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Benson v. State

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

March 20, 2017

RICKY BENSON a/k/a RICKEY BENSON, Plaintiff,
v.
STATE OF TENNESSEE, ET AL., Defendants.

          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 PAID

          JAMES D. TODD UNITED STATES DISTRICT JUDGE.

         On 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, [1] 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.

         Under 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).

         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.” 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 in this district while he was incarcerated that were dismissed for failure to state a claim or as frivolous.[2] 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).

         Benson 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.)

         Benson 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. (Id.)

         Benson 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.)

         In 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 at 2.)[3]

         This is the not the first time Benson has alleged in a conclusory manner that his food was being poisoned.[4] "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).

         Benson 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.[5]

         Benson 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. ...


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