Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kennedy v. Schofield

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

March 16, 2017

WAYNE T. KENNEDY a/k/a TIM DEWAYNE SMITH Plaintiff,
v.
DERRICK SCHOFIELD, ET AL., Defendants.

         ORDER 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

          JAMES D. TODD UNITED STATES DISTRICT JUDGE.

         On 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.

         Under the PLRA, a prisoner bringing a civil action must pay the full filing fee required by 28 U.S.C. § 1914(a).[1] 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 three previous civil rights lawsuits in this district that were dismissed for failure to state a claim or as frivolous.[2] 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).

         Kennedy 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.)

         Kennedy 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.)

         From 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.)

         On 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. (Id.)

         On 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.)

         Kennedy 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; ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.