Alford v. Hawk et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
BRIAN KEITH ALFORD,
Plaintiff,
vs.
DR. HAWK, et al.,
Defendants.
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Case No. 2:25-cv-187
District Judge Michael H. Watson
Magistrate Judge Peter B. Silvain, Jr.
REPORT AND RECOMMENDATION 1
Plaintiff, Brian Keith Alford, a former federal prisoner currently in state custody at the
Ross Correctional Institution (RCI), brings this pro se civil rights action under 42 U.S.C. § 1983
against RCI Defendants Dr. Hawk and Nurse Ragland and Ohio Department of Rehabilitation and
Correction Director Annette Chambers-Smith. Plaintiff alleges claims related to his medical care
at RCI. (See Docs. 1; 8). This matter is before the Court on Plaintiff’s motions for leave to proceed
in forma pauperis. 	(Docs. 7; 10). 	For the reasons that follow, Plaintiff’s motions for leave to
proceed in forma pauperis (Docs. 7; 10) should be DENIED.
A. 	Legal Standard
Congress has restricted a prisoner’s right to proceed in forma pauperis. 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,
1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.
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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).
The undersigned has determined that Plaintiff is a “three striker” as contemplated in
§ 1915(g) due to at least three lawsuits he filed that have been dismissed as frivolous or for failure
to state a claim. 	See, e.g., Alford v. Wilkinson, No. 2:97-cv-997 (S.D. Ohio), which the Sixth
Circuit affirmed in Alford v. Wilkinson, 173 F.3d 428, 1999 WL 96732, at *1 (6th Cir. 1999)
(Table); Alford v. Wilkinson, No. 2:98-cv-226 (S.D. Ohio), which the Sixth Circuit affirmed in
Alford v. Wilkinson; 188 F.3d 506, 1999 WL 644375, at *1 (6th Cir. 1999) (Table); and Alford v.
Rice, No. 3:10-cv-424 (S.D. Ohio), which the Sixth Circuit declined to adjudicate because it denied
Plaintiff’s request to proceed in forma pauperis on appeal (see id. (Doc. 27)). See also Alford v.
Chambers-Smith, No. 2:24-cv-4184 (S.D. Ohio) (Docs. 7; 19) (finding Plaintiff to be a “three
striker”).
In view of his three strikes, Plaintiff may not proceed in forma pauperis in this case 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.” To satisfy this exception to the three
strikes rule, “the threat or prison condition ‘must be real and proximate’ and the danger of serious
physical injury must exist at the time the [initial] complaint is filed.” See Rittner v. Kinder, 290
F. App’x 796, 797–98 (6th Cir. 2008) (citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc)). See also McFadden
v. Noeth, 827 Fed. App’x 20, 25 (2d Cir. 2020) (holding that, “in determining whether ‘imminent
danger’ exists we ‘constru[e] [the prisoner’s] initial and amended complaints to raise the strongest
arguments that they suggest’ and analyze whether ‘the facts alleged support a finding that he was
in imminent danger at the time he filed his initial complaint.’”) (alterations and emphasis added in
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original). Neither an assertion of past danger, Rittner, 290 F. App’x at 797–98, nor speculative
future harm, Shephard v. Marbley, 23 F. App’x 491, 492 (6th Cir. 2001), are sufficient to invoke
the exception. Moreover, the type of physical injury alleged by a plaintiff must “have potentially
dangerous consequences such as death or severe bodily harm” to qualify as “serious” under §
1915(g). Gresham v. Meden, 938 F.3d 847, 850 (6th Cir. 2019).
B. 	Plaintiff’s Allegations
The operative complaint in this case is Plaintiff’s Amended Complaint. 	(Doc. 8). 	See
Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014) (“An amended complaint supersedes an
earlier complaint for all purposes.”) (quotation and citation omitted). In the Amended Complaint,
Plaintiff alleges that, from December 7, 2024, to December 10, 2024, RCI medical staff delayed
providing him with treatment for complaints that he was unable to urinate and in great pain. (Doc.
8, PageID 44). He alleges that when he went to medical on December 10, 2024, Defendant Hawk
advised Defendant Ragland to “cathe” Plaintiff, but Ragland refused and instead placed Plaintiff
in an observation room. 	Id. 	Plaintiff alleges that he was crying in the observation room and
another nurse, who is not named as a defendant, “cathed” him at 10:15 a.m. Id. at 44-45. Plaintiff
states that a mixture of blood and urine was removed from his body. Id. Plaintiff alleges that he
was then given antibiotics and Ibuprofen and sent back to his housing unit. Id. The Court notes
that in his initial Complaint, Plaintiff also alleges that he was given a shot for pain. 	(Doc. 1,
PageID 5).
Plaintiff states that from December 10, 2024, to December 23, 2024, he went to medical
for medication but was forced to walk there, having to stop every four to five steps due to pain.
(Doc. 8, PageID 45). He alleges that he passed blood clots in his urine from December 10, 2024,
to December 17, 2024. 	Id. 	On December 17, 2024, Defendant Hawk advised Plaintiff to
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discontinue the Ibuprofen. 	Id. 	On December 23, 2024, Plaintiff was sent to the Ohio State
University Medical Center, where he remained until December 27, 2024. 	Id. 	According to
Plaintiff, he had lost 36 pounds, and CT scans revealed that he had a double kidney infection, a
blood clot on his left lung, and a cyst on his left kidney. Id. Plaintiff alleges that upon his return
to RCI on December 27, 2024, he was placed in medical where he remained until January 2, 2025.
Id. According to Plaintiff, he was released to general population with a “Fully-cathe,” which he
used until July 25, 2025, when he was switched to a “straight cathe.” Id. at 45-46. Plaintiff alleges
that since July 2025, he has been awaiting surgery on his prostate and continues to suffer pain. Id.
at 46.
Plaintiff further alleges that, between August 2024 and July 16, 2025, his “PSA” levels
increased from 11.6 to 12.7. 	Id. 	Additionally, he alleges that he has been denied Flomax
medication for his “BPH” for extended periods of time “without justification” and, as of the time
he filed his Amended Complaint, had been waiting for two weeks for a refill of his Flomax. Id.
Plaintiff states that since December 23, 2024, he has been prescribed blood thinners, which he will
take for the rest of his life, and he is in danger of suffering kidney failure or possible death if
surgery is not completed. Id.
C. 	Analysis
Although “alleging a danger of serious physical injury as a result of being presently denied
adequate medical treatment” can satisfy the imminent-danger exception, Vandiver v. Prison Health
Services, Inc., 727 F.3d 580, 582-83 (6th Cir. 2013), conclusory allegations are insufficient to do
so. See id. at 585 (“To that end, ‘district courts may deny a prisoner leave to proceed pursuant to
§ 1915(g) when the prisoner’s claims of imminent danger are conclusory[.]’”) (quoting Rittner,
290 F. App’x at 798) (alterations in original).
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In this case, Plaintiff takes issue with the alleged delay in treating his inability to urinate in
December 2024. But he filed his initial Complaint in February 2025 (Doc. 1) and his Amended
Complaint in August 2025 (Doc. 8). At the time of filing his pleadings, Plaintiff was being actively
treated for his alleged condition. Indeed, his own allegations show that he had seen medical staff
at RCI, where he received a catheter, antibiotics, and Ibuprofen. (Doc. 8, PageID 44-45). He had
also been seen by medical staff at the OSU Medical Center, where he received a CT scan and was
admitted for treatment. Id. at 45. When he returned to RCI, he again received treatment from RCI
medical staff, including a stay in medical and a change of his catheter. Id. Plaintiff’s allegations
also show that his PSA levels were monitored and he was prescribed blood thinners. Id.
To the extent that Plaintiff alleges that as of August 2025, he was awaiting surgery on his
prostate, there are no factual allegations regarding a prescription for surgery or a timetable for such
surgery. Similarly, other than his own conclusory assertions that his prescription for Flomax has
been denied at times and a refill delayed, he fails to allege facts from which the Court can plausibly
infer this alleged denial or delay placed him in imminent danger of serious physical injury,
especially given his allegations showing that he was receiving treatment for his medical conditions
during this same time period. 	(See Doc. 8, PageID 46 (noting Plaintiff’s switch to a “straight
cathe” in July 2025 and his prescription for blood thinners since December 2024)).
As this Court previously found in another case filed by Plaintiff in which he raised
arguments similar to the allegations presented here, “Alford has not alleged facts from which the
Court can plausibly infer that he was under an existing danger at the time he his Complaint due to
the care he was (or wasn’t) receiving.” Alford v. Chambers-Smith, et al., No. 2:24-cv-4184 (S.D.
Ohio) (Doc. 19, PageID 182). Rather, as the Sixth Circuit found in affirming the dismissal of a
challenge by Plaintiff to treatment he received at the Toledo Correctional Institution, “[w]hen, as
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here, a prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law.” Alford v. Zilles, No. 22-3416, 2023 WL
3696315, at *2 (6th Cir. May 22, 2023) (internal quotation marks omitted). 	A dispute over the
adequacy of medical treatment is not enough to invoke the imminent danger exception to the three-
strikes rule. See 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) (citing
cases).
Because Plaintiff has accumulated “three strikes” but has failed to allege particular facts
showing any immediate or impending serious physical injury in existence at the time he
commenced this action, he does not meet the exception to the “three strikes” rule set forth in 28
U.S.C. § 1915(g).
IT IS THEREFORE RECOMMENDED THAT:
1. 	Plaintiff’s motions to proceed in forma pauperis (Docs. 7, 10) be
DENIED and he be ordered to pay the full $405 fee ($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); and
2. 	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).
February 18, 2026 	s/Peter B. Silvain, Jr.
Peter B. Silvain, Jr.
United States Magistrate Judge
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PROCEDURE ON OBJECTIONS:
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response
to objections must be filed within fourteen (14) days after being served with a copy. Fed. R. Civ.
P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
the magistrate judge’s report and recommendation). 	Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. 	Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted).
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