United States District Court, W.D. Tennessee, Eastern Division
WAYNE T. KENNEDY a/k/a TIM DEWAYNE SMITH Plaintiff,
DERRICK SCHOFIELD, ET AL., Defendants.
GRANTING PLAINTIFF'S MOTION TO AMEND, DENYING MOTION TO
PROCEED IN FORMA PAUPERIS, DIRECTING PLAINTIFF TO PAY THE
$400 CIVIL FILING FEE, DENYING THE MOTION FOR TEMPORARY
RESTRAINING ORDER AND PROHIBITING THE FILING OF FURTHER
MOTIONS UNTIL THE FILING FEE IS PAID
D. TODD UNITED STATES DISTRICT JUDGE.
March 7, 2016, Plaintiff Wayne T. Kennedy a/k/a Tim DeWayne
Smith (“Kennedy”), who at the time of filing was
confined at the Northeast Correctional Complex in Mountain
City, Tennessee, filed a pro se complaint pursuant
to 42 U.S.C. § 1983 and a motion for leave to proceed
in forma pauperis. (ECF Nos. 1 & 2.) The Clerk
shall record the Defendants as Former TDOC Commissioner
Derrick Schofield; Former West Tennessee State Penitentiary
(“WTSP”) Warden James Holloway; the State of
Tennessee; WTSP Associate Warden T. Markland; WTSP Associate
Warden First Name Unknown (“FNU”) Fritz; Hardeman
County Correctional Facility (“HCCF”) Warden
Grady Perry; HCCF Associate Warden Charlotte Burns; HCCF
Chief of Security Brian Ponds; WTSP Re-Entry Program Manager
J. Barrett; WTSP Dr. Jorge Benitez; WTSP Dr. FNU Johnson;
WTSP Unit Manager FNU Hughes; HCCF Captain FNU Godwin; HCCF
Captain FNU Jenkins; TDOC Commissioner/Designee Darnel
Peterson; HCCF Captain Christopher G. Patton; and HCCF Senior
Correctional Officer (“C/O”) FNU Prewitt.
the PLRA, 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).
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.
“[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).
has filed three previous civil rights lawsuits in this
district that were dismissed for failure to state a claim or
as frivolous. Therefore, Plaintiff may not file any
action in this district in which he proceeds in forma
pauperis unless he demonstrates that he is under
imminent danger of serious physical injury. The assessment of
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.App'x 560, 561-62 (6th Cir. 2011);
Rittner v. Kinder, 290 F.App'x 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).
alleges that on December 16, 2015, he was transferred from
HCCF to WTSP, and he informed Defendants Hughes and Taylor
about his inability to take a shower due to his confinement
in a wheelchair. (ECF No. 1 at 5.) Kennedy also wrote an
emergency grievance to the doctor pertaining to the apparent
replacement of his medication Roboxin with Neurontin, which
he was told that he would need to address with the doctor.
(Id.) Kennedy alleges that he spoke with Defendant
Barret about his medication issue and was assured that he
would have the proper medicine. (Id.) On December
18, 2015, after speaking with Defendants Markland and Hughes
and Case Manager Burnett, who is not a party, about the
failure to get his medicine or see a doctor, Kennedy was
called to the medical department for an x-ray. (Id.)
However, Kennedy refused the x-ray because he said it did not
affect his core issues or medication; he was then transferred
to segregation which, he contends, was in retaliation for
requesting the proper medicine and housing. (Id.)
Kennedy sought treatment again on December 21, 2015, for
chest and body muscle spasms, but was told by a nurse that he
would not receive treatment until he agreed to an x-ray.
(Id. at 6.)
also alleges that due to the lack of handicap accommodations,
he was unable to take a shower from December 16, 2015, the
date of his intake, though December 31, 2015, when he was
taken to the infirmary to shower in thirty-degree cold water.
(Id. at 6-7.) Prior to that date, Kennedy spoke at
various times with several individuals about the lack of
handicap accommodations including unnamed Unit 3A staff
members, Case Manager Jones, and Defendants Holloway and
Markland. (Id. at 6.) Kennedy continued to be unable
to shower for days at a time. (Id. at 6-7.)
January 1, 2016, through January 12, 2016, Kennedy was seen
by doctors at WTSP where he asked to return to his previous
medication, and although Defendant Benitez performed an MRI,
as well as had blood work done, Kennedy was told that he
would not get to return to his medication until the doctor
looked at his x-rays. (Id. at 7.)
January 14, 2016, Kennedy was transferred back to HCCF where
he was taken to medical and later placed in segregation
because Defendants Prewitt and Patton refused to place him in
a handicap accessible cell. (Id.) Kennedy alleges
that he was denied a shower by Sergeant Smith and
Correctional Officer Sharpe. (Id. at 8.) He later
spoke with Defendant Godwin, who refused to remove his
cellmate so that he could have privacy to wash at the sink.
(Id.) Even though he spoke with several staff
members about getting a shower or moving to a handicap cell,
Kennedy finally was forced to use the wash pan and his
cellmate was moved to another cell by Defendant Ponds.
January 19, 2016, Kennedy was escorted to medical by Nurse
Practitioner Herr, who told Kennedy the medication he had
been deprived of at WTSP would be reordered and would take
two days to arrive. (Id.) At that time Kennedy was
also promised he would be taken to medical for a shower, but
it did not happen. (Id.)
alleges that after speaking with Defendants Perry, Burns and
Ponds on January 20, 2016, he was told that he would be
placed in a housing unit with handicap accommodations.
(Id.) However, the inmate who was already in the
cell to which Kennedy was assigned stayed there, and Kennedy
was told that Defendant Ponds was going to speak with the
inmate about the housing assignment. (Id.) Kennedy
was told he could “stay out all night until the next
day” and would not be placed in lock-up; nevertheless,
Kennedy was placed in lock-up during the next shift.
(Id.) Kennedy was released from lock-up the next
day, January 21, 2016, and assigned to another cell; ...