United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING $350 CIVIL FILING FEE, ADDRESSING PENDING MOTIONS, DISMISSING CASE AND GRANTING LEAVE TO AMEND
JAMES D. TODD, District Judge.
On February 2, 2015, Plaintiff, Tommy Earl Jones, Tennessee Department of Correction prisoner number 464968, an inmate at the West Tennessee State Penitentiary ("WTSP") in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., accompanied by motions seeking leave to proceed in forma pauperis, the appointment of counsel and an injunction. (ECF Nos. 1, 2, 3 & 4.) The Clerk shall record the Defendant as Doctor First Name Unknown ("FNU") Benitez.
Under the 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 at least three previous civil rights lawsuits that were dismissed for failure to state a claim. 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).
This is at least the third lawsuit Plaintiff has filed about inadequate medical treatment for his Crohn's disease. The complaint alleges that, on January 16, 2015, Plaintiff told Benitez that he was in pain and "describe[d] the on going lack of pain medication...." (ECF No. 1 at PageID 4.) Plaintiff told Benitez that he was not receiving the proper diet tray because his name had not been submitted to a dietician. ( Id. ) Plaintiff explained that his "mucosal surface is entirely ulcerated and replaced by an active inflammatory exudate." ( Id. ) Plaintiff told Benitez that he needed to be housed at the Lois N. DeBerry Special Needs Facility ("DSNF") in Nashville, Tennessee. ( Id. ) Benitez allegedly responded that his aunt has Crohn's disease, that Plaintiff could not receive pain medication but could receive steroids, and that "he went to Yale University and a jerk couldn't tell him anything." ( Id. )
Plaintiff had a follow-up appointment with Benitez on January 23, 2015. Benitez told Plaintiff that he was placing him on a "prednisone six months step down" and that, after six months, Plaintiff would have one medication on file. ( Id. at PageID 4-5.) Benitez also allegedly told Plaintiff that "there was no diet in the prison to place [him] on" and that "there will be no issuing of pain medication...." ( Id. ) Plaintiff would receive nutritional and vitamin supplements "only if [he is] having exacerbation." ( Id. at PageID 5.) Upon questioning by Plaintiff, Benitez said the gastroenterologist did not know about the medication change and that submitting his name to the dietician was "not an option." ( Id. ) Benitez told Plaintiff that he was Board certified as a gastroenterologist and he was qualified to provide medication for Crohn's disease. ( Id. )
Plaintiff attempted to show Benitez an excerpt from Understanding and Caring for Human Diseases by Marcia Borgstadt, but Benitez "disregarded" that information. ( Id. ) A nurse walked into the consultation room and accused Plaintiff of trying to tell the doctor what to do. Plaintiff responded that she was disrupting a private conversation. The nurse then told the prison's "Green Team" that Plaintiff was being disruptive. Plaintiff told Benitez that he had filed a grievance about his previous visit and that a lawsuit would follow. ( Id. at PageID 5-6.)
According to Plaintiff, he is suffering from a "terminal illness due to Crohn's Disease and has been undergoing this treatment since his incarceration." ( Id. at PageID 6.) Plaintiff complains that
Doctor Benitez, refused to take terminal illness due to Crohn's Disease provide pain medication refer to specialist mucosal surface entirely ulcerated and replaced by an active inflammatory exudate refer name to food dietician send to Lois Deberry Special Needs for housing.
( Id. ) Plaintiff seeks money damages under Title II of the ADA. ( Id. at PageID 6-7.)
Because Plaintiff's complaint alleges a danger of serious harm due to a failure properly to treat a chronic condition, he has arguably satisfied the "imminent danger" exception to § 1915(g). Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 582-83 (6th Cir. 2013) ("[A]lleging a danger of serious physical injury as a result of being presently denied adequate medical treatment for a chronic illness satisfies the ...