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Rowan v. Lewis

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

June 18, 2015

BRENT ROWAN, Plaintiff,
v.
NIGEL LEWIS, et al., Defendants.

ORDER DIRECTING PLAINTIFF TO PAY THE FULL $400 CIVIL FILING FEE ORDER DENYING PENDING MOTION (ECF No. 3) AND ORDER PROHIBITING FURTHER FILINGS UNTIL FILING FEE IS PAID

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 My 27, 2015, Rowan filed a motion requesting that the Court review his medical records.[1] (ECF No. 3.)

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 Public Defender Nigel Lewis, Memphis Police Department Detectives, the Memphis Police Association., the Tennessee Bar Association, and Correct Care Solutions, the medical provider at the Jail. The complaint alleges:

During March 2015, I met with the psychologist about an evaluation for the court. This was a second meeting to discuss criteria for a plea. And, there was a meeting to discuss my mental state during February 2015. I claim that mental state requires treatment at a law school. The LSAC has document, doctors form that the court should review because of the incidents that I have no control. So, I had no control over the malicious behavior exhibited by Nigel Lewis. I came to my attorney visit from F pod. I was harassed on that floor because of my sexually [sic]. Nigel Lewis is not a prosecutor. He is a public defender that created a mental disorder recorded in the facility before arriving to F pod. And, I have recorded information on grievance forms and, I sent the jail handbook to the U.S. Supreme Court for answers about my questions of rexation [sic] in the jail.

(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 this action for failure to prosecute. Alea, 286 F.3d at 381-82.[4]

Plaintiff's complaint has not been served on any Defendant. The motion for court review of medical records (ECF No. 3) is DENIED as premature. Plaintiff is ORDERED to file no further motions in this action until he has remitted the entire filing fee. The Clerk is directed to return any further motions to Plaintiff until the filing fee is paid.

IT IS SO ORDERED.


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