United States District Court, W.D. Tennessee, Eastern Division
ORDER TO MODIFY THE DOCKET, DIRECTING PLAINTIFF TO
COMPLY WITH 28 U.S.C. § 1915(A)(2) AND TO FILE AN
D. TODD UNITED STATES DISTRICT JUDGE
January 17, 2018, Plaintiff Kenneth Eric McFarland, Tennessee
Department of Correction prisoner number 143947,
is incarcerated at the Lois M. Deberry Special Needs Facility
(SPND) in Nashville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1985 and a motion for
leave to proceed in forma pauperis. (ECF Nos. 1
the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§§ 1915(a)-(b), a prisoner bringing a civil action
must pay the filing fee required by 28 U.S.C. § 1914(a).
Although the obligation to pay the fee accrues at the moment
the case is filed, see McGore v. Wrigglesworth, 114
F.3d 601, 605 (6th Cir. 1997), partially overruled on
other grounds by LaFountain v. Harry, 716 F.3d 944, 951
(6th Cir. 2013), the PLRA provides the prisoner the
opportunity to make a “down payment” of a partial
filing fee and pay the remainder in installments. §
1915(b)(2). However, in order to take advantage of the
installment procedures, the prisoner must properly complete
and submit to the district court, along with the complaint,
an in forma pauperis affidavit containing a current
certification by the prison trust account officer and a copy
of his trust account statement for the six months immediately
preceding the filing of the complaint. § 1915(a)(2). In
this case, Plaintiff's affidavit is not accompanied by a
certified copy of his trust account statement. He must
provide the Court with a copy of that document before his
application to proceed in forma pauperis may be
Plaintiff has, while he was incarcerated, filed at least
three prior federal civil rights lawsuits that were dismissed
for failure to state a claim or as frivolous. Therefore,
Plaintiff will not be allowed to proceed in forma
pauperis unless he also demonstrates that his complaint
falls within the “imminent danger” exception to
28 U.S.C. § 1915(g), which provides:
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). 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).
case, although Plaintiff submitted an official form for
complaints brought pursuant to 42 U.S.C. § 1983, most of
that form is blank. (ECF No. 1 at 2-3.) A separate page is
attached which purports to be a complaint pursuant to 42
U.S.C. § 1985. (ECF No. 1-1.) Plaintiff's claim, in
its entirety, states:
Comes now the Plaintiff, Kenneth Eric McFarland, by and thru
himself, pro se states the following: Shannon Hughes, Chief
Jail Administrator accompanied by above said defendants did
willfully, maliciously and deceitfully use conspiratorial act
by himself and his co-conspirators in violation of 42 USCA
1985. It is therefore being respectfully inquired of
abovesaid court to assign an official court date and case no.
so said matter can be brought before U.S. Magistrate James D.
Todd . . . . Plaintiff, Kenneth Eric McFarland asks the
Honorable Court to grant relief in the amount of $50.000.00 .
. . .
(ECF No. 1-1 at 1.) No supporting factual allegations are
the complaint contains no factual details to support his
claim of a conspiracy, the Court cannot adequately determine
whether Plaintiff is in imminent danger. Therefore, Plaintiff
will be required to file an amended complaint.
is ORDERED to submit, within 30 days after the date of this
order, both a copy of his inmate trust account statement for
the last six months and an amended complaint. The text of the
amended complaint must identify each defendant sued, set
forth the specific causes of action that are asserted against
each defendant, and allege sufficient facts to support each
of those claims. If Plaintiff fails to comply with this order
within the time specified, the Court will deny leave to
proceed in forma pauperis, assess the entire $400
filing fee without regard to the PLRA's
installment payment procedures, and dismiss the case without
further notice for failure to prosecute, pursuant to Federal
Rule of Civil Procedure 41(b).