United States District Court, W.D. Tennessee, Eastern Division
RICKY FLAMINGO BROWN. SR., Plaintiff,
GRADY PERRY, ET AL., Defendants.
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND DIRECTING PLAINTIFF TO PAY THE $400 CIVIL FILING
FEE, ADDRESSING PENDING MOTIONS AND PROHIBITING FILING OF
FURTHER MOTIONS AND DOCUMENTS UNTIL THE FILING FEE IS
D. TODD UNITED STATES DISTRICT JUDGE
March 6, 2017, Plaintiff Ricky Flamingo Brown, Sr., Tennessee
Department of Correction (TDOC) prisoner number 134855, who
is currently incarcerated at the Riverbend Maximum Security
Institution (RMSI) in Nashville, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983,
accompanied by a motion seeking leave to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The complaint concerns
events that occurred while Brown was previously incarcerated
at the Hardeman County Correctional Facility (HCCF) in
Whiteville, Tennessee. The Clerk shall record the Defendants
as HCCF Warden Grady Perry, HCCF Assistant Warden Daniel
Akers, HCCF Instructor Kenneth Wilkes, Captain Smith,
 CoreCivic,  and Hardeman
the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§§ 1915(a)-(b), 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.
(ECF No. 4.) He filed a similar amendment on April 13, 2017.
(ECF No. 7.)
“[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).
has filed more than three previous civil rights lawsuits
while he was incarcerated that were dismissed for failure to
state a claim or as frivolous. Therefore,
Plaintiff may not proceed in forma pauperis in any
civil action filed while he is incarcerated unless he
demonstrates that he is under imminent danger of serious
physical injury. The assessment of whether a prisoner is in
imminent danger must be 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) (stating that the
injury must be “presently existing” when the
plaintiff filed the complaint); 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).
complaint in this case is comprised of a form § 1983
complaint (ECF No. 1); a separate “Statement of
Complaint” (ECF No. 1-2); a separate affidavit (ECF No.
1-3) with exhibits (ECF No. 1-4); a separate document titled
“Requested Damages for Relief” (ECF No. 1-5) with
exhibits (ECF No. 1-6); two documents titled “Amendment
to Original Complaint” (ECF Nos. 1-7 & 1-8); and
numerous additional exhibits (ECF No. 1-1). However, all of
the claims raised in Brown's complaint concern events
that occurred during his previous incarceration at the HCCF.
For purposes of determining imminent danger, the Court
summarizes those allegations as follows. Brown alleges that
in December 2016, he was exposed to poor conditions of
confinement including unsanitary conditions, was injured by
excessive force, was denied access to the courts, was
assigned to segregation without due process, was retaliated
against, and was endangered by a failure to supervise.
(See ECF Nos 1, 1-2, 1-7, & 1-8.) On October 4,
2017, Brown filed a motion to amend in which he appears to
further challenge his disciplinary proceeding and the outcome
of his state-court appeal thereof as a violation of due
process. (ECF No. 9.) That motion is GRANTED.
Brown asserts in his complaint that he was in imminent danger
at the HCCF, at the time that he actually filed the complaint
in March 2017 he already had been transferred from the HCCF
to the RMSI. (See ECF No. 1 at 1.) Brown does not
allege that he continued to be in imminent danger at the RMSI
as a result of any events that had previously occurred at the
HCCF. Likewise, the October 2017 amendment alleging a further
violation of due process in connection with his disciplinary
proceeding contains nothing to suggest he was in imminent
danger at the time it was filed. Thus Brown has “failed
to plead facts supporting a finding of imminent danger on the
date that he filed his complaint” or his amended
complaint. Taylor v. First Med. Mgmt., 508 F.
App'x 488, 492-93 (6th Cir. 2012). Because neither the
original complaint nor the amendment comes within the
exception to 28 U.S.C. § 1915(g), the Court cannot
consider Brown's claims on the merits unless he first
tenders the civil filing fee. Therefore, the motion to
proceed in forma pauperis is DENIED pursuant to
is ORDERED to remit the entire $400 civil filing fee within
thirty (30) days after the date of this order. Failure to do
so will result in the assessment of the filing fee from
Brown's inmate trust account without regard to the
installment procedures and dismissal of this action for
failure to prosecute. Alea, 286 F.3d at 381-82.
filed a motion for appointment of counsel on March 15, 2017.
(ECF No. 5.)
stage of the proceeding, that motion is premature and is
DENIED. Likewise, his motion for production of medical
records (ECF No. 6) and motion to hold a scheduling
conference (ECF No. 8) are premature and are DENIED. Brown is
hereby PROHIBITED from filing any further motions or
documents in this case until the full filing fee of $400 is
paid. The Clerk is directed not to accept ...