United States District Court, W.D. Tennessee, Western Division
ORDER TO MODIFY THE DOCKET, DENYING MOTIONS TO
PROCEED IN FORMA PAUPERIS, DIRECTING PLAINTIFF TO PAY THE
$400 CIVIL FILING FEE, DENYING PENDING MOTIONS AND
PROHIBITING FILING OF FURTHER MOTIONS UNTIL THE FILING FEE IS
D. TODD UNITED STATES DISTRICT JUDGE.
April 1, 2016, Plaintiff Ricky Benson a/k/a Rickey Benson
(“Benson”), booking number 15107847, who at the
time of filing was incarcerated at the Shelby County Criminal
Justice Complex (“Jail”) in Memphis, Tennessee,
filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 accompanied by a motion for leave to proceed
in forma pauperis. (ECF Nos. 1 & 2.) Plaintiff
filed two additional copies of his motion to proceed in
forma pauperis on April 13, 2016 (ECF No. 5) and April
20, 2016 (ECF No. 9). The Clerk shall record the Defendants
as the State of Tennessee; Shelby County; Shelby County
Sheriff William Oldham; Chief Jailer Robert Moore; Lieutenant
First Name Unknown (“FNU”) Benn; Deputy Jailer
Mr. FNU Brantley; Deputy Jailer Mr. FNU Holmes; Deputy Jailer
Mr. FNU Cooperwood; Deputy Jailer Ms. FNU Polk; Deputy Jailer
Mr. FNU Hyman; and Grievance Coordinator Ms. FNU Woods.
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.” 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 at least three previous civil rights lawsuits in
this district while he was incarcerated that were dismissed
for failure to state a claim or as frivolous. Therefore,
Plaintiff may not file any action in this district while he
is still incarcerated 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 he is in imminent danger of physical harm due to
threats to poison his food and because he allegedly is being
set up to be killed by the Defendants due to statements in
his grievances 401886 and 406325, which Benson contends were
rejected as non-grievable by Defendant Woods to cover-up the
civil rights violations by Defendants Brantley, Holmes and
Cooperwood committed per the direction of Defendants Oldham,
Moore, and Benn. (ECF No. 1 at 2-3.) Benson alleges that he
was moved from 2-N-pod cell #9 to 2-M-pod cell #10, where
Defendants Polk and Hyman were authorized to violate his
civil rights because of Benson's grievances.
(Id. at 3.) Benson contends that he is losing an
excessive amount of weight due to not eating his breakfast
and lunch because the State of Tennessee and Shelby County
are paying Defendant Oldham and his subordinates to poison
his food and to set him up to be killed. (Id.)
seeks $1 million for assault, cruel and unusual punishment,
abuse of authority, retaliation, personal animosity,
discrimination, humiliation and embarrassment, intimidation,
mental and emotional distress, and pain and suffering.
attached grievances 401866 and 406235. (ECF No 1-1.) In
grievance 401866, filed on March 8, 2016, Benson alleges that
he was moved due to their conspiracy of retaliation from
grievances filed previously. (ECF No. 1-1 at 1.) Benson
contends that the new cell is unclean, the water does not
work, and Defendants Brantley, Holmes, and Cooperwood
attempted to harm him by confiscating Benson's tote which
stores his legal mail, clothes, and commissary items.
(Id.) Benson further alleges that he heard officers
whispering in the hallway that Benson's food would be
poisoned or they would set someone up to kill Benson whenever
he left his cell. (Id.)
grievance 406235, filed March 15, 2016, Benson alleges that
Defendant Polk has been poisoning his breakfast and lunch,
and then paying male officers to serve his food, which is
causing Benson not to eat breakfast and lunch. (ECF No. 1-1
the not the first time Benson has alleged in a conclusory
manner that his food was being poisoned. "Allegations
that are conclusory, ridiculous, or clearly baseless are . .
. insufficient for purposes of the imminent-danger
exception." Taylor v. First Med. Mgmt., 508
F.App'x 488, 492 (6th Cir. 2012); see also Vandiver
v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th
Cir. 2013) (same); Chance v. Tennessee, 47
F.App'x 762, 763 (6th Cir. 2002) ("Finally, Chance
has not established that he falls within the ‘imminent
danger of serious physical injury' exception to §
1915(g). Chance's conclusory allegations that he was the
target of a government-sponsored assault, or ‘contract
hit, ' are completely unsupported by any evidentiary
material and appear to be a thinly veiled rehashing of
similar arguments made and rejected in his previous lawsuit .
. . ."). Threats that an inmate will be injured in the
future are insufficient to satisfy the "imminent
danger" requirement. See, e.g.,
Rittner v. Kinder, 290 F.App'x at 798; Davis
v. Cook, 4 F.App'x 261, 262 (6th Cir. 2001);
Johnson v. Anderson, No. 2:09-CV-1441, 2009 WL
4064135, at *2 (E.D. Mich. Nov. 20, 2009); Tucker v.
Shaheen, No. 09-12942, 2009 WL 3199688, at *3 (E.D.
Mich. Sept. 30, 2009). Therefore, Benson's allegations
are insufficient to satisfy the "imminent danger"
exception to § 1915(g).
has “failed to plead facts supporting a finding of
imminent danger on the date that he filed his
complaint.” Taylor v. First Medical Mgmt, 508
F.App'x 488, 492-93 (6th Cir. 2012). Because this
complaint does not come within the exception to 28 U.S.C.
§ 1915(g), the Court cannot address its merits unless
Benson first tenders the civil filing fee. Therefore, the
applications for leave to proceed in forma pauperis
are DENIED pursuant to 28 U.S.C. § 1915(g). Plaintiff is
ORDERED to remit the entire $400 civil filing fee within
thirty (30) days after the date of this order.
has filed several other motions, including three motions for
a “speedy civil docket, preliminary
injunction/restraining order, intervention, trial discoveries
order and appointment of counsel . . . and for Objection of
U.S. Dist. Judge J.D. ...