United States District Court, W.D. Tennessee, Western Division
December 12, 2014
JULIAN FRANKLIN CARTER, II a/k/a WILLIE ERVIN MOORE, Plaintiff,
STATE OF TENNESSEE, ET AL., Defendants.
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DIRECTING PLAINTIFF TO PAY FULL $400 CIVIL FILING FEE
JAMES D. TODD, District Judge.
On August 25, 2014, Plaintiff, Julian Franklin Carter, II a/k/a Willie Ervin Moore, Tennessee Department of Correction prisoner number 219268, an inmate at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a copy of his inmate trust fund account statement. (ECF Nos. 1 & 2.)
Under Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay the full filing fee required by 28 U.S.C. § 1914(a). The statute merely provides the prisoner the opportunity to make a "downpayment" of a partial filing fee and pay the remainder in installments. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) ("[w]hen an inmate seeks pauper status, the only issue is whether the inmate pays the entire fee at the initiation of the proceeding or over a period of time under an installment plan. Prisoners are no longer entitled to a waiver of fees and costs."), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
However, not all indigent prisoners are entitled to take advantage of the installment payment provisions of § 1915(b). Section 1915(g) provides as follows:
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.
Thus, "[s]uch a litigant cannot use the period payment benefits of § 1915(b). Instead, he must make full payment of the filing fee before his action may proceed." In re Alea, 286 F.3d 378, 380 (6th Cir. 2002). The Sixth Circuit has upheld the constitutionality of this provision. Wilson v. Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).
Plaintiff has filed numerous previous lawsuits, and at least five of those suits were dismissed for failure to state a claim or as frivolous. Therefore, Plaintiff may not take advantage of the installment-payment provisions of 28 U.S.C. § 1915(b) unless he is in imminent danger of serious physical injury. The assessment whether a prisoner is in imminent danger is made at the time of the filing of the complaint. See, e.g., Vandiver v. Vasbinder, 416 F.Appx. 560, 561-62 (6th Cir. 2011); Rittner v. Kinder, 290 F.Appx. 796, 797-98 (6th Cir. 2008); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul Akbar v. McKelvie, 239 F.3d 307, 312-16 (3d Cir. 2001) (en banc).
Here, Plaintiff has sued the State of Tennessee, Ms. Gracie, and Warden James M. Holloway. The factual allegations of the complaint are as follows:
During the month of X-XX-XXXX Inmate Willie E Moore was moved from the Mental Health Unit in MSU Program then placed in the Protected Custody for his safety in the Unit 8[.] Now cause Inmate Willie Moore felt danger in both units while in Unit 8 Inmate Willie Moore began breaking a sink off the wall and was moved too [sic] the Medical Hospital at the Prison holding cell then Inmate Moore was met by Medical Staffs and Meds and Mental Health Staff[.] Inmate Willie Moore was tolded [sic] he was taken [sic] the wrong medication by Dr[.] Gracie of Medical and Mental Health Staffs at West Tenn Prison[.] The medication cause problem too [sic] Inmate Willie Moore eyesight[.] Inmate Vision went from 20/40 too [sic] 20/50 cause of the medication[.] Inmate Willie Moore did not asks [sic] or gives [sic] permission for his medication too [sic] be changed without talking to Dr[.] Gracie first or Inmate consented first[.]
(ECF No. 1 at PageID 4-5.) The prayer for relief seeks money damages in the amount of $2 million. ( Id. at PageID 5.) Plaintiff's complaint does not allege that he was in imminent danger of serious physical injury on August 21, 2014, when he signed the complaint. The events at issue occurred six months earlier, in February 2014, when Plaintiff learned that he had been prescribed the wrong medication. Because this complaint does not come within the exception to 28 U.S.C. § 1915(g), the Court cannot address its merits unless Plaintiff first tenders the civil filing fee. Therefore, leave to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g).
Plaintiff is ORDERED to remit the entire $400 civil filing fee within thirty (30) days after the date of this order. Failure to do so will result in the assessment of the filing fee from Plaintiff's inmate trust account without regard to the installment procedures and dismissal of this action for failure to prosecute. Alea, 286 F.3d at 381-82.
IT IS SO ORDERED.