United States District Court, D. Rhode Island
JUAN C. MARTINEZ, Plaintiff,
CAPTAIN DUFFY, MATTHEW KETTLE, and ASHBEL T. WALL, Defendants.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE
January 17, 2018, Plaintiff Juan C. Martinez, a prisoner held
at the Adult Correctional Institutions (“ACI”),
filed a hand-written pro se § 1983 complaint
against three Rhode Island Department of Corrections
(“RIDOC”) employees based on his claim that they
were deliberately indifferent to his medical need to be
housed in front of a control center because he suffers from
seizures, as well as other medical issues. With his
complaint, Plaintiff filed a motion for leave to proceed
in forma pauperis (“IFP”), ECF No. 2,
which has been referred to me for
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(g), IFP status is not available to a
prisoner who has brought three or more cases that were
dismissed as frivolous, malicious or for failure to state a
claim upon which relief may be granted. Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (May 18, 2015).
Plaintiff qualifies as a three-striker based on the following
cases that were terminated by dismissal for failure to state
a claim in the District of Rhode Island:
Strike One: Martinez v. R.I. Dep't of Corrs.,
C.A. 11-071-L, slip op. at 2-3 (D.R.I. Mar. 23, 2011) (case
dismissed for failure to state a claim because allegations
were “disjointed and frequently incomprehensible”
and fail to set out how any violation of civil rights
Strike Two: Martinez v. Wall, C.A. No. 11-429-S,
slip op. at 2-5 (D.R.I. Dec. 14, 2011) (case dismissed for
failure to state a claim because improper defendant named,
facts alleged do not rise to level of constitutional
violation and fail to state cognizable due process claim);
Strike Three: Martinez v. McCray, C. A. No.
17-325-JJM-PAS, 2017 WL 4640327, at *2 (D.R.I. Oct. 13, 2017)
(case dismissed for failure to state a claim because no
constitutional violations are cognizable based on allegations
that correctional officer broke plaintiff's television
set and placed him in segregation for thirty-one days).
fourth potential strike occurred when Martinez v.
Clark, C.A. No. 12-788-S, was screened pursuant to 28
U.S.C. § 1915 (e)(2) and § 1915A. Slip op. at 5-7
(D.R.I. June 7, 2013).
Court held that the complaint was “unclear, rambling,
and confusing” and “fails to state a claim on
which relief may be granted.” Id. at 5.
However, the dismissal was without prejudice to Plaintiff
amending his pleading; because he failed to do so, the case
was dismissed and terminated. The First Circuit has not
decided whether a dismissal without prejudice constitutes a
strike under the PLRA. The majority of the other circuits
that have addressed the issue hold that it does because 28
U.S.C. § 1915(g) does not distinguish between dismissals
with prejudice and those without. See Campbell v. Nassau
Cty. Sheriff Dep't of Corrs., 14-CV-6132 (CBA) (LB),
2017 WL 5513630, at *3 (E.D.N.Y. Nov. 15, 2017) (unpublished)
(citing cases from Sixth, Seventh, Eighth and Ninth
Circuits). The Fourth Circuit has held that dismissal without
prejudice is not a strike under PLRA. McLean v. United
States, 566 F.3d 391, 396 (4th Cir. 2009)
(“dismissal without prejudice for failure to state a
claim is not an adjudication on the merits” and
therefore does not count as a strike under PLRA). There is no
need to decide this issue in light of the three unambiguous
strikes listed above.
on the foregoing three strikes, Plaintiff is not eligible for
IFP status, unless his complaint falls within the PLRA
exception to the three-strikes rule for cases alleging that
the prisoner is in imminent danger of serious physical
injury. 28 U.S.C. § 1915(g). To invoke the exception,
two elements must be met: the harm must be imminent and the
claim for relief asserted must be for the alleviation of that
threat of harm. Judd v. United States, C.A. No.
06-10172-PBS, 2010 WL 1904869, at *3 (D. Mass. May 5, 2010)
(citing Judd v. Fed. Election Comm'n, 311
Fed.Appx. 730, 731 (5th Cir. 2009)). The inmate must make
“specific fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.”
Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir.
2006) (per curiam).
case, Plaintiff alleges that he fears he will have a seizure,
dizzy spell or other medical issue that is undetected because
he is not housed close to the front desk. However, he does
not allege that any medical provider has prescribed that he
is medically in need of such close surveillance, despite
repeated hospitalizations, including at Rhode Island
Hospital. Moreover, Plaintiff's complaint also alleges
that he has been arguing with RIDOC officials about his cell
location since at least June 2017, but has been refused the
cell that he wants, in part because of plumbing and heating
issues. ECF No. 1 at 2-3. The pleading makes clear that RIDOC
is aware of Plaintiff's medical issues and of his desire
to be housed near to a front desk, including that this matter
has been the subject of grievances and ongoing discussion
between Plaintiff and ACI staff over a period of many months.
on the circumstances described in the complaint, I find that
the pleading establishes Plaintiff's fear of a seizure or
other medical issue that is not swiftly detected, but that
such a fear, ungrounded in a concrete medically-based
opinion, does not rise to the level of “evidenc[e of]
the likelihood of imminent serious physical injury.”
Johnson, 200 Fed.Appx. at 272; see Petaway v.
Porter, C.A. No. 13-794 S, 2014 WL 4168462, at *1
(D.R.I. Aug. 20, 2014) (complaint that fails to articulate
danger greater than fear that future attack may occur does
not fall within exception to three-strikes rule); Cash v.
Bernstein, No. 09 Civ.1922(BSJ)(HBP), 2010 WL 5185047,
at *3 (S.D.N.Y. Oct. 26, 2010), adopted, 2010 WL
5222126 (S.D.N.Y. Dec. 21, 2010) (unsupported speculation
that plaintiff needs to see wound specialist to avoid
gangrene not sufficient to show imminent danger of serious
physical harm). Accordingly, this complaint does not fall
into the three-strikes exception.
pertinent is that Plaintiff already has pending in a case
filed in this Court on December 2, 2016, his overarching
claim that RIDOC has not properly responded to his medical
issues. Martinez v. Clarke, C.A. No. 16-642JJM
(D.R.I.) (ECF No. 1 at 3). On January 19, 2018, that case was
referred to Alternative Dispute Resolution for mediation
services. See C.A. No. 16-642JJM (ECF No.
49). Therefore, it would appear that Plaintiff's prayer
for the remedy of placement in a location where a medical
emergency will be observed can be addressed in this
already-pending 2016 case in which Plaintiff was
afforded IFP status. Far from lacking a forum to address his
concern about cell placement, Plaintiff may raise his housing
location in the mediation of the 2016 case; if that is
unavailing, he can ask the Court for injunctive relief in the
context of that case. IFP status to prosecute a new case is
I find that Plaintiff's IFP motion should be denied
because he did not submit a copy of his prisoner trust fund
account statement certified by an appropriate official at the
ACI as required by 28 U.S.C. § 1915(a)(2) for the
six-month period immediately preceding the filing of
his complaint on January 17, 2018. Plaintiff attached an
inmate statement dated June 15, 2017, which covered January 1
to June 15, 2017; this does not satisfy the requirement.
See ECF No. 2-2. If the Court rejects the
recommendation above based on the PLRA three-strikes rule,
the IFP application should not be approved unless and until
Plaintiff complies with the requirement that he must file a
certified copy of his prisoner trust fund account statement
for the six-month period immediately preceding the filing of
light of the foregoing, I recommend that Plaintiff's
motion for leave to proceed in forma pauperis (ECF
No. 2) be DENIED. Any objection to this report and
recommendation must be specific and must be served and filed
with the Clerk of the Court within fourteen (14) days after
its service on the objecting party. See Fed.R.Civ.P.
72(b)(2); DRI LR Cv 72(d). Failure to file specific
objections in a timely manner constitutes waiver of the right
to review by the district judge and the right to appeal the
Court's decision. See ...