Filed: Oct. 21, 2019
Latest Update: Oct. 21, 2019
Summary: REPORT AND RECOMMENDATION KAREN L. LITKOVITZ , Magistrate Judge . Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and frequent filer in this Court, 1 has filed a prisoner civil rights action under 42 U.S.C. 1983. On August 30, 2019, the Court granted defendants' motion for summary judgment and entered judgment on their behalf. (Doc. 53). Plaintiff/appellant has now filed a notice of appeal and motion for leave to appeal in forma pauperis from the Court'
Summary: REPORT AND RECOMMENDATION KAREN L. LITKOVITZ , Magistrate Judge . Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and frequent filer in this Court, 1 has filed a prisoner civil rights action under 42 U.S.C. 1983. On August 30, 2019, the Court granted defendants' motion for summary judgment and entered judgment on their behalf. (Doc. 53). Plaintiff/appellant has now filed a notice of appeal and motion for leave to appeal in forma pauperis from the Court's..
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REPORT AND RECOMMENDATION
KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff Jerone McDougald, an inmate at the Southern Ohio Correctional Facility and frequent filer in this Court,1 has filed a prisoner civil rights action under 42 U.S.C. § 1983. On August 30, 2019, the Court granted defendants' motion for summary judgment and entered judgment on their behalf. (Doc. 53). Plaintiff/appellant has now filed a notice of appeal and motion for leave to appeal in forma pauperis from the Court's order. (Docs. 55, 56).
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. 1:16cv-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 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.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff/appellant's motion to proceed on appeal in forma pauperis (Doc. 56) be DENIED.
