United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
September 13, 2017, an Order (Doc. No. 3) was entered denying
the Plaintiff's Application (Doc. No. 2) to proceed in
forma pauperis. 28 U.S.C. § 1915(g). The Plaintiff was
granted thirty (30) days in which to pay the filing fee of
four hundred dollars ($400) or risk dismissal of this action.
did not comply with the Court's instructions by paying
the filing fee. Instead, he filed a second Application (Doc.
No. 4) to proceed in forma pauperis. In it, the Plaintiff
asserted that he should be allowed to proceed as a pauper
because Congress is prohibited from making any law that
interferes with his right to seek redress for his grievances.
(Id at 4.) The original Application had not been
denied in error. Plaintiff's second Application was
denied as well. (Doc. No. 5.)
before the Court are Plaintiff's third Application (Doc.
No. 8) to proceed in forma pauperis and, should this
Application be denied, a Motion (Doc. No. 7) “to place
the above docketed case in abeyance, set aside, suspend until
the Plaintiff is able to pay the full $400 filing fee.”
A prisoner Plaintiff with three or more strikes may proceed
in forma pauperis if he is in imminent danger of serious
physical injury. 28 U.S.C. § 1915(g). In support of the
third Application to proceed in forma pauperis, the Plaintiff
claims that he is in imminent danger of serious physical
injury. To illustrate, he avers that he “continues to
suffer daily from Chronic Illnesses as to say diabetes,
hypertension, enlarged prostate, acid reflux that are not
being treated adequately at the facility USP/Hazelton.”
(Doc. No. 8 at 1.) It is further claimed that the prison
medical staff have discontinued two of his prescriptions,
including the insulin needed for his diabetes. (Id.)
failure to receive adequate treatment for potentially
life-threatening illnesses constitutes imminent danger
sufficient to excuse three or more strikes. Ibrahim v.
District of Columbia, 463 F.3d 3, 6-7 (D.C. Cir. 2006).
The Plaintiff alleges that the lack of adequate medical
treatment has caused him to experience blurry vision and
swelling of the feet and hands which “will continue to
lead to amputation of the feet and limbs, blindness, kidney
failure, heart attack, strokes, coma and death.” (Doc.
No. 8 at 1-2.) Because this suggests an imminent danger of
serious physical injury, the Order (Doc. No. 3) denying the
Plaintiff pauper status is hereby VACATED
and the third Application (Doc. No. 8) is
GRANTED. The Clerk shall file the Complaint
in forma pauperis. 28 U.S.C. § 1915(a).
Plaintiff is herewith ASSESSED the civil
filing fee of $350.00. Pursuant to 28 U.S.C. §
1915(b)(1)(A) and (B), the custodian of the Plaintiff's
inmate trust account at the institution where he now resides
is directed to submit to the Clerk of Court, as an initial
partial payment, whichever is greater of:
(a) twenty percent (20%) of the average monthly deposits to
the Plaintiff's inmate trust account;
(b) twenty percent (20%) of the average monthly balance in
the Plaintiff's inmate trust account for the prior six
the custodian shall submit twenty percent (20%) of the
Plaintiff's preceding monthly income (or income
credited to the Plaintiff's trust account for the
preceding month), but only when such monthly income exceeds
ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($350.00) as authorized under 28
U.S.C. § 1914(a) has been paid to the Clerk of Court.
28 U.S.C. § 1915(b)(2).
granting of Plaintiff's Application for pauper status
has rendered MOOT his Motion (Doc. No. 7)
to hold this case in abeyance until he can afford to pay
the filing fee in full. Therefore, the Motion to hold this
case in abeyance is DENIED for that
reason. The Court is now obliged to review the Complaint to
identify colorable claims or dismiss the Complaint. 28
U.S.C. § 1915(e)(2).
February 23, 2012, a federal jury found the Plaintiff
guilty of conspiracy to distribute and to possess with
intent to distribute cocaine. United States v. Herman
Majors, No. 3:09-cr-00047-4 (M.D. Tenn.), at Doc. No.
264. For this crime, he received a sentence of three
hundred sixty months (360) in prison, to be followed by
five years of supervised release. (Id at Doc. No.
300.) On appeal, the conviction was affirmed. (Id
at Doc. No. 395.) Later, the Supreme Court denied
Plaintiff's petition for a writ of certiorari.
(Id at Doc. No. 405.)
Plaintiff brings this action pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680,
against the United States of America, the Attorney General
for the United States, James Richard Whitsett, a Task Force
Officer for the Drug Enforcement Administration, Sunny A.M.
Koshy, an Assistant United States Attorney for this
judicial district, and the United States Marshal's
Service, alleging that the defendants are liable for false
arrest, false imprisonment and malicious prosecution. More
specifically, the Plaintiff claims that the United States
“had no proof to indict, arrest, detain, prosecute
and sentence” him. (Doc. No. 1 at 3.) He seeks
damages in the amount of $100 million.
Plaintiff alleges that he is the victim of a false arrest.
A false arrest claim requires the Plaintiff to prove that
the arresting officer lacked probable cause to arrest him.
Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.
2002). Probable cause has been defined as the “facts
and circumstances within the officer's knowledge that
are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is
about to commit an offense”. Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979). An arrest pursuant
to a facially valid warrant is normally a complete defense
to a federal constitutional claim of false arrest.
Voyticky v. Village of Timberlake, Ohio, 412 F.3d
669, 677 (6th Cir. 2005). A facially valid warrant was
issued for the Plaintiff's arrest. United States v.
Herman Majors, supra at Doc. No. 13. He has offered no
factual allegations that would suggest otherwise.
Therefore, the Plaintiff has failed to state a claim of
false arrest that would entitle him to relief.
Plaintiff also claims that the defendants falsely
imprisoned him. False imprisonment consists of detention
without legal process. Wallace v. Kato, 549 U.S.
384, 389 (2007). In this regard, an indictment was issued
charging the Plaintiff. United States v. Herman
Majors, supra at Doc. No. 9. A facially valid warrant
was issued for the Plaintiff's arrest. (Id at
Doc. No. 13.) The Plaintiff was arrested pursuant to that
warrant. (Id at Doc. No. 60.) The Plaintiff made
an initial appearance before a Magistrate Judge on the day
of his arrest. (Id at 62.) Counsel was appointed
to represent the Plaintiff. (Id at Doc. No. 64.)
The government filed a motion for detention that the
Plaintiff did not contest. (Id at Doc. No. 65.)
The Plaintiff received all the legal process he was
entitled to prior to his detention as he awaited trial. In
any event, an arrest pursuant to a valid warrant is
normally a complete defense to a claim of false
imprisonment. Voyticky, supra at 677. As a result,
the Plaintiff has failed to state an actionable claim for
Plaintiff's final claim is that he is a victim of
malicious prosecution. The tort of malicious prosecution
consists of four elements. These elements are (1) that the
defendants brought an action against the Plaintiff; (2)
that the action was terminated in the Plaintiff's
favor; (3) that the defendants acted with malice; and (4)
that the defendants lacked probable cause to believe the
facts upon which the prosecution was based. Lawson v.
Kroger Co., 997 F.2d 214, 216 (6th Cir. 1993). An
indictment is prima facie evidence that the defendants had
probable cause to believe the facts upon which the
Plaintiff's prosecution was based. Harris v. United
States, 422 F.3d 322, 327 (6th Cir. 2005). Moreover,
the Plaintiff's prosecution did not end in his favor.
As a consequence, the Plaintiff has failed to state an
actionable claim for malicious prosecution.
Complaint fails to state an actionable claim for false
arrest, false imprisonment and malicious prosecution. These
claims, therefore, are hereby DISMISSED.
28 U.S.C. § 1915(e)(2).
Court is obliged, however, to liberally construe pro
se pleadings. Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Stanley v. Vining, 602 F.3d 767,
771 (6th Cir. 2010). As noted above, the Plaintiff ...