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Rowan v. State

United States District Court, W.D. Tennessee, Western Division

June 18, 2015

BRENT ROWAN, Plaintiff,
STATE OF TENNESSEE, et al., Defendants.


JAMES D. TODD, District Judge.

On March 23, 2015, Plaintiff Brent Rowan, booking number 15102052, an inmate at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Rowan did not file a motion seeking leave to proceed in forma pauperis. On May 27, 2015, Rowan filed motions for leave to serve process and for the Court to review medical records.[1] (ECF Nos. 3 & 4.) On June 5, 2015, Rowan filed motions for the Court to review multiple different documents. (ECF Nos. 5-7, 9-11.) On June 10, 2015, Rowan filed a motion for the Court to review envelopes. (ECF No. 8.)

Under the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay the full filing fee of $400 required by 28 U.S.C. § 1914(a).[2] 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.").

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 three previous lawsuits that were dismissed for failure to state a claim or as frivolous.[3] 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.

It is also necessary to consider whether the exception to the "three strikes" provision is applicable here. 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).

Plaintiff sues the State of Tennessee, the Shelby County Department of Health, Supplemental Security Income Ticket of Work Program, United Healthcare Dual Complete, the Bureau of Tenn Care, Humana, AARP, and Blue Cross Blue Shield TN. The complaint alleges:

During December 2014, I was at 3298 Leschalles Drive, Memphis TN 38128, near 4314 Renners Rd, Memphis, TN 38128. After leaving WalMart with my aunt, I asked that I be dropped of [sic] at a hotel. My aunt did not see the reason for me to be dropped at a hotel. So, I felt it was okay to stay at her house. I was told that I would be dropped off at her job. Sometimes, I have meetings in the park near her job with men. But I have notified Friends for Life. But that should not stop me from going to the bathroom in her house. At that house I was not prepared to stand in the hall screaming about using the bathroom before I awoke in the house. So, I used the bathroom on the floor in her room because Sunday was in the other bathroom. I needed my aunt to use her judgment.

(ECF No. 1 at PageID 2.)

Plaintiff's complaint does not allege that he was in imminent danger of serious physical injury on the day he commenced this action. "Allegations that are conclusory, ridiculous, or clearly baseless are... insufficient for purposes of the imminent-danger exception." Taylor v. First Med. Mgmt., 508 F.Appx. 488, 492 (6th Cir. 2012).

Plaintiff has "failed to plead facts supporting a finding of imminent danger on the date that he filed his complaint." Taylor, 508 F.Appx. at 492-93. Because this complaint does not come within the exception to 28 U.S.C. § 1915(g), the Court cannot consider it on the merits unless Plaintiff first tenders the civil filing fee. Plaintiff may not proceed in forma pauperis pursuant to U.S.C. § 1915(g).

Plaintiff is ORDERED to remit the entire $400 civil filing fee within thirty (30) days of the date of filing of this order. Failure to do so will result in the assessment of the filing fee directly from Plaintiff's inmate trust fund account and dismissal of ...

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