Opinion
Case No. 2:19-cv-257
10-21-2019
JEROME MCDOUGALD, Plaintiff/Appellant, v. ANDREW EDDY, et al., Defendants.
Black, J.
REPORT AND RECOMMENDATION
Plaintiff Jerome McDougald, who is currently incarcerated at the Toledo Correctional Institution (ToCI) and a frequent filer in this Court, filed an action under 42 U.S.C. § 1983 alleging violations of his civil rights while he was incarcerated at the Southern Ohio Correctional Facility. On April 22, 2019, the Court entered an Order denying plaintiff's motion for leave to proceed in forma pauperis on account of his having filed three or more prior complaints that have been dismissed with prejudice for failure to state a claim and his having failed to meet the statutory exception set forth in 28 U.S.C. § 1915(g). (Doc. 6). Plaintiff/appellant filed a notice of appeal on April 29, 2019. (Doc. 7). On August 23, 2019, plaintiff's appeal was dismissed by the Sixth Circuit Court of Appeals for want of prosecution. (Doc. 12).
As of this date, plaintiff has filed over 20 cases in the Southern District of Ohio. See McDougald v. Erdos, 1:19-cv-107 (TSB: SKB) (S.D. Ohio Feb. 11, 2019); McDougald v. Eddy, 2:19-cv-257 (TSB; SKB) (S.D. Ohio Jan. 25, 2019); McDougald v. Smoot, 1:19-cv-50 (SJD; KLL) (S.D. Ohio Jan. 22, 2019); McDougald v. Bear, 1:18-cv-498 (TSB; KLL) (S.D. Ohio July 23, 2018); 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 (SJD; 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 (SJD; SKB) (S.D. Ohio Apr. 28, 2016); McDougald v. Esham, 1:16-cv-497 (SJD; KLL) (S.D. Ohio Apr. 27, 2016); McDougald v. Mahlman, 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).
An envelope attached to plaintiff's most recent filing (Doc. 15) indicates that he is currently incarcerated at ToCI. For the ease of reference, the Clerk of Court is DIRECTED to update the docket sheet with plaintiff's current mailing address. --------
On September 6, 2019, the Court entered an Order directing plaintiff to comply with the Court's April 22, 2019 Order to pay the full $400 filing fee within thirty (30) days and advising plaintiff that failure to pay the full $400 filing fee within thirty (30) days would result in the dismissal of his action. (Doc. 13). Plaintiff/appellant has filed a notice of appeal and motion for leave to appeal in forma pauperis. (Docs. 14, 15).
Plaintiff/appellant's motion for leave to appeal in forma pauperis should be denied on the ground that plaintiff/appellant is prohibited from obtaining pauper status on appeal pursuant to the "three strikes" provision set forth in 28 U.S.C. § 1915(g). 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 on appeal 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(e)(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 on appeal 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." "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. See also Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998) (finding that the prisoner appellant was not entitled to pauper status on appeal where he failed to establish that he faced imminent danger of serious physical injury at the time the appeal was filed).
Plaintiff/appellant has failed to allege (see Doc. 14, at PageID 58) particular facts showing any immediate or impending serious physical injury in existence at the time he filed his notice of appeal, which would enable him to proceed on appeal in forma paupers despite his prior three strikes. See 28 U.S.C. § 1915(g). See also Gresham v. Meden, 938 F.3d 847 (6th Cir. 2019) (limiting "serious physical injury" exception to injuries that have "potentially dangerous consequences such as death or severe bodily harm"); McDougald v. Eddy, No. 19-3405 (6th Cir. Jul. 10, 2019) (denying Mr. McDougald leave to proceed in forma pauperis on appeal). Accordingly, plaintiff/appellant is not entitled to proceed on appeal without paying the filing fee.
It is therefore RECOMMENDED that plaintiff/appellant's motion to proceed in forma pauperis on appeal (Doc. 15) be DENIED.
s/Stephanie K . Bowman
Stephanie K. Bowman
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. 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).