Alford v. Hawk et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Brian Keith Alford,
Plaintiff,
V.
Dr. Hawk, et al.,
Defendants.
Case No. 2:25-cv-187
Judge Michael H. Watson
Magistrate Judge Silvain, Jr.
OPINION AND ORDER
Brian Keith Alford ("Plaintiff"), a prisoner proceeding without the assistance
of counsel, moves for leave to proceed without the prepayment of fees ("in forma
pauperis"). Mot. IFP, ECF No. 7.
The Magistrate Judge issued a Report and Recommendation ("R&R"),
recommending that the Court deny Plaintiff leave to proceed in forma pauperis.
See generally R&R, ECF No. 14. The R&R concludes that Plaintiff has garnered
"three strikes" under the Prison Litigation Reform Act ("PLRA") and did not plead
that he was in imminent danger, such that 28 U. S. C. § 1915(g) prohibits in forma
pauperis status. Id. Specifically, the R&R concludes that Plaintiff pleaded in the
Amended Complaint that he had received some medical treatment and alleged,
at most, that he was awaiting surgery but failed to allege that surgery had been
prescribed in the first place. Id. at 5-6.
Plaintiff objects. Obj, ECF No. 16.
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Pursuant to Federal Rule of Civil Procedure 72(b), the Court reviews de
novo those portions of the R&R to which Plaintiff properly objected.
On objection, Plaintiff concedes that he has obtained "three strikes" but
argues that he sufficiently pleaded that he was, and remains, under a threat of
serious bodily injury, which removes him from the prohibition against proceeding
in forma pauperis. Obj. 2, ECF No. 16. Namely, Plaintiff argues that his medical
conditions continue to this day, including that he still passes blood in his urine.
Id. at 6.
Under the PLRA, a prisoner who has obtained three strikes for bringing
actions that were frivolous, were malicious, or failed to state a claim cannot
proceed in forma pauperis on further actions unless the prisoner "is under
imminent danger of serious physical injury. " 28 U. S. C. § 1915(g). Pursuant to
the imminent-danger exception, "a plaintiff must only allege facts from which a
court, informed by its judicial experience and common sense, could draw a
reasonable inference that the plaintiff was in danger when he filed the complaint."
Ware-Mustapha v. Dixon, No. 23-5605, 2024 WL 1505089, at *1 (6th Cir. Apr. 3,
2024) (citation omitted). "[T]he PLRA's imminent-danger exception does not
require a prisoner to allege or show that a life-threatening ailment poses an
imminent danger to him; rather, it requires only that the prisoner allege that there
is an imminent danger of a 'serious physical injury'to him. " Ryan v. G. Robert
Cotton Corn Fac., No. 20-1305. 2020 WL 9258300. at *3 (6th Cir. Dec. 8, 2020)
(citations omitted). Untreated or inadequately treated chronic medical conditions
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satisfy that requirement. Id. (citation omitted). Moreover, "[t]his Court must
liberally construe a prisoner's claim that he qualifies for the imminent-danger
exception. " Id. at *2 (citation omitted).
In an abundance of caution, the Court SUSTAINS Plaintiff's objections.
The original Complaint and Amended Complaint are largely similar. In them,
Plaintiff alleges that in mid-December 2024, he could not urinate for several days
and yet was not immediately seen for treatment. Compl., ECF No. 2 at PAGEID
# 5; Am. Compl. ^ 10, ECF No. 8. On December 10, he sought immediate
medical attention and was eventually given a catheter, which resulted in the
release of blood and urine. Id. Plaintiff was provided with antibiotics and pain
medication, but, over the next two weeks, Plaintiff lost thirty-six pounds and
suffered extreme pain. Id. He was transferred to the Ohio State James Medical
Center on December 23 and remained hospitalized for five days; CT scans
revealed that Plaintiff had a double kidney infection, a blood clot on his left lung,
and a cyst on his left kidney. Id.
Plaintiff was released back to prison on December 27 but remained in the
medical unit until January 2, 2025, when he was released back into general
population. Id. In the original Complaint, which Plaintiff filed about two months
after his release to general population, Plaintiff alleges that he "remains cathed in
great pain, without pain medication, and uncertainty about his future[. ]" Compl.,
ECF No. 1 at PAGEID # 8.
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In the Amended Complaint, which Plaintiff filed about six months after that,
Plaintiff alleges that he was given various types of catheters between January
and July 2025. Am. Compl. ^ 10, ECF No. 8. During that time, Plaintiff's
prostate-specific antigen levels had risen, and he has since been awaiting
prostate surgery. Id. ^ 10-11. He alleges that he has been denied medication
and that the delay in surgery could cause "kidney failure or possible death[. ]" Id.
1T11.
In both Complaints, Plaintiff seeks damages and injunctive relief-
apparently in the form of transfer to a medical facility such as Frazier Health
Center. See, e. g.. Am. Compl., ECF No. 8-1 at PAGEID ## 46-47, 55-57.
Construed liberally, these Complaints allege that Plaintiff remains in
significant pain, is being denied necessary medication, and requires immediate
surgery that is nonetheless being delayed. Those allegations sufficiently allege
an imminent danger of serious physical injury.
Accordingly, the Court SUSTAINS Plaintiff's objections and RETURNS the
matter to the Magistrate Judge with directions to: (1) proceed with a review of
Plaintiff's motion for leave to proceed in forma pauperis given the Court's finding
of satisfaction of the imminent danger exception, and (2) if the Magistrate Judge
finds the remainder of that application sufficient and grants in forma pauperis
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status, perform an initial screen of the Amended Complaint under 28 U. S. C.
§1915(e).1
The Clerk shall terminate ECF Nos. 10, 14, and 15 as pending motions.
IT IS SO ORDERED.
ICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
1 Plaintiff's second motion for leave to proceed in forma pauperis and motion for
extension of time to file objections, ECF Nos. 10 and 15, are DENIED as moot.
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