). For the reasons that follow, it is RECOMMENDED that the Motion be DENIED.

I. BACKGROUND

The Prison Litigation Reform Act (“PLRA”) prohibits the grant of leave to proceed in 

forma pauperis under certain circumstances:

In no event shall a prisoner 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.

28 U.S.C. § 1915(g) (also known as the “Three-Strikes Provision”). As this Court has previously 

noted, Plaintiff has, on at least 3 occasions, brought an action in this Court that was dismissed for 

failure to state a claim upon which relief can be granted. See, e.g., Pointer v. Marc, No. 2:11-

CV-0109, 2011 WL 847012, at *1 (S.D. Ohio Mar. 8, 2011) (citing Pointer v. Brown & 

Williamson, No. 1:97-cv-267 (S.D. Ohio)); Pointer v. Jorgensen, No. 1:00-cv-861 (S.D. Ohio); 

Pointer v. Lyon, No. 1:02-cv-486 (S.D. Ohio)); see also Pointer v. Wilkinson, 502 F.3d 369, 377 
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(6th Cir. 2007) (holding that Plaintiff Dennis Pointer is a three-strikes prisoner). The ThreeStrikes Provision of the PLRA thus prohibits Plaintiff from proceeding without the prepayment 

of fees or costs unless he “is under imminent danger of serious physical injury.” Otherwise, 

Plaintiff must pay the entire filing fee at the outset of the case.

In his Complaint, Plaintiff alleges that he is being denied mental health “programming”

for his posttraumatic stress disorder. (Doc. 1 at 4). Plaintiff also alleges that he is “acutely 

depressed and suicidal.” (Id.). “[T]he ongoing denial of medical care can, in some cases, put an 

inmate in sufficient danger that he satisfies the ‘three strikes’ provision of the PLRA.” Pointer v. 

Marc, 2011 WL 847012, at *1. However, the way in which Plaintiff presented his claims in his 

initial Complaint did not address whether he was in imminent danger, and thus it was “somewhat 

hard to determine if he should be allowed to proceed with this case notwithstanding the prior 

dismissals.” Id. Consequently, the undersigned directed Plaintiff to provide the Court additional 

information regarding his status. In short, the undersigned gave Plaintiff an opportunity to 

explain why he should be allowed to proceed in forma pauperis, even though he is a three-strikes 

prisoner.

On August 24, 2018, Plaintiff complied. As instructed, he filed an affidavit describing, 

from his perspective, why he is in “imminent danger.” (Doc. 7). Plaintiff also filed a Motion for 

Leave to Amend on September 4, 2018. (Doc. 8).

II. STANDARD

The fact that Plaintiff is a three-strikes prisoner is not in dispute. The only question is 

whether he is in imminent danger such that he can proceed in forma pauperis despite his status. 

The Sixth Circuit has set forth the following general requirements for a claim of imminent 

danger:
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In order to allege sufficiently imminent danger, we have held that “the threat or 

prison condition must be real and proximate and the danger of serious physical 

injury must exist at the time the complaint is filed.” Rittner v. Kinder, 290 F. 

App’x 796, 797 (6th Cir. 2008) (internal quotation marks omitted). “Thus a 

prisoner’s assertion that he or she faced danger in the past is insufficient to invoke 

the exception.” Id. at 797–98; see also [Taylor v. First Med. Mgmt., 508 F. App’x 

488, 492 (6th Cir. 2012)] (“Allegations of past dangers are insufficient to invoke 

the exception.”); Percival v. Gerth, 443 F. App’x 944, 946 (6th Cir. 2011)

(“Assertions of past danger will not satisfy the ‘imminent danger’ exception.”); cf.

[Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007)] (implying that past 

danger is insufficient for the imminent-danger exception).

In addition to a temporal requirement, we have explained that the allegations must 

be sufficient to allow a court to draw reasonable inferences that the danger exists. 

To that end, “district courts may deny a prisoner leave to proceed pursuant to § 

1915(g) when the prisoner’s claims of imminent danger are conclusory or 

ridiculous, or are clearly baseless (i.e. are fantastic or delusional and rise to the 

level of irrational or wholly incredible).” Rittner, 290 F. App’x at 798 (internal 

quotation marks and citations omitted); see also Taylor, 508 F. App’x at 492

(“Allegations that are conclusory, ridiculous, or clearly baseless are also 

insufficient for purposes of the imminent-danger exception.”).

Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013).

III. DISCUSSION

Two aspects of Plaintiff’s filings stand out. First, Plaintiff’s allegations date as far back 

as 2016 (see Doc. 7 at 2), and stale allegations cannot support a claim of imminent danger. See 

Gresham v. Heyns, No, 1:12-cv-277, 2012 U.S. Dist. LEXIS 50958, at *6 (W.D. Mich. April 11, 

2012) (noting that imminent danger must be contemporaneous with filing of complaint). 

Second, Plaintiff notes numerous times he has received mental health treatment while in 

prison—including as recently as July of this year when he was placed on suicide watch. (Doc. 8 

at 3; see also id. at 5 (describing interaction with mental healthcare liaison)). Indeed, Plaintiff’s 

filings, read in their entirety, make it crystal clear that Plaintiff is receiving mental health 

treatment. Plaintiff even asked this Court to stay this case until his mental health observation 

was complete. (See Doc. 2). It is thus undisputed that Plaintiff is receiving mental health 
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treatment; he simply wants a specific type of treatment—in his words, posttraumatic stress 

disorder “programming.” To put an even finer point on it, Plaintiff alleges he is in imminent 

danger because he is suicidal, but Madison Correctional Institution was responsive to that need

because Plaintiff’s own allegations make clear that he has been on suicide watch multiple times. 

Because he is receiving mental health treatment, this case is unlike the cases in which a prisoner 

was receiving no care. Cf. Vandiver, 727 F.3d at 587 (finding imminent-danger standard 

satisfied where prisoner alleged denial of medical treatment). 

In addition, circumstances have changed since Plaintiff brought this lawsuit. He initiated 

this lawsuit against employees of the Madison Correctional Institution, and much of his 

Complaint focuses on the performance of his mental health liaison at that institution, Ms. Evans. 

(Doc. 1 at 5, 8). Likewise, Plaintiff’s Amended Complaint centers on what happened at Madison 

Correctional Institution. Plaintiff, however, is no longer housed at Madison Correctional 

Institution. On or about July 18, 2018, Plaintiff was transferred to Toledo Correctional 

Institution. Consequently, his mental health treatment (or alleged lack of treatment) at Madison 

Correctional Institution cannot present an imminent threat. See Taylor v. First Med. Mgmt., 508 

F. App’x 488, 492 (6th Cir. 2012) (“Allegations of past dangers are insufficient to invoke the 

exception.”); see also Schuenke v. Wis. Dep’t of Corrs., 2009 U.S. Dist. LEXIS 85909, 2009 WL 

3086089 (W.D. Wis. Sept. 18, 2009) (noting that prisoner no longer faced emergency relating to 

asthma claim following transfer to another institution). Importantly, Plaintiff has not made any 

allegations regarding his mental health treatment at Toledo Correctional Facility. To the 

contrary, in his Amended Complaint, which was filed after his transfer, Plaintiff does not seek

mental health treatment; instead, Plaintiff seeks monetary damages and a transfer to a lower 
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security prison. Consequently, any alleged emergency Plaintiff faced at Madison Correctional 

Institution has been remedied by the transfer.

One final note. Many of the allegations in Plaintiff’s filings do not relate to his ongoing 

mental health issues that form the basis of his allegation of imminent danger of serious injury. 

For example, Plaintiff discusses that he was fired from his job in food service and alleges that he 

inappropriately denied his prison mail. (See Doc. 1). And his Amended Complaint seeks, inter 

alia, a refund to his commissary account. (Doc. 8 at 5). “It is a requirement of the PLRA, 

however, that the alleged danger which might justify allowing the prisoner to proceed despite his 

three prior ‘strikes’ must be related to claims in the complaint; that is, ‘the prisoner’s complaint 

seek to redress an imminent danger of serious physical injury and that this danger must be fairly 

traceable to a violation of law alleged in the complaint.’” Pointer v. Marc, 2011 WL 847012, at 

*2 (quoting Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009)). “In other words, the 

existence of a threat of injury can be used to excuse the payment of the filing fee only for a 

complaint that relates to the same injury, and not to some separate or unrelated occurrence.” Id. 

IV. CONCLUSION

In summary, the undersigned has considered thoroughly Plaintiff’s allegations of 

imminent harm. Based on all of his filings, the undersigned concludes that Plaintiff has failed to 

show that he is under imminent danger of serious physical injury as defined by §1915(g). 

Consequently, the undersigned RECOMMENDS that the pending motion to proceed in forma 

pauperis be DENIED and that Plaintiff be required to pay the entire filing fee. The undersigned

further recommends that, if Plaintiff 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 Plaintiff still be assessed the required filing fee. See, e.g., Cohen v. 
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Growse, 2011 U.S. Dist. LEXIS 25056, 2011 WL 947085 (E.D. Ky. March 14, 2011); see also 

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

PROCEDURE ON OBJECTIONS

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

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed finding or recommendations to which objection is made, together with 

supporting authority for the objection(s). A District Judge of this Court shall make a de novo 

determination of those portions of the Report or specific proposed findings or recommendations 

to which objection is made. Upon proper objection, a District 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 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).

IT IS SO ORDERED.

Date: September 19, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE