IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Dennis Wayne Pointer,

Plaintiff,

v. Case No. 2:18-cv-653

Mr. Morh, et al.,

Defendants.

ORDER

Plaintiff, an Ohio state inmate, brings the instant civil

action against officers and employees of the Ohio Department of

Rehabilitation and Correction. Plaintiff’s claims concern his

termination from his food service job at the Madison Correctional

Institution and the alleged denial of his access to court by the

mail room employees at the institution. Plaintiff also seeks

damages for the failure to send him to an institution where

posttraumatic stress disorder (“PTSD”) “programming” is available.

On September 19, 2018, the magistrate judge filed an initial

screen report and recommendation concerning plaintiff’s motion for

leave to proceed with this action without prepayment of fees or

costs. The magistrate judge noted that under 28 U.S.C. §1915(g),

also known as the “Three-Strikes Provision”, a prisoner may not

bring a civil action in forma pauperis if the prisoner has brought

an action in a court of the United States which 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). The magistrate judge further observed that plaintiff

had, on at least three prior occasions, filed actions in this court
that were dismissed for failure to state a claim upon which relief

can be granted, and that the Sixth Circuit had also concluded that

plaintiff was a three-strikes prisoner. See Pointer v. Wilkinson,

502 F.3d 369, 377 (6th Cir. 2007).

Because plaintiff did not address in his complaint whether he

was in imminent danger, the magistrate judge granted leave for

plaintiff to explain why he should be allowed to proceed in forma

pauperis. In response, plaintiff filed an affidavit on August 24,

2018. In his affidavit, plaintiff stated that in 2016, he was

diagnosed with PTSD and placed in PTSD “programming” at the

Columbus Reception Center. He stated that when he returned to the

Madison Correctional Institution, he was told by staff that they

could not provide PTSD “programming” because of his security level. 

Plaintiff stated that he was placed on suicide watch on May 10,

2018, and was thereafter moved in and out of a suicide prevention

cell. Plaintiff stated that he was found guilty of spitting on a

guard at a prison disciplinary hearing, and was transferred to the

Toledo Correctional Institution on or about July 18, 2018, where

the staff told him that there was no mental health programming for

PTSD. Plaintiff also filed a motion for leave to amend his

complaint to assert claims regarding the disciplinary proceeding

and a claim for the refund of $1.92 he spent at the commissary

prior to his transfer to the Toledo Correctional Institution.

The magistrate judge noted plaintiff claimed to be in imminent

danger because he is suicidal, but that his filings clearly

indicated that he is receiving mental health treatment, including

being placed on suicide watch multiple times. The magistrate judge

observed that some of plaintiff’s claims against employees at the

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Madison Correctional Institution did not concern his mental health

treatment, and that those claims did not give rise to any imminent

danger. The magistrate judge also noted that plaintiff is no

longer at the Madison Correctional Institution. The magistrate

judge recommended that the motion for leave to proceed in forma

pauperis be denied. This matter is before the court for

consideration of plaintiff’s objections (Doc. 10) to the magistrate

judge’s report and recommendation. If a party objects within the

allotted time to a report and recommendation, the court “shall make

a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made.” 28 U.S.C. §636(b)(1); see also Fed. R. Civ. P. 72(b). 

Upon review, the Court “may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. §636(b)(1).

 The imminent danger exception is essentially a pleading

requirement. Vandiver v. Prison Health Services, Inc., 727 F.3d

580, 585 (6th Cir. 2013). At this stage of the case, plaintiff is

only required to assert allegations of imminent danger; he is not

required to affirmatively prove those allegations. Id. In order

to sufficiently allege imminent danger, 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. 

Id., citing Rittner v. Kinder, 290 F. App’x 796, 797 (6th Cir.

2008). Allegations of past dangers are insufficient. Id. The

allegations must also be sufficient to allow a court to draw

reasonable inferences that the danger exists; conclusory

allegations are not sufficient. Id.

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In his objections, plaintiff claims that while at the Madison

Correctional Institution, he was given pills by other inmates (he

does not allege what these pills contained), and that another

inmate had offered to slip a sheet into his cell so that he could

commit suicide. Plaintiff also noted his allegations that he had

stopped taking his high blood pressure, high cholesterol, and heart

medications in an effort to commit suicide. He reiterated his

allegations concerning the loss of his food service job and his

transfer to Toledo after he spit on a guard. He again complains

about the alleged lack of PTSD “programming” and his desire to be

transferred to a facility with PTSD “programming.”

As the magistrate judge noted, this is not a case involving a

complete lack of medical care. Plaintiff’s complaint alleged the

failure to provide PTSD “programming.” Beyond this conclusory

statement, plaintiff did not allege how the treatment he received

at the Madison Correctional Institution was inadequate to protect

him from any imminent danger created by whatever suicidal

tendencies he has. Plaintiff’s filings include multiple references

to mental health treatment he has received, including being placed

on mental health and suicide watch on many occasions. He alleged

in his complaint that he was on suicide watch. He filed a motion

to stay this case until his mental health observation was complete,

stating that he had been on constant watch, and that he had been on

mental health watch every half hour while at the Madison

Correctional Institution. See Doc. 2. His affidavit also

indicated that he was placed on suicide watch on multiple

occasions. Plaintiff does not allege how his mental health

treatment at the Toledo institution, his current place of

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confinement, is inadequate so as to currently place him in imminent

danger of serious physical injury. Rather, he repeats the bare

allegation that the Toledo institution does not have PTSD

“programming.” 

After considering plaintiff’s filings, the court finds that

plaintiff has failed to allege an imminent, real and proximate

danger of serious physical injury so as to qualify for in forma

pauperis status under the exception to the “Three-Strikes

Provision.” In accordance with the foregoing, the report and

recommendation (Doc. 9) is adopted. Plaintiff’s objections (Doc.

10) are overruled. Plaintiff’s motion to initiate this action

without prepayment of fees or costs (Doc. 4) is denied, and

plaintiff will be required to pay the entire filing fee.

Plaintiff is hereby ordered to pay the entire filing fee of

four hundred dollars ($400.00) within thirty days of the date of

this order. Plaintiff is directed to pay this amount by mailing a

check or money order, payable to “Clerk, United States District

Court” in the amount of $400.00, to the following address: Office

of the Clerk of Court, United States Courthouse, 85 Marconi

Boulevard, Columbus, Ohio, 43215.

Plaintiff is advised that if he fails to pay the entire filing

fee within thirty days of the date of this order, this action will

be dismissed without prejudice for failure to prosecute, and he

will still be assessed the required filing fee. 

Date: October 16, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge 

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