United States District Court, E.D. Michigan, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DOC. 93]
CARAM STEEH, UNITED STATES DISTRICT JUDGE
Sean Michael Ryan filed his pro se complaint under 42 U.S.C.
§ 1983 and the Americans with Disabilities Act
(“ADA”), averring that his medical problems
interfere with his life in prison and his access to prison
services, and that defendants fail to properly accommodate
these disabilities. Specifically, plaintiff alleges
defendants mismanage his pain for various conditions across
multiple prison facilities. The parties filed several motions
that were referred to the magistrate judge for report and
recommendation (“R&R”). Plaintiff's
motions include: objection and motion to compel (Doc. 81);
request for schedule and deadlines (Doc. 87); request for
appointment of counsel (Doc. 88); request to expedite (Doc.
89); and request for extension of discovery (Doc. 90).
Defendants filed motions to revoke plaintiff's in
forma pauperis status and to dismiss (Doc. 83) and for
protective order (Doc. 84). For the reasons stated below, the
court adopts the R&R, grants defendants' motion to
revoke plaintiff's in forma pauperis status,
dismisses plaintiff's complaint without prejudice, and
denies the remaining motions as moot.
Prison Litigation Reform Act (“PLRA”) of 1996
contains a three strikes provision which prohibits a prisoner
from bringing an action without prepaying the filing fee if
the prisoner has more than three previous actions or appeals
that were dismissed for being frivolous, malicious or for
failure to state a claim. Where a prisoner's case falls
under the three-strikes bar, immediate dismissal is
appropriate. The only exception to this rule is where the
prisoner alleges an “immediate danger of serious
physical injury, ” also referred to as imminent danger.
28 U.S.C. § 1915(g).
magistrate judge found that plaintiff has had more than three
prior cases summarily dismissed for failure to state a claim
upon which relief can be granted. (Doc. 93, Pg ID 1290). The
magistrate judge also noted that plaintiff was incarcerated
at Carson City Correctional Facility (“DRF”) in
Carson City, Michigan at the time his complaint was filed.
Only three of the defendants, Holmes, Spurlling and Campbell,
work at DRF, while each of the other defendants works at a
different facility where plaintiff was previously housed.
Claims against non-DRF defendants cannot establish imminent
danger because those defendants no longer pose whatever
danger they posed in the past. “[T]he danger of serious
physical injury must exist at the time the complaint is filed
. . . Thus a prisoner's assertion that he or she faced
danger in the past is insufficient to invoke the
exception.” Vandiver v. Prison Health Servs.,
Inc., 727 F.3d 580, 585 (6th Cir. 2013)
magistrate judge found that plaintiff's allegations
against the DRF defendants were conclusory and lacked the
detail required of a properly pleaded complaint. Ultimately,
the magistrate judge concluded that plaintiff does not deny
having access to medical care; rather, he challenges the
wisdom of his doctors' chosen course of treatment.
Plaintiff's allegations were found to be insufficient to
invoke the imminent danger exception.
filed objections to the magistrate judge's report and
recommendation and defendants filed a response to those
objections. In addition, plaintiff filed a motion to amend
his objections to the report and recommendation (doc. 132).
The court grants plaintiff's motion to amend his
objections and will consider both the amended objections as
well as defendants' response and plaintiff's reply.
first objection is that the magistrate judge issued her
R&R prior to receiving plaintiff's timely filed
response. The court finds that the magistrate judge conducted
a fair and thorough analysis of plaintiff's complaint and
the applicable law, so any error committed by the magistrate
judge in failing to consider plaintiff's response was
harmless. In addition, to cure any possible prejudice to
plaintiff, this court incorporates plaintiff's response
brief in its review.
second objection is that he need not prove his allegations of
imminent danger at the pleading stage in order to survive
defendants' motion to revoke in forma pauperis
status. While this is true, plaintiffs must provide more than
conclusory allegations in their complaints. See Taylor v.
First Med. Mgmt., 508 Fed.Appx. 488, 492 (6th Cir.
2012). In his complaint, plaintiff makes general allegations
including that he is denied adequate pain medication, is not
being treated for his carpal tunnel syndrome, shoulder
injuries or spinal injuries, and that he suffers from severe
emotional problems. These allegations include no details of
the immediate danger plaintiff faces, such as the time and
place of danger, nature of pain, or actions of specific
defendants. Furthermore, none of the medical documents
attached by plaintiff to his complaint suggest that he is
suffering from any condition that poses a serious threat to
his health or a risk of death.
objection is expanded upon in plaintiff's amended
objections to provide additional information from a chronic
care medical report. Plaintiff refers to the report to
support his allegations of chronic pain with no treatment
plan in place. However, the medical report shows that Dr.
Holmes continued the treatment plan in place which includes
plaintiff receiving 500 MG of Naproxin for pain. Dr. Holmes
also ordered a mental health referral due to depression and a
follow up visit on January 30, 2018. This is further evidence
in support of the magistrate judge's conclusion that
plaintiff disagrees with the treatment plan of his doctors,
as opposed to evidence supporting plaintiff's allegation
that he is in imminent risk of immediate danger.
third objection is that he properly joined his claims against
the non-DRF defendants. The magistrate judge was correct in
only considering the allegations relating to the DRF
defendants in regard to establishing that plaintiff was or
was not in imminent danger. No error was made in severing the
non-DRF defendants for the sole purpose of conducting this
fourth objection asserts that the magistrate judge failed to
review all of his filings with regard to imminent danger. The
court does not find that any of the supplemental filings in
this case, including plaintiff's “Notice of
Imminent Danger” (doc. 8) cure the pleading
deficiencies found by the magistrate judge.
fifth, sixth and seventh objections, plaintiff states that he
was aware of his burden to overcome the three strikes
provision and to allege imminent danger. Plaintiff refers to
his complaint and to his Notice of Imminent Danger as the
documents that contain the allegations in support of the
imminent danger he faces in custody. There is nothing new
included in these three objections that provides a basis for
rejecting the magistrate judge's recommendation.
eighth objection, plaintiff cites the cases of two MDOC
inmates to support his contention that he has pled sufficient
facts to demonstrate imminent danger. Plaintiff's
allegations do not rise to the level of specificity or
seriousness as those alleged by the plaintiffs in
Northington v. Abdellatif, No. 16-CV-12931, 2017 WL
2240273 (E.D. Mich. Apr. 7, 2017), report and
recommendation adopted, 2017 WL 2225202 (E.D. Mich. May
22, 2017) or Vandiver, 727 F.3d at 583
(6th Cir. 2013). The allegations made by plaintiff
are more akin to those made in Ritter v. Weidman,
where the plaintiff was diagnosed with “cervical spine
nerve damage, degenerative cervical spinal disease, low back
spinal degenerative disease, and severe chronic pain.”
No. 2:11-CV-0826, 2011 WL 4712008, *1 (S.D. Ohio Oct 6,
2011), report and recommendation adopted, 2012 WL
604275 (S.D. Ohio Feb. 24, 2012). The Ritter court
concluded that disagreement with prison medical
personnel's treatment plan is insufficient to establish
imminent danger. Id. at *3.
court finds that plaintiff's remaining objection (the
second objection labeled “Objection #3”), that
the magistrate judge improperly recommended that the court
deny the other motions (docs. 81, 84, 87, 88, 89, and 90) as
moot, does not have merit. Having found that plaintiff does
not meet the imminent harm exception to the three strikes
provision, plaintiff's IFP status is properly revoked and
defendant's motion to dismiss is properly granted without
prejudice. Therefore, the remaining pending ...