Dyer et al v. Sheriff of Montgomery County Jail et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISIONAT DAYTON
MICHAEL D. DYER, e?5/.,
Plaintiffs,
V.
SHERIFF OF
MONTGOMERY COUNTS,
OHIO, JAIL, e?5/.,
Defendants.
Case No. 3:24-cv-300
Judge Walter H. Rice
Mag. Judge Caroline H. Gentry
ORDER ADOPTING REPORT AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE (DOC. #9), OVERRULING
OBJECTIONS THERETO OF PLAINTIFF MICHAEL D. DYER (DOC. #10),
OVERRULING DYER'S MOTION TO PROCEED IN FORMA PAUPERIS
(DOC. #1) AND SUPPLEMENTAL MOTION TO PROCEED IN FORMA
PAUPEH/S (DOC. #3), AND OVERRULING AS PREMATURE WITHOUT
PREJUDGE TO REFILING DYER'S APPLICATIONS TO THE CLERK OF
COURT FOR ENTRY OF DEFAULT AND MOTIONS FOR DEFAULT
JUDGMENT (DOCS. #5, 6, 28), MOTION FOR SUMMARY JUDGMENT
(DOC. #7), AND MOTION FOR DISCOVERY (DOC. #19); PAYMENT OF
THE FILING FEE OF $405. 00 BY DYER AND REMAINING PLAINTIFFS
MUST BE MADE WITHIN FORTY-FIVE (45) DAYS OF ENTRY
PURSUANT TO INSTRUCTIONS SET FORTH HEREIN, OR ELSE THE
CASE WILL BE TERMINATED
This matter is before the Court on Plaintiff Michael D. Dyer's initial and
Amended Motions to Proceed In Forma Pauperise? Motions, Docs. #1, 3),
Applications to the Clerk of Court for Entry of Default and Motions for Default
Judgment ("Default Motions, " Docs. #5, 6, 28), Motion for Summary Judgment
(Doc. #7), and Motion for Discovery (Doc. #19), the Magistrate Judge's Report and
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Recommendations, wherein she recommends that the IFF Motions be overruled
and the remaining motions overruled as premature (Doc. #9), and Dyer's
Objections to the Report. (Doc. #10).
Dyer and eighteen other Plaintiffs1 seek to proceed in forma pauperism a
Complaint against Montgomery County, Ohio, Sheriff Rob Streck and other
County officials and employees with respect to the conditions at the Montgomery
County, Ohio, Jail. (Compl., Doc. #1-1). On both April 9 and May 8, 2025, Dyer
filed combined Applications to the Clerk of Court for Entry of Default and Motions
for Default Judgment (Docs. #5, 6), and on June 16, 2025, Dyed moved for
summary judgment. (Doc. #7). Dyer filed a renewed Default Motion on February
9, 2026. (Doc. #28).
On August 1, 2025, the Magistrate Judge issued the Report and
Recommendations, wherein she recommended that the IFP Motions be overruled
and the first two Default and Summary Judgment Motions be overruled as
premature. (Doc. #9, PAGEID 107, citing Docs. #1, 3, 5, 6, 7). The Magistrate
Judge reached that conclusion because at least three federal lawsuits wherein
Dyer proceeded in forma pau peris >M\\\\e incarcerated were dismissed as frivolous,
malicious, or for failure to state a claim. (Id. at PAGEID 109-10 (collecting cases)).2
Accordingly, the Magistrate Judge concluded, Dyer had accumulated at least
1 A twentieth Plaintiff, Steven Flitton, died after the IFF Motions and Complaint were filed.
2 In his Amended IFF Motion, Dyer concedes that at least five federal lawsuits that he filed
previously while incarcerated were dismissed. (Doc. #3, PAGEID 77).
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three "strikes" under the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U. S. C.
§ 1915(g), and did not meet "the PLRA's narrow exception for prisoners 'under
imminent danger of serious physical injury' caused by the issues raised in the
complaint. " {Id. at PAGEID 110, quoting 28 U. S. C. § 1915(g)). Specifically, the
Magistrate Judge noted that "Dyer is no longer in custody at the Montgomery
County Jail[; and h]e was not in custody there when he filed the Complaint. " {Id.,
citing Pointer v. Wilkinson, 502 F. 3d 369, 371 n. 1 (6th Cir. 2007). Consequently, the
Magistrate Judge recommended that Dyer not be permitted to proceed in forma
pauperis, and recommended that the Court order Dyer to pay a pro /-ate share of
the filing fee within thirty (30) days. (Id. at PAGEID 111). "Dyer should be aware,
however, that if not all the named Plaintiffs choose to move forward with this
case, his share will increase, and he may owe an additional amount of the filing
costs. " (Id. }. The Magistrate Judge further recommended that the Court overrule
the Default and Summary Judgment Motions as premature, as "[t]he case has not
yet proceeded past the threshold issue concerning the filing costs. " {Id. }.
In his Objections, Dyer does not dispute that he has accumulated at least
three dismissals, but argues that the black mold to which he and other Plaintiffs
were exposed put them in imminent danger of serious injury, which Dyer argues
is measured "at the time of incident. " (Doc. #10, PAGEID 114, citing Abdul-Akbar
v. McKelvie, 239 F. 3d 307, 311 (3d Cir. 2000) [en bane); Gibbs v. Roman. 116 F. 3d
83, 86 (3d Cir. 1997). Accordingly, Dyer claims, he comes within the "imminent
danger" exception and should be allowed to proceed in forma pauperis. [Id. ).
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Alternatively, Dyer asserts that the mere fact that his previous IFP lawsuits were
dismissed does not render them per $e frivolous, and, thus, he may not have
accumulated three strikes under the PLRA. {Id. at PAGEID 1 15).
On November 12, 2025, while his Objections were pending. Dyer filed a
Motion for Discovery. (Doc. #19). As the case is at the screening stage,
Defendants have not been served and have not appeared. Nonetheless, the
matters are ripe for decision.
I. Legal Standard
Under Rule 72(b), this Court must review de novo any timely, specific
objection to a report and recommendations. "The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions. " FED. R. CIV. P. 72(b)(3).
II. Analysis
The Court may easily dispense with Dyer's objection as to the number of
strikes he has accumulated. As the Magistrate Judge noted (Doc. #9, PAGEID 109-
10), the United States District Court for the Northern District of Georgia concluded
that Dyer had already accumulated at least foi//-strikes, and that he had recently
been denied IFP status twice because he had run afoul of the three strikes rule.
Dyer v. Unnamed Defendants, No. 2:24-cv-0108-SCJ-JCF, 2024 U. S. Dist. LEXIS
96367, *1 (N. D. Ga. May 29, 2024) (collecting cases)). As Plaintiff has failed to
meet his burden of demonstrating that previous dismissals dfdnotcount as
strikes, Taylor v. First Med. Mgmt, 508 F. App'x 488, 496 (6th Cir. 2012), citing
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Pointer, 502 F. 3d at 376, the Court agrees with the Magistrate Judge that Dyer
comes within the purview of 28 U. S. C. § 191 5(g).
Further, the cases cited by Dyer do not stand for the proposition he
claims-that imminent risk of serious injury is measured at the time of the
incident or injury. (Doc. #10, PAGEID 114). Rather, the court in Abdu/-Akbarhe\d
that 28 U. S. C. § 1915(g) required the imminent danger to exist at the time the
complaints filed. 239 F. 3d at 310-11. In so holding, the court overruled Gibbs
and harmonized its practice with "the Fifth, Eighth and Eleventh Circuit Courts of
Appeals ... We conclude that this interpretation is consistent with the plain
language of § 1915(g), with congressional intent and with the legislative purpose
of the PLRA as a whole. " Id. at 311, citing Gibbs, 116 F. 3d at 86. As the
Magistrate Judge correctly observed (Doc. #9, PAGEID 110), the Sixth Circuit has
also stated, albeit in a footnote, that "when the complaint is filed" is the
appropriate time for evaluating imminent injury. Pointer v. Wilkinson, 502 F. 3d at
371 n. 1, citing Malik v. McGinnis, 293 F. 3d 559, 562 (2d Cir. 2002). Although, to the
undersigned, it strains credulity that the "imminent risk" is measured at the time
of filing the complaint, every Circuit that has examined the issue, including the
Sixth Circuit, has reached that very conclusion, and this Court is bound to follow
the law as set forth in Pointer.
To know this much is to resolve the Objections. Dyer was released from the
Jail prior to filing the initial IFP Motion. (See Civil Cover Sheet, Doc. #1-2, PAGEID
38 (Dyer stating that, at the time of filing, he resided in Hall County, Georgia)).
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While Dyer may still be suffering serious effects from black mold exposure at the
Jail, that ongoing injury simply is not the type of imminent danger contemplated
by the plain language of 28 U. S. C. § 1915(g). Accordingly, the Report and
Recommendations (Doc. #9) is ADOPTED, and Dyer's Objections thereto (Doc.
#10) are OVERRULED.
As Plaintiff has accumulated at least three strikes and does not come within
the sole exception to the PLRA's bar, he may not proceed in forma pauperise this
case, and the IFF Motions (Docs. #1, 3) are OVERRULED. Since the Default (Docs.
#5, 6, 28), Summary Judgment (Doc. #7), and Discovery (Doc. #19) Motions are
not properly before the Court until the filing fee is paid in full, they are
OVERRULEDWITHOUT PREJUDICEto refiling as premature.
After filing the Report, wherein the Magistrate Judge recommended that
the undersigned require Dyer to pay $20. 25 as a pro rata share of the full $405
filing fee (Doc. #9, PAGEID 110-11), the Magistrate Judge issued a Deficiency
Order on October 27, 2025, requiring each of the other Plaintiffs to pay $20. 25 to
theClerkof Court by December 1, 2025, or file his own application to proceed in
forma pauperis. (Doc. #16, PAGEID 129). To date, none of the other Plaintiffs has
made payment or filed an /n forma pauper/'s aw\\cat\on. In the interest of giving
Plaintiffs the chance to prosecute their claims, the Court ORDERS each of the
nineteen Plaintiffs to pay $21. 32 ($405 - 19 = $21. 32) within FORTY-FIVE (45)
DAYS of Entry. If none of the Plaintiffs pays the pro rata share, then the case will
be dismissed without prejudice and terminated upon the docket records of this
6
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Court. If at least one but fewer than nineteen Plaintiffs pay $21. 32 to the Clerk,
then the Court will dismiss the non-payors from the case and will assess the
remaining amount pro rata to the remaining Plaintiffs.
IT IS SO ORDERED.
February 26, 2026
cf.'c H > ^
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT
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