UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHRISTOPHER FOSTER, Case No. 1:18-cv-247

Plaintiff,

Black, J.

vs. Bowman, M.J.

DONNELL PERRY, et al., REPORT AND

Defendants. RECOMMENDATION

Christopher Foster, an inmate at the Southern Ohio Correctional Facility (SOCF) and 

frequent filer in this Court,

1 brings this civil rights action against defendants Ohio Department 

of Rehabilitation and Correction, Gary Mohr, Roger Wilson, Southern Ohio Correctional 

Facility, and “All involved D.R.C. Staff.” (Doc. 1-1, Complaint at PageID 45). This matter is 

before the Court on Foster’s motion for leave to proceed in forma pauperis. (Doc. 1). 

Foster purports to bring this case as the head of a class action.2

 He seeks to represent a 

 1 In Foster v. Ohio, Case No. 1:16-cv-920 (S.D. Ohio Mar. 28, 2018) (Black, J.; Bowman, M.J.) (Doc. 98, p. 1 n.1), 

the undersigned recently provided the following summary of plaintiff’s prolific filing in the state and federal courts: 

See, e.g., Southern District of Ohio Case Nos: 1:14-cv-617; 1:14-cv-668; 1:14-cv-642; 1:15-cv-595; 1:15-

cv-713; 1:16-cv-835;1:16-cv-846 and Northern District of Ohio Case Nos. 3:15-cv-404; 3:16-cv-658; 3:16-

cv-2109; 3:16-cv-2168; 3:15-cv-2256; 3:16-cv-476; 3:16-cv-1535; 3:16-cv-1715. In addition, Plaintiff has 

filed at least fourteen cases in the Ohio Court of Claims alone, plus many additional cases in the Franklin 

Court of Common Pleas. Plaintiff has been sued by the Ohio Attorney General under Ohio Revised Code 

R.C. § 2323.52 for his vexatious litigation. See Ohio State Attorney General Mike Dewine v. Christopher 

Foster, Case No. 16-cv-2732. Plaintiff also has litigated five actions in the Ohio Supreme Court. (Doc. 80 

at 5-6). Not only has Plaintiff filed a large number of cases, but he inundates the courts with motions in the 

cases that he pursues. In the undersigned’s last R&R, I noted that Plaintiff had filed at least 29 motions in 

this case alone, (see Doc. 78, n.1). As of this writing, that number that has risen to 38 motions in this 

record alone, not including multiple non-motion filings. (See e.g., Docs. 76, 86, 87, 88, 92, 93, 94, 95, 97). 

In short, Plaintiff’s filings consume a disproportionately large amount of this Court’s judicial resources as 

compared to other pro se or even the prisoner litigant population at large.

2 This is not plaintiff’s first attempt to initiate a class action. On November 13, 2017, plaintiff sought to join a class 

action with two other inmates. See Brown v. State of Ohio, Case No. 1:17-cv-764 (S.D. Ohio Nov. 13, 2017) (Dlott, 

J.; Litkovitz, M.J.). Although plaintiff was not the purported head of the class action in that matter, the complaint 

submitted appears to be plaintiff’s handwriting. The complaint was dismissed pursuant to 28 U.S.C. § 1915, after 

the Court noted that the plaintiff could not advance the claims of Mr. Foster and the other purported class member. 

(See Doc. 4 at PageID 56; Doc. 5). Plaintiff also filed a motion to amend/correct his complaint in Case No. 1:16-cv920 in order to bring his case as a class action on behalf of all inmates at SOCF. On March 28, 2018, the 

undersigned recommended that plaintiff’s motion be denied and that plaintiff’s complaint should be limited to 

alleged violations of his own federal rights. 

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class consisting of himself and five other SOCF inmates, Donnell Perry, Matthew Hinston, 

Mark Hinston, Ronald Price, and Maurice French. (See Doc. 1-1, Complaint at PageID 45, 

63). Foster claims that he initiated this action after he “came across several others that have 

issues that support the conclusion of widespread neglect, brutality, deliberate indifference, and 

overall cruel and unusual punishment.” (Id. at PageID 47–48). 

As an initial matter and as Foster is aware, see supra n.2, he “lacks standing to assert the 

constitutional rights of other prisoners” and is not permitted as a pro se litigant to bring a class

action lawsuit concerning prison conditions. See Dodson v. Wilkinson, 304 F. App’x 434, 438 

(6th Cir. 2008) (and cases cited therein); see also White v. Kasich, No. 2:12-cv-1125, 2013 WL 

941440, at *10 (S.D. Ohio Mar. 8, 2013) (Deavers, M.J.) (Report & Recommendation) 

(explaining that the reason pro se prisoners are generally prohibited from bringing class actions

is because they are unable to “adequately to represent the interests of the class”), adopted, 2013 

WL 1281887 (S.D. Ohio Mar. 27, 2013) (Smith, J.); Brown v. Collins, No. 2:07-cv-826, 2008 

WL 818793, at *2 (S.D. Ohio Mar. 24, 2008) (Kemp, M.J.; Frost, J.) (citing Palasty v. Hawk, 15 

F. App’x 197, 200 (6th Cir. 2001)) (same); Marcum v. Jones, No. 1:06-cv-108, 2006 WL 

543714, at *1 (S.D. Ohio Mar. 3, 2006) (Dlott, J.) (and cases cited therein) (holding that the pro

se inmate “may bring his own claims to federal court without counsel, but not the claims of 

others”). Therefore, Foster’s complaint should be limited to alleged violations of his own federal 

rights. Cf. Dodson, 304 F. App’x at 438.

Furthermore, to the extent that the other individuals named as plaintiffs in this case seek 

to join Foster in this action, they have not paid the filing fee, moved for leave to proceed in 

forma pauperis, or signed the complaint. See Fed. R. Civ. P. 11. In any event, the allegations set 

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forth relating to the additional purported plaintiffs involve the actions of different SOCF 

employees, arise out of different transactions or occurrences, and involve distinct questions of 

law and fact. See Fed. R. Civ. P. 20(a)(1).3 See also Crawford v. Prison Health Services, No. 

1:12-cv-409, 2012 WL 4740219, at *1 (W.D. Mich. Oct. 3, 2012) (noting that multiple plaintiffs 

cannot pass the two-part test of Rule 20(a)(1) where each plaintiff provides a different factual 

background giving rise to their “mutual” cause of action). 

As discussed below, Foster’s allegations in the complaint relate to a March 19, 2018 

attack by approximately nine officers and Lieutenants Joseph and Setty and several threats that 

preceded it. With respect to the other purported plaintiffs, Foster alleges Perry was attacked by 

recreation supervisor Mummert and officers Hitch and Easter on February 25, 2018. (See Doc. 

1-1 Complaint at PageID 48, 65). Plaintiff claims Mark and Matthew Hinston went on a hunger 

strike in response to prison conditions and alleged inadequate access to inmate mail. (Id. at 

PageID 49–51). With respect to French, plaintiff alleges that French went on suicide watch after 

witnessing another inmate’s death and in response to prison conditions at SOCF. (Id. at PageID 

52–53). Foster claims that Price’s relationships suffer due to his difficulty accessing his mail 

through the prisons J-pay mail system. (Id. at PageID 53–54). Although Foster generally alleges

that he also experiences the alleged conditions, the allegations regarding the other purported 

plaintiffs involve the actions of different individuals, arise out of different transactions or 

occurrences, and involve distinct questions of law and fact. Accordingly, if the purported 

plaintiffs wish to seek relief in this Court they may file their own complaint and seek leave to 

proceed in forma pauperis or pay the filing fee required to commence a civil suit. See Fed. R. 

 3 Fed. R. Civ. P. 20(a)(1) allows permissive joinder of plaintiffs in a single action if: (A) they assert any right to 

relief jointly, severally, or in the alternative with respect to or arising of the same transaction, occurrence, or series 

of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. 

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Civ. P. 21. 

Turning to Foster’s motion for leave to proceed in forma pauperis, 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. Foster 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 at the screening stage for failure to state a claim upon which relief may be granted. 

See, e.g., Christopher Foster v. City of Cincinnati, et al., Case No. 1:14-cv-617 (S.D. Ohio June 

22, 2015) (Barrett, J.; Bowman, M.J.) (Docs. 4, 20, 23-24); Christopher Foster v. State of Ohio, 

et al., Case No. 1:14-cv-668 (S.D. Ohio Nov. 3, 2014) (Beckwith, J.; Litkovitz, M.J.) (Docs. 4, 

7-8); Christopher Foster v. Hamilton Cnty., et al., Case No. 1:14-cv-642 (S.D. Ohio Oct. 20, 

2014) (Black, J.; Litkovitz, M.J.) (Docs. 4, 7-8). The previous three screening dismissals prevent 

the Foster from obtaining pauper status in the instant action. 

In view of his three “strikes,” Mr. Foster 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 

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 

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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 

(5th 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.

In this case, Foster alleges that he was attacked by SOCF staff on March 19, 2018.4 Prior 

to the attack, plaintiff alleges that C/O Johnson threatened his life, before showing up to his cell 

with a can of mace. According to Foster, he could only protect himself by expelling the contents 

of his toilet at Johnson. Foster further alleges that he refused Johnson and Sgt. Smoot’s efforts 

“to get Foster to put on handcuffs to pull him out of the cell and kill him.” (Id. at PageID 56). 

During this time Foster alleges that Johnson said “I told you I was going to kill you.” (Id.). 

Foster claims that Smoot subsequently emptied a quart-sized can of pepper spray into his cell. 

 4 Without any factual elaboration, plaintiff also claims he was attacked on February 8th, 9th, and 21st. However the 

only allegations concerning these dates are that “on the 9th, C.O. Johnson made it clear that he wanted to be the one 

to harm Foster. On or about the 23rd at 1:45 PM (1345) of February he said something to this degree.” (Doc. 1-1, 

PageID at 55). 

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Foster further claims Smoot and Johnson “[b]ragged that they were preparing to kill Foster.” (Id.

at PageID 57). 

Approximately thirty to sixty minutes later, Lieutenants Setty and Jason Joseph came to 

Foster’s cell with a wheelchair and a handheld camera, according to the complaint. Foster claims 

he was handcuffed and shackled, before Setty and Joseph began to transport him to K-2. During 

the course of the transfer, however, Foster claims that Joseph and Neff devised a plan to attack 

him. According to Foster, Joseph falsely stated that Foster was experiencing chest pains so that 

he could transport him to the infirmary. Joseph allegedly told Foster “that he was about to be 

dealt with for the lawsuits and because he did not cuff up for him when he tried to kill Foster the 

first time Foster came to Lucasville.” (Id. at Page 58). According to Foster, once in the 

infirmary he was attacked by approximately nine correctional officers in helmets and riot gear, 

along with Lieutenants Setty and Joseph. Plaintiff alleges that “Deputy Warden Cool and Major 

Warren told Foster they are preparing to make it look good and murder him or otherwise send 

him to O.S.V..” (Id. at PageID 59). 

Following the attack, Foster claims he was transported to K-2 and placed in a suicide cell 

despite the fact that he was not suicidal. Foster claims that Englehart and Hutchinson denied him 

meals while in K-2. Approximately a week before the attack, on March 10, 2018, Foster claims 

that officers slammed his hand in the food hatch. He further alleges that the nurse charged him 

for looking at his hand out of retaliation. When he did receive food, Foster claims that “he 

received punishment meals that were consisting of what appeared to be smashed up food in a 

disgusting pile, with orange pills all inside of it. Foster attempted to eat the food but his mouth 

went numb literally on the first bite, he could not tell if it was pills or just the flavor of the orange

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peels but—pills as in drugs—it was spat out and [i]nedible.” (Id. at PageID 60). Foster claims 

this persisted from March 8 until March 20 or 21, 2018.5

 

The Court is unable to discern from Foster’s complaint any factual allegations suggesting 

he was in imminent danger of serious physical injury at the time he filed his complaint. As noted 

above, Foster claims that he was threatened prior to and during an attack that occurred on March 

19, 2018 and was denied meals and/or retaliated against from March 8 to March 21, 2018. While 

Foster’s allegations are serious, they are insufficient to satisfy the imminent danger because they 

concern past harms. Rittner v. Kinder, 290 F. App’x 796, 797 (6th Cir. 2008) (“a prisoner’s 

assertion that he or she faced danger in the past is insufficient to invoke the [imminent danger] 

exception”). 

Foster’s general or conclusory allegations of “contemporaneous imminent danger” are 

also insufficient to meet the standard. Foster appears to be of the belief that the conditions at 

SOCF have resulted in an ongoing state of imminent danger.6

 However, a plaintiff who seeks to 

invoke the imminent danger exception must allege particular facts showing immediate or 

impending serious physical injury in existence at the time he commenced this action. See e.g., 

Calton v. Wright, No. 6:12-cv-344, 2012 WL 3135682, at *2 (E.D. Texas Aug. 1, 2012) 

(rejecting an “ongoing danger theory” resulting from past events on the basis that this theory 

would provide a blanket exception to 28 U.S.C. § 1915(g)). Furthermore, to the extent that 

 5 The complaint also includes allegations regarding Foster’s confinement in the limited privileges unit, that he has 

witnessed guard brutality against other inmates, as well as allegations related to his access to showers, exercise time, 

phone, legal mail, and commissary. As he has in his prior complaints, Foster claims that his cell is not wheelchair 

accessible. See e.g., Foster v. Ohio, Case No. 1:16-cv-920 (S.D. Ohio Sept. 13, 2016) (Black, J.; Bowman, M.J.).

6 Foster summarizes this case as “a matter of contemporaneous imminent danger in class action” and claims that 

“[t]he imminent contemporaneous danger is a wide-spread customary implication of the Lucasville Dept. of Rehab. 

& Corr. Facility’s structure and routine interactions between staff and prisoners. The imminent contemporaneous 

danger has increased and become a reoccurring event.” (Doc. 1-1, Complaint at PageID 46, 62). 

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Foster may contend that he is subject to imminent physical danger based on ongoing retaliation 

or harassment due to his filing prior lawsuits, his allegations are also insufficient. See Abdul, 

239 F.3d at 315, n.1 (rejecting an imminent danger claim based on allegations that the plaintiff 

was pepper sprayed, combined with claims that prison officials engaged in “continuing 

harassment, plots to hurt or kill him, and other forms of retaliation”); Avent v. Fisher, No. 9:07-

cv-1135, 2008 WL 5000041, at *6 (N.D.N.Y. Nov. 20, 2008) (noting that while it may be 

conceivable that a past assault “with a specific threat of another such assault in the near future, 

may suffice to allege an ‘imminent danger’ on the date of filing . . . unless the prospect of such a 

future assault is so specific and/or likely as to be deemed real, such an allegation will not suffice 

to allege an ‘imminent danger’ on the date of filing.’”). Thus, although the complaint includes 

allegations that officers have retaliated against him and threatened him prior to the March 19, 

2018 attack, the complaint fails to allege particular facts showing any immediate or impending 

serious physical injury in existence at the time he commenced this action.

In fact, in Foster v. State of Ohio, No. 3:15-cv-2256 (N.D. Ohio Feb. 11, 2016), the Court 

found that Foster’s similar allegations in that case—that corrections officers “have made it clear 

they are trying to kill me” following a prior attack and put unknown food substances in his meals 

—provided no indication that Foster was in imminent danger at the time he filed the complaint. 

See Foster, No. 3:15-cv-2256 (Doc. 7 at PageID 28–29; Doc. 10). Foster has similarly failed to 

allege particular facts suggesting he was in imminent danger of serious physical harm at the time 

he filed his complaint in this case. Accordingly, Foster does not meet the exception to the “three 

strikes” rule set forth in 28 U.S.C. § 1915(g).

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IT IS THEREFORE RECOMMENDED THAT: 

1. Foster’s motion to proceed in forma pauperis (Doc. 1) be DENIED.

2. Foster 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 Foster 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). 

3. 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).

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHRISTOPHER FOSTER, Case No. 1:18-cv-247

Plaintiff,

Black, J.

vs. Bowman, M.J.

DONNELL PERRY, 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).

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