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Bennett v. Thomas

United States District Court, M.D. Tennessee, Nashville Division

January 8, 2015

COREY ALAN BENNETT, Plaintiff,
v.
CHRISTIE THOMAS ET AL., Defendants

Corey Alan Bennett, Plaintiff, Pro se, Mountain City, TN.

MEMORANDUM OPINION

JOHN T. NIXON, SENIOR UNITED STATES DISTRICT JUDGE.

Plaintiff Corey Alan Bennett, an inmate confined at Northeast Correctional Complex in Mountain City, Tennessee, brings yet another pro se action under 42 U.S.C. § 1983. (ECF No. 1.) For the reasons set forth herein, the plaintiff's application to proceed in forma pauperis (ECF No. 2) will be denied, the filing fee assessed against him anyway, and this action dismissed.

The plaintiff is well aware, having been notified numerous times, that he falls within the scope of 28 U.S.C. § 1915(g), which bars prisoners from bringing a civil action or appealing a judgment in a civil action in forma pauperis if he 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). That is, because Mr. Bennett has had many more than three lawsuits previously dismissed as frivolous or for failure to state a claim, [1] he may not proceed in forma pauperis and must instead pay the full filing fee in advance in order to pursue his lawsuit, unless he plausibly alleges that he is under imminent danger of serious physical injury. Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir. 1998).

The plaintiff attempts to allege that he is in imminent danger. He asserts that he was assaulted on October 29, 2014, when the plaintiff was still housed at Riverbend Maximum Security Institution (" RMSI), by a number of correctional officers at that facility. All the defendants named in this complaint, in fact, are alleged to be officers at RMSI. The plaintiff further asserts that the " above listed officers allowed gang members to whoop me and beat me unconscious just last night." (Complaint at 4.) He claims he has tried to report this activity to " the listed Captain, Wardens, Chief of Security and they told me they are gonna kill me before I can report them." (Id.)[2] On this basis, the plaintiff alleges that he is in imminent danger of serious physical harm and that the Court should waive application of the three-strikes provision in 28 U.S.C. § 1915(g).

For the purposes of § 1915(g), the Court must whether a plaintiff is in imminent danger at the time of the filing of the complaint. Vandiver v. Vasbinder, 416 F.App'x 560, 562 (6th Cir. 2011) (" [T]he plain language of § 1915(g) requires the imminent danger to be contemporaneous with the complaint's filing."). " [A] prisoner's assertion that he or she faced danger in the past is insufficient to invoke the exception." Rittner v. Kinder, 290 F.App'x 796, 797-98 (6th Cir. 2008) (citation omitted).

In this case, although the plaintiff insists that his life is currently in imminent danger, the allegations in the complaint also make it clear that the defendants named in the instant complaint are all employed at RMSI. The plaintiff has been transferred to Northeast Correctional Complex. For this reason, the plaintiff's assertions that officers at Riverbend still pose a threat to him are not plausible, and the plaintiff fails to demonstrate that he is currently in imminent danger posed by the named defendants.

The application to proceed in forma pauperis (ECF No. 2) will therefore be denied. Moreover, because the plaintiff has demonstrated through this and other filings that he is indigent, rather than granting the plaintiff 30 days within which to submit the $400 filing fee, the Court will dismiss this action, without prejudice, for failure to submit the filing fee with the complaint. The plaintiff may file a motion to alter or amend judgment to reinstate this action if he does so within 28 days of entry of this order and submits the full $400 filing fee at that time.

An appropriate order is filed herewith.

ORDER

Plaintiff Corey Alan Bennett, an inmate confined at Northeast Correctional Complex in Mountain City, Tennessee, brings yet another pro se action under 42 U.S.C. § 1983. (ECF No. 1.) For the reasons set forth In the accompanying Memorandum Opinion, the plaintiff's application to proceed in forma pauperis (ECF No. 2) is hereby DENIED, and this action is DISMISSED WITHOUT PREJUDICE for failure to submit the filing fee with the complaint.

Pursuant to In re Alea, 286 F.3d. 378, 381 (6th Cir. 2002), the entire $400 fee is hereby ASSESSED, as follows:

The custodian of the plaintiff's inmate trust fund account at the institution where he now resides is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a) 20% of the average monthly deposits to the plaintiff's inmate trust account; or (b) 20% of the average monthly balance in the plaintiff's inmate trust fund account for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the trust fund officer must withdraw from the plaintiff's account and pay to the Clerk of this Court monthly payments equal to 20% of all deposits credited to the plaintiff's account during the preceding month, but only when the amount in the account exceeds $10. Such payments must continue until the entire $400 filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

Each time the trust account officer makes a payment to this Court as required by this Order, he or she must print a copy of the prisoner's account statement showing all activity in the account since the last payment made in accordance with this order and submit it to the Clerk along with the payment. All submissions to the Court must clearly identify the plaintiff's name and the case number as indicated on the first page of this order, and must be mailed to: Clerk, United States District Court, Middle District of Tennessee, 801 Broadway, Nashville, TN 37203.

The Clerk of Court is DIRECTED to send a copy of this order to the Warden of the Northeast Correctional Complex to ensure that the custodian of the plaintiff's inmate trust account complies with that portion of 28 U.S.C. § 1915 pertaining to the payment of the filing fee. If the plaintiff is transferred from his present place of confinement, the custodian of his inmate trust fund account MUST ensure that a copy of this Order follows the plaintiff to his new place of confinement.

It is so ORDERED.

This is a final appealable order for purposes of Fed.R.Civ.P. 58.


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