United States District Court, D. Rhode Island
JUAN C. MARTINEZ, Plaintiff,
CAPTAIN DUFFY; MATTHEW KETTLE; ASHBEL T. WALL, II, Director of Department of Corrections, Defendants.
WILLIAM E. SMITH, CHIEF JUDGE.
February 5, 2018, Magistrate Judge Patricia A. Sullivan filed
a Report and Recommendation (“R&R”) (ECF No.
4) recommending that Plaintiff's Motion for Leave To
Proceed In Forma Pauperis (ECF No. 2) be denied. After
carefully reviewing the R&R and the relevant papers, and
having heard no objections, the Court ACCEPTS the R&R in
its entirety and adopts the reasoning outlined therein.
Therefore, the Court DENIES Plaintiff's Motion for Leave
To Proceed In Forma Pauperis (ECF No. 2).
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 occurred);
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). The 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 F.
App'x 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 F. App'x 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 F. App'x 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 ...