UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JERONE MCDOUGALD, Case No. 1:18-cv-498
Plaintiff,
Black, J.
vs. Litkovitz, M.J.

SHANNON BEAR, et. al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).


IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff be ordered to pay the full $400 fee ($350 filing fee plus $50 administrative
fee) required to commence this action within thirty (30) days, and that plaintiff be notified that
his failure to pay the full $400 fee within thirty days will result in the dismissal of his action.

See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith.

See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

vue AAW Shun Shot

Karen L. Litkovitz roy
United States Magistrate Judge



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
JERONE MCDOUGALD, Case No. 1:18-cv-498
Plaintiff,
Black, J.
vs. Litkovitz, M.J.
SHANNON BEAR, et. al., REPORT AND
Defendants. RECOMMENDATION

Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and
frequent filer in this Court,' has filed a pro se prisoner civil rights complaint without paying the
filing fee or submitting a motion for leave to proceed in forma pauperis. (See Doc. 1). In the
complaint, Mr. McDougald claims that on August 7, 2017 he was stripped naked, sprayed with
OC spray by defendant Shannon Bear, and was denied medical treatment by all named
defendants following the incident. (See Doc. 1 at PagelD 6-7). For relief, he seeks monetary
damages. (Jd. at PagelD 7).

The Court would ordinarily issue a Deficiency Order because Mr. McDougald has failed
to pay the filing fee or file a motion for leave to proceed in forma pauperis. However, the

Court will not enter a Deficiency Order at this time because McDougald is not entitled to

' As of this date, including this action, plaintiff has filed nineteen cases in the Southern District of Ohio. See
McDougald v. Erdos, 1:18-cv-135 (MRB; SKB) (S.D. Ohio Feb. 23, 2018); McDougald v. Clagg, 1:18-cv-93 (TSB;
SKB) (S.D. Ohio Feb. 9, 2018); McDougald v. Eaches, 1:18-cv-80 (MRB; SKB) (S.D. Ohio Feb. 5, 2018);
McDougald v. Erdos, 1:17-cv-464 (MRB; SKB) (S.D. Ohio July 10, 2017); McDougald v. Dillow, 1:17-cv-196
(MRB; KLL) (S.D. Ohio Mar. 27, 2017); McDougald v. Dunlap, 1:17-cv-127 (MRB; SKB) (S.D. Ohio Feb. 24,
2017); McDougald v. Bear, 1:17-cv-124 (MRB; SKB) (S.D. Ohio Feb. 21, 2017); McDougald v. Erdos, 1:17-cv-95
(SJD; SKB) (S.D. Ohio Feb. 10, 2017); McDougald v. Sammons, 1:17-cv-91 (MRB; SKB) (S.D. Ohio Feb. 10,
2017); McDougald v. Lt. Stone, 1:17-cv-72 (SID; SKB) (S.D. Ohio Feb. 1, 2017); McDougald v. Dillow, 1:16-cv-
1099 (MRB; SKB) (S.D. Ohio Nov. 23, 2016); McDougald v. Eaches, 1:16-cv-900 (SJD; KLL) (S.D. Ohio Sept. 6,
2016); McDougald v. Davis, 1:16-cv-633 (SJD) (June 10, 2016); McDougald v. Davis, 2:16-cv-545 (GCS; KAJ)
(S.D. Ohio June 10, 2016); McDougald v. Ahmad, 1:16-cv-500 (SID; SKB) (S.D. Ohio Apr. 28, 2016); McDougald
v. Esham, 1:16-cv-497 (SID; KLL) (S.D. Ohio Apr. 27, 2016); McDougald v. Mahiman, 1:16-cv-317 (TSB; SKB)
(S.D. Ohio Feb. 16, 2016); McDougald v. Timberlake, 1:08-cv-744 (MRB; JGW) (S.D. Ohio Oct. 29, 2008).


proceed with this matter in forma pauperis in view of his history of frivolous litigation.

A prisoner’s right to proceed in forma pauperis has been restricted by Congress. In
accordance with section 804(d) of the Prison Litigation Reform Act (PLRA) of 1995, Pub. L.
No. 104-134, 110 Stat. 1321, amending 28 U.S.C. § 1915:

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).

Mr. McDougald is prohibited by § 1915(g) from proceeding in forma pauperis in this
case because three prior complaints filed by him while he has been a prisoner were dismissed
with prejudice for failure to state a claim upon which relief may be granted. See McDougald v.
Sammons, Case No. 1:17-cv-91 (Barrett, J.; Bowman, M.J.) (S.D. Ohio Feb 10, 2017) (Doc. 7,
10, 11) (dismissal for failure to state a claim upon which relief may be granted pursuant to 28
U.S.C. §§ 1915(€)(2)(B) and 1915A(b)(1)); McDougald v. Stone, Case No. 1:17-cv-72 (Dlott, J.;
Bowman, M.J.) (S.D. Ohio Feb. 1, 2017) (Doc. 5, 17, 20, 26, 27) (dismissal for failure to state a
claim upon which relief may be granted); McDougald v. Ahmad, Case No. 1:16-cv-500 (Dlott, J.;
Bowman, M.J.) (S.D. Ohio Apr. 28, 2016) (Doc. 27, 34, 35) (dismissal for judgment on the
pleadings for failure to state a claim upon which relief may be granted under 28 U.S.C. §
1915(e)(2)). The previous three dismissals for failure to state a claim upon which relief may be
granted prevent Mr. McDougald from obtaining pauper status in the instant action.

In view of his three “strikes,” Mr. McDougald may not proceed in forma pauperis unless

he falls within the statutory exception set forth in 28 U.S.C. § 1915(g), which applies to prisoners

2


who are “under imminent danger of serious physical injury.” Under the plain language of the
statute, plaintiff must be in imminent danger at the time that he seeks to file his suit in federal
court to qualify for the exception to the “three strikes” provision of § 1915(g). See Vandiver v.
Vasbinder, 416 F. App’x 560, 561-62 (6th Cir. 2011) (and cases cited therein) (holding in
accordance with other circuit courts that “the plain language of § 1915(g) requires the imminent
danger to be contemporaneous with the complaint’s filing”); accord Chavis v. Chappius, 618
F.3d 162, 169 (2nd Cir. 2010) (citing Malik v. McGinnis, 293 F.3d 559, 563 (2nd Cir. 2002));
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir. 2001) (en banc);
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Banos v. O'Guin, 144 F.3d 883, 884
(Sth Cir. 1998) (per curiam); Chase v. O'Malley, 466 F. App’x 185, 186-87 (4th Cir. 2012) (per
curiam). Cf Pointer v. Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007). “By using the term
‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three strikes’ rule
to prevent impending harms, not those harms that had already occurred.” Abdul-Akbar, 239
F.3d at 315.

The Court is unable to discern from plaintiff's complaint any facts showing he meets the
statutory exception. Because plaintiff has failed to allege particular facts showing any
immediate or impending serious physical injury in existence at the time he commenced this

action, he does not meet the exception to the “three strikes” rule set forth in 28 U.S.C. § 1915(g).