UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RICO ISAIH HAIRSTON, 

Plaintiff, 

 Civil Action 2:18-cv-952 

 v. Judge George C. Smith 

 Magistrate Judge Elizabeth P. Deavers 

MR. DAILY, et al., 

Defendants. 

 

REPORT AND RECOMMENDATION

Plaintiff, a state inmate proceeding without the assistance of counsel, brings this prisoner 

civil rights action under 42 U.S.C. § 1983. (ECF No. 1-1.) Plaintiff seeks leave of Court to 

initiate this action without prepayment of fees or costs. (ECF No. 1.) For the reasons that 

follow, it is RECOMMENDED that Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 

1) be DENIED. 

I. 

The Prisoner Litigation Reform Act (“PLRA”) limits a prisoner’s ability to proceed in 

forma pauperis if the prisoner has had three or more prior cases dismissed on the grounds that 

they were frivolous or malicious: 

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). In interpreting the language of this section, the United States Court of 

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Appeals for the Sixth Circuit has held that claims dismissed as frivolous or for failure to state a 

claim both count as strikes under § 1915(g). Pointer v. Wilkinson, 502 F.3d 369, 373 (6th Cir. 

2007) (“The text of § 1915(b) draws no distinction between claims dismissed as frivolous or for 

failure to state a claim; both types of dismissals count as a strike”). 

 As the language of § 1915(g) indicates, the three-strikes provision will not apply if a 

“prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The 

Sixth Circuit describes the requirements for a claim of imminent danger as follows: 

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 

Fed.Appx. 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 

Fed.Appx. [601] at 492 [(6th Cir. 2012)] (“Allegations of past dangers are 

insufficient to invoke the exception.”); Percival v. Gerth, 443 Fed.Appx. 944, 946 

(6th Cir. 2011) (“Assertions of past danger will not satisfy the ‘imminent danger’ 

exception.”); cf. Pointer, 502 F.3d at 371 n. 1 (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 Fed.Appx. at 798 

(internal quotation marks and citations omitted); see also Taylor, 508 Fed.Appx. at 

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

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

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

II. 

 The Undersigned concludes that Plaintiff has accumulated three strikes within the 

meaning of 28 U.S.C. § 1915(g) of the PLRA. After conducting a review of the records of the 

United States Courts, the Court has found at least three cases that qualify as strikes under the 

three-strikes provision: 

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Hairston v. Emeaghara, No. 2:18-cv-951 (S.D. Ohio): Dismissed on October 22, 2018, 

for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 

1915(e)(2)(B); 

Hairston v. Harris, No. 2:17-cv-421 (S.D. Ohio): Dismissed on January 5, 2018, for 

failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and 1915A and; 

Hairston v. Franklin County Court of Common Pleas of the City of Columbus, No. 2:17-

cv-362 (S.D. Ohio): Dismissed on January 24, 2018, for failure to state a claim upon 

which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. 

Each of the three cases was before the United States District Court; each was dismissed for 

failure to state a claim upon which relief may be granted. Thus, Plaintiff must pay the full filing 

fee in this case unless the “imminent danger” exception applies to the facts he has presented in 

his Complaint. 

 A review of Plaintiff’s Complaint (ECF No. 1-1) reveals that he is not in imminent 

danger of serious physical injury. Plaintiff alleges that he was exposed to second-hand smoke 

while incarcerated at the Correctional Reception Center (“CRC”), in violation of his rights under 

the Eighth Amendment to the United States Constitution. (See generally id.) He specifically 

alleges that Defendants Messrs. Daily and Marchand, corrections officers at CRC, smoked 

outside the facility on various occasions in July 2018 (and, although it is not clear, perhaps in the 

preceding six months as well as on August 6, 2018), resulting in Plaintiff’s injury. (Id.)1

 

 

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Plaintiff filed his Motion to Proceed In Forma Pauperis on August 24, 2018 (ECF No. 1). 

After two Notices of Deficiency (ECF Nos. 2 and 4), Plaintiff filed his certified trust fund 

account statement (ECF No. 7) on October 9, 2018. The docket also reflects that prior to the 

filing of that account statement, Plaintiff was transferred from CMC to Toledo Correctional 

Institution on August 30, 2018, and therefore no longer exposed to second hand smoke at CMC. 

(ECF No. 5.) Cf. Reed v. Geo Grp., No. 3:18-cv-191, 2018 WL 2227217, at *2 (N.D. Fla. Apr. 

12, 2018) (“As plaintiff’s allegations [related to environmental tobacco smoke] concern events 

and individuals at a prior place of confinement, the complaint does not demonstrate plaintiff is 

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However, these alleged incidents pre-date the filing of his action. As set forth above, 

allegations of past danger do not satisfy the “imminent danger” exception. See, e.g., Vandiver, 

727 F.3d at 585; Taylor, 508 F. App’x at 492; Percival, 443 F. App’x at 946. Moreover, other 

courts have held that exposure to second-hand smoke does not constitute an “imminent” danger 

under 28 U.S.C. § 1915(g). See, e.g., Foster v. Unidentified Party, No. 01-40349, 2002 WL 

663757, at *1 (5th Cir. Apr. 1, 2002) (affirming district court dismissal under § 1915(g) where 

the plaintiff, who alleged that the “defendants negligently subjected him to second-hand smoke 

by failing to enforce a no-smoking policy[,]” failed to show he was under imminent danger of 

serious physical harm); Hart v. Sec’y, Fla. Dep’t of Corr., No. 4:18-cv-322, 2018 WL 4471747, 

at *1 (N.D. Fla. Sept. 18, 2018) (stating that “exposure to tobacco smoke can cause serious 

physical injury, even death[, but that] [m]ost tobacco-caused serious physical injuries result from 

long-term exposure and cannot fairly be characterized as imminent” and finding that the plaintiff 

is not entitled to proceed in forma pauperis under § 1915(g)); Johnson v. Mercer, No. 4:13-cv321, 2013 WL 4549052, at *1 (N.D. Fla. Aug. 28, 2013) (“Second-hand smoke does pose a risk 

of serious physical injury, but the risk is not sufficiently imminent to qualify under § 1915(g).”); 

Wilson v. Riley, No. 2:07-cv-891-WKW, 2007 WL 3120133, at *1 (M.D. Ala. Oct. 23, 2007) 

(“While second hand smoke can cause health problems, these potential ailments are not 

sufficiently imminent to allow Wilson an exception to the frequent filer provision of 28 U.S.C. 

[§] 1915(g).”). 

For all of these reasons, Plaintiff has not alleged an imminent, real, and proximate danger 

 

under imminent danger of serious physical injury. Even without regard to his present state of 

confinement, the allegations do not show imminent danger.”). 

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of serious physical injury so as to qualify for in forma pauperis status under the exception the 

three strikes provision of 28 U.S.C. § 1915(g). Accordingly, the “imminent danger” exception 

to § 1915(g) does not apply. Because Plaintiff does not qualify for the imminent danger 

exception to the three-strikes provision of the PLRA, he must pay the full filing fee for this case 

to proceed. 

III. 

 Because Plaintiff has accumulated three strikes within the meaning of § 1915(g) and he is 

not in imminent danger of serious physical injury, the PLRA precludes Plaintiff from proceeding 

in forma pauperis. Accordingly, it is RECOMMENDED that Plaintiff’s Motion to Proceed In 

Forma Pauperis (ECF No. 1) be DENIED; that Plaintiff be required to pay the entire $400 filing 

fee within THIRTY (30) DAYS of an Order adopting this Report and Recommendation; and 

that Plaintiff be notified that his failure to pay the full fee within thirty (30) days will result in the 

dismissal of the action. See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002). It is FURTHER 

RECOMMENDED that 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 and therefore deny Plaintiff leave to appeal in forma pauperis. See 

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

IV. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

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Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate 

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the 

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). 

Date: November 5, 2018 /s/ Elizabeth A. Preston Deavers 

 ELIZABETH A. PRESTON DEAVERS 

 UNITED STATES MAGISTRATE JUDGE 

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