Pointer v. Frye

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
DENNIS POINTER,
Plaintiff,
vs.
NANCY FRYE,
Defendant.
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Case No. 1:26-cv-55
Judge Susan J. Dlott
Magistrate Judge Karen L. Litkovitz
REPORT AND RECOMMENDATION TO DENY
MOTION TO PROCEED IN FORMA PAUPERIS
Plaintiff Dennis Pointer, an inmate at the Lebanon Correctional Institution, brings this
prisoner civil rights action under 42 U.S.C. § 1983. This matter is before the Court on Plaintiff’s
motion to proceed in forma pauperis. (Doc. 1). Upon review, Plaintiff’s motion should be denied.
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).
Plaintiff is prohibited by § 1915(g) from proceeding in forma pauperis in this case because
at least three of his prior complaints filed while he was incarcerated were dismissed as frivolous
or for the failure to state a claim upon which relief may be granted. 	See Pointer v. Chambers-
Smith, No. 24-4105, 2025 U.S. App. LEXIS 16497, at *3 (6th Cir. July 3, 2025) (citing Pointer v.
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Wilkinson, 502 F.3d 369, 377 (6th Cir. 2007); Pointer v. McArthur, No. 14-cv-2012, 2015 WL
1245972 (N.D. Ohio Mar. 18, 2015)) (noting that the Sixth Circuit determined Plaintiff had three
strikes (Wilkinson), and that he had another dismissal since then (McArthur)). 	The previous
dismissals prevent Plaintiff from obtaining pauper status in the instant action.
Because Plaintiff has at least three “strikes,” he may not proceed in forma pauperis 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.” 	Under the plain language of the
statute, plaintiff must be in imminent danger at the time that he seeks to file his suit in federal court
to qualify for the exception to the “three strikes” provision of § 1915(g). 	See Vandiver v.
Vasbinder, 416 F. App’x 560, 561-62 (6th Cir. 2011) (collecting cases) (holding in accordance
with other circuit courts that “the plain language of § 1915(g) requires the imminent danger to be
contemporaneous with the complaint’s filing).
“The imminent danger exception is essentially a pleading requirement subject to the
ordinary principles of notice pleading.” Id. at 562. 	To satisfy the requirement, a plaintiff must
allege “facts from which a court, informed by its judicial experience and common sense, could
draw the reasonable inference that [he] was under an existing danger at the time he filed his
complaint.” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (quoting
Taylor v. First Med. Mgmt., 508 F. App’x 488, 492 (6th Cir. 2012)). 	Past danger or threat is
insufficient; “the threat or prison condition must be real and proximate and the danger of serious
physical injury must exist at the time the complaint is filed.” Id. (quoting Rittner v. Kinder, 290
F. App’x. 796, 797 (6th Cir. 2008)); Taylor, 508 F. App’x at 492 (citing Rittner, 290 F. App’x at
797-98 (“Allegations of past dangers are insufficient to invoke the exception.”); Percival v. Gerth,
443 F. App’x 944, 946 (6th Cir. 2011) (same).
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The Sixth Circuit has found that the risk of serious physical harm based on the denial of
medical care may satisfy the imminent danger exception. Vandiver v. Prison Health, 727 F.3d at
582-83. 	But conclusory allegations of imminent danger are insufficient. 	Id. at 585 (quoting
Rittner, 290 F. App’x at 798) (“district courts may deny a prisoner leave to proceed pursuant to
§ 1915(g) when the prisoner’s claims of imminent danger are conclusory . . . or are clearly
baseless”); Taylor, 508 F. App’x at 492 (“Allegations that are conclusory, ridiculous, or clearly
baseless are also insufficient for purposes of the imminent-danger exception.”). And courts in this
District have found that a dispute over the adequacy of the medical care provided is not enough to
satisfy the imminent danger exception to the three-strikes rule. See, e.g., Freeman v. Mohr, No.
2:11-cv-878, 2012 WL 5378827, at *4 (S.D. Ohio Oct. 30, 2012), report and recommendation
adopted, 2013 WL 434023 (S.D. Ohio Feb. 5, 2013) (collecting cases in which district courts
determined the imminent danger exception was not satisfied where the plaintiffs received medical
care but merely challenged the adequacy of that care).
In his motion seeking leave to proceed in forma pauperis, Plaintiff alleges that he meets
the imminent danger exception. 	(Doc. 1, PageID 1-4). 	Plaintiff alleges that he is being denied
adequate care, including being denied the “proper imprints/inserts for his disfigured foot
deformity.” (Id. at PageID 3). He alleges that this lack of care is impacting his sleep and mobility,
placing his “health and [safety] in imminent danger.” (Id.). While Plaintiff alleges that he suffers
from serious medical conditions at the time of filing his Complaint, his allegations appear to
challenge the adequacy of the medical treatment he received, which is insufficient to satisfy the
imminent danger exception. Plaintiff also alleges that upon transfer to another facility, the doctor
only provided pain medication for his spinal disease, which is no longer effective, but he then
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alleges that the doctor ordered Plaintiff to receive cortisone shots every six months, so it is unclear
how these allegations present an imminent danger. (Id.).
Additionally, based on Plaintiff’s exhibits filed with his Complaint, he was told to purchase
inserts through commissary because imprints were no longer made, and he stated that his footwear
was working for him. (Complaint, Doc. 1-1, PageID 22). Plaintiff has not been denied medical
treatment outright, and he has received care for his medical ailments. He also has the option to
purchase inserts through commissary. Although he does not agree with the course of treatment,
this dispute over the adequacy of medical treatment is insufficient to suggest an imminent danger,
and Plaintiff does not meet the exception to the “three strikes” rule set forth in 28 U.S.C. § 1915(g).
Accordingly, Plaintiff’s request to proceed in forma pauperis should be DENIED.
IT IS THEREFORE RECOMMENDED THAT:
1. 	Plaintiff’s motion to proceed in forma pauperis (Doc. 1) be DENIED.
2. 	Plaintiff be ordered to pay the full $405 ($350 filing fee plus $55 administrative fee)
required to commence this action within thirty (30) days, and that Plaintiff be notified
that his failure to pay the full $405 fee within thirty days will result in the dismissal of
his action. See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
3. 	The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in
good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
PROCEDURE ON OBJECTIONS
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written objections
to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of the filing date
of this R&R. That period may be extended further by the Court on timely motion by either side for
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an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall
be accompanied by a memorandum of law in support of the objections. A party must respond to
an opponent’s objections within FOURTEEN (14) DAYS after being served with a copy of those
objections. 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).
IT IS SO RECOMMENDED.
February 27, 2026
KAREN L. LITKOVITZ
United States Magistrate Judge
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