United States District Court, E.D. Tennessee, Knoxville
pro se, Corey Alan Bennett, an inmate confined to the
Riverbend Maximum Security Institution (“RMSI”),
has submitted this civil rights complaint for damages under
42 U.S.C. § 1983 [Doc. 2], as well as an application for
leave to proceed in forma pauperis [Doc. 1]. For the
following reasons, Plaintiff's motion for leave to
proceed in forma pauperis will be
DENIED, no process shall issue, and this
case will is DISMISSED without prejudice to
Plaintiff filing a fee-paid pleading pursuant to the
three-strike rule set forth in 28 U.S.C. § 1915(g).
alleges that on November 1, 2014, while incarcerated at the
Morgan County Correctional Complex (MCCX), he was
“sexually assaulted/raped” by a MCCX officer
[Doc. 2 p. 4]. Plaintiff claims that he reported the incident
to Shawn Phillips, David Sexton, and Charlie Davison
(collectively “Defendants”) but nothing was done
about the matter [Id.]. Instead, Defendants warned
Plaintiff to “keep [his] mouth shut” or else
“they would have [him] killed” [Id.].
was thereafter transferred to Northeast Correctional Complex
(NECX) where Plaintiff asserts that Defendants told the NECX
officers to starve him and to kill him if he “t[old]
anyone about the MCCX officer sexually assaulting
[him]” [Id.]. Plaintiff claims that the NECX
officers complied with Defendants' orders and denied
Plaintiff food [Id.]. Consequently, Plaintiff lost
eight pounds in one week [Id.].
argues that his life is in imminent danger and, thus, the
three-strike provision should be waived and he should be
granted permission to proceed in forma pauperis
1915(g) of the Prison Litigation Reform Act
(“PLRA”) prevents a prisoner from proceeding
in forma pauperis when the prisoner repeatedly files
meritless lawsuits. Known as the “three-strike”
rule, the provision states:
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 three 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.
28 U.S.C. § 1915(g). Because he has had many more than
three lawsuits previously dismissed as frivolous and for
failure to state a claim,  Plaintiff may not proceed in forma
pauperis and must instead pay the full filing fee in
advance in order to pursue his lawsuit, unless he is under
imminent danger of a serious physical injury. Wilson v.
Paklich, 148 F.3d 596, 603-04 (6th Cir. 1998). Plaintiff
concedes that he has filed more than three actions that have
been dismissed on the grounds enumerated in § 1915(g),
but claims that due to imminent danger of serious physical
injury, the provision must be waived [Doc. 2 p. 4].
Sixth Circuit has established certain generally applicable
parameters of the imminent-danger exception, albeit largely
in unpublished opinions. Vandiver v. Prison Health
Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013). To
begin, the Sixth Circuit has explained that “[t]he
imminent danger exception is essentially a pleading
requirement subject to the ordinary principles of notice
pleading.” Vandiver v. Vasbinder, 416 Fed.
App'x. 560, 562 (6th Cir. 2011). As such, a pro se
plaintiff is “entitled to have his complaint liberally
construed.” Id. Because the exception
constitutes a pleading requirement, a plaintiff “need [
] only to assert allegations of imminent danger; he need not
affirmatively prove those allegations at this stage of
litigation.” Tucker v. Pentrich, 483 Fed.
App'x. 28, 30 (6th Cir. 2012). A plaintiff “must
therefore show that his complaint alleged facts from which a
court, informed by its judicial experience and common sense,
could draw the reasonable inference that [he] was under an
existing danger at the time he filed his complaint.”
Taylor v. First Med. Mgmt., 508 Fed. App'x. 488,
492, 2012 WL 6554645 (6th Cir. 2012). In assessing a case
under 28 U.S.C. § 1915, we are not required to accept
without question the truth of the plaintiff's
allegations. Denton v. Hernandez, 504 U.S. 25, 32
v. Prison Health Servs., Inc. further explains:
In order to allege sufficiently imminent danger, the Sixth
Circuit has held that “the threat or prison condition
must be real and proximate and the danger of serious physical
injury must exist at the time the complaint is filed.”
Rittner v. Kinder, 290 Fed. App'x. 796, 797 (6th
Cir. 2008). “Thus a prisoner's assertion that he or
she faced danger in the past is insufficient to invoke the
exception.” Id. at 797-98; see also
Taylor, 508 Fed. App'x. at 492 (“Allegations
of past dangers are insufficient to invoke the
exception.”); Percival v. Gerth, 443 Fed.
App'x. 944, 946 (6th Cir. 2011) (“Assertions of
past danger will not satisfy the ‘imminent danger'
exception.”); cf. Pointer, 502 F.3d at 371 n.
1 (implying that past danger is insufficient for the
In addition to a temporal requirement, the Sixth Circuit has
explained that the allegations must be sufficient to allow a
court to draw reasonable inferences that the danger exists.
To that end, “district courts may deny a prisoner leave
to proceed pursuant to § 1915(g) when the prisoner's
claims of imminent danger are conclusory or ridiculous, or
are clearly baseless (i.e. are fantastic or delusional and
rise to the level of irrational or wholly incredible).”
Rittner, 290 Fed. App'x. at 798; see also
Taylor, 508 Fed. App'x. at 492 ...