United States District Court, M.D. Tennessee, Nashville Division
RANDALL TURNER, No. 133233, Plaintiff,
TONY PARKER, et al., Defendants.
A. Trauger, United States District Judge.
Turner, an inmate of the Turney Center Industrial Complex in
Only, Tennessee, brings this pro se action under 42
U.S.C. § 1983 Tony Parker, Jason Woodall, Jonathan Lebo,
Johnny Fitz, Wanda Markland, Charles Sweat, Captain f/n/u
Taylor, Kevin Johnson, and Arthur Bellott, alleging
violations of the plaintiff's civil rights. (Docket No.
1). The plaintiff seeks pauper status (Docket Nos. 2, 11, 19,
20, 21) and the appointment of counsel (Docket No. 3). The
plaintiff also has filed two motions to supplement the record
(Docket Nos. 8 and 9), a notice (Docket No.15), and a motion
for an extension of time (Docket No. 22).
Application to Proceed In Forma Pauperis
plaintiff falls within the scope of 28 U.S.C. § 1915(g),
which bars prisoners from bringing a civil action or
appealing a judgment in a civil action in forma
pauperis if the prisoner has, on three (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. 28 U.S.C. § 1915(g).
he has had at least three lawsuits previously dismissed as
frivolous,  plaintiff Turner may not proceed in
forma pauperis and instead must pay the full filing fee
in advance in order to pursue his lawsuit, unless he
is under imminent danger of serious physical injury.
Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir.
plaintiff, who is not a member of a gang, alleges that he is
in imminent danger because at the West Tennessee State
Penitentiary, non-gang members are housed with gang members,
a practice that the defendants know poses a risk of harm to
non-gang member inmates. In particular, on November 9, 2017,
members of the Crips gang “strip searched” and
assaulted the plaintiff in the kitchen restroom. (Docket No.
1 at 2). As a result of the assault, the plaintiff received
four stitches over his right eye. (Id. at 3).
Although the plaintiff met with a counselor about being
placed in protective custody on November 22, 2017, the
plaintiff was moved from a single cell to a double cell with
a Vice Lord gang member on December 7, 2017. (Id. at
7). Other gang members “have been yelling through the
[cell] doors that the Plaintiff is gay . . . trying to get
[the Plaintiff] and V. Lord into a fight.”
(Id.) On December 18, 2017, when the plaintiff was
in the shower, the Vice Lord gang member tried to take all of
the plaintiff's property. (Id.) On December 24,
2017, officers Doyle and McKinney tried to move the plaintiff
into a cell with a member of the Crips gang and the plaintiff
refused to move. (Id. at 8). On December 26, 2017, a
Vice Lord gang member delivered the plaintiff's lunch
tray to him, which the plaintiff refused to eat, fearing for
his safety as no maximum security inmate is supposed to have
access to the food of an inmate in protective custody.
(Id. at 9).
plaintiff was subsequently transferred and is currently
confined at the Turney Center Industrial Complex. He alleges
that, like at the West Tennessee State Penitentiary, non-gang
member inmates are housed with known gang member inmates, and
that the gang inmates at Turney Center are allowed to
“run wild.” (Docket No. 17 at 2). According to
the plaintiff, these inmates have access to knives and
previously have engaged in attacks with the knives.
(Id.) The plaintiff further alleges that prison
officials are unwilling to protect the plaintiff from harm by
gang members because these defendants refuse to move the
plaintiff “to a less violent unit.” (Id.
purposes of § 1915(g), the court considers whether a
plaintiff is in imminent danger at the time of the filing of
the complaint. Vandiver v. Vasbinder, 416 Fed.Appx.
560, 562 (6th Cir. 2011) (“[T]he plain language of
§ 1915(g) requires the imminent danger to be
contemporaneous with the complaint's filing.”).
Although the United States Court of Appeals for the Sixth
Circuit has not offered a precise definition of imminent
danger, it has suggested that the threat of serious physical
injury “must be real and proximate.” Rittner
v. Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008).
Moreover, the Sixth Circuit has noted that “[t]he
imminent danger exception is essentially a pleading
requirement subject to the ordinary principles of notice
pleading.” Vandiver, 416 Fed.Appx. at 562.
pro se plaintiff, Turner is entitled to have his
complaint liberally construed. Vandiver, 416
Fed.Appx. at 562. Moreover, at this stage in the proceedings,
the court must accept as true the factual allegations in the
complaint, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). The court cannot decline pauper status simply because
it finds the factual allegations of imminent danger to be
improbable or unlikely. Id.
these principles in mind, the court finds that the complaint
alleges a presently existing, continuing imminent danger to
the plaintiff's well-being. Although the plaintiff's
allegations regarding his confinement at the West Tennessee
State Penitentiary no longer constitute imminent danger of
serious physical harm because the plaintiff has been
transferred to another facility, the plaintiff alleges that
his current place of confinement, Turney Center Industrial
Complex, exposes the plaintiff to similar safety issues.
According to the plaintiff, non-gang member inmates are
housed with known inmate gang members who are allowed to
“run wild.” (Docket No. 17 at 2). According to
the plaintiff, the inmate gang members have access to knives,
and the plaintiff fears for his safety. (Id.) The
plaintiff further alleges, as an ongoing matter, that prison
officials (excluding Ms. Himes) are unwilling to protect the
plaintiff from harm by gang members because they refuse to
move the plaintiff away from the gang member inmates.
(Id. at 1).
plaintiff's allegations are not necessarily delusional or
irrational, and the court must, for now, accept them as true.
The court therefore finds that the plaintiff has alleged
imminent danger of serious physical injury. In addition, the
plaintiff specifically requests injunctive relief to prevent
the plaintiff from being housed with inmate gang members to
keep their threats of harm to the plaintiff from coming to
fruition. Accordingly, the court will grant the plaintiff
permission to seek pauper status.
PLRA Screening Standards
determined that the plaintiff may proceed as a pauper, the
plaintiff's complaint is before the court for an initial
review pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(a). Under 28 U.S.C. § 1915(e)(2)(B), the court
must dismiss any portion of a civil complaint filed in
forma pauperis that fails to state a claim upon which
relief can be granted, is frivolous, or seeks monetary relief
from a defendant who is immune from such relief. Section
1915A similarly requires initial review of any
“complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of
a governmental entity, ” i d. § 1915A(a),
and summary dismissal of the complaint on the same grounds as
those articulated in § 1915(e)(2)(B). Id.
Motions to Supplement and Notice
plaintiff filed two motions to supplement his complaint
(Docket Nos. 8 and 9) and a notice to the court (Docket No.
The first motion to supplement documents the plaintiff's
efforts to exhaust his administrative remedies prior to
filing this lawsuit. The second motion to supplement provides
additional context for the claims raised in the original
complaint. No. new defendants or claims are added.
notice to the court, the plaintiff describes events occurring
after the plaintiff's transfer from the West Tennessee
State Penitentiary to the Morgan County Correctional Complex
and then to the Turney Center Industrial Complex. In his
notice, the plaintiff seeks to add another defendant to this
action, Dr. f/n/u Bigham. (Docket No. 15). The plaintiff
alleges that Bigham, who works at the Turney Center
Industrial Complex, refuses to provide medical treatment to
the plaintiff. (Id. at 2). The court construes the
plaintiff's notice as a motion to amend the complaint.
15(a) (2) of the Federal Rules of Civil Procedure states that
leave to amend should be freely given “when justice so
requires.” In deciding whether to grant a motion to
amend, courts should consider undue delay in filing, lack of
notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments,
undue prejudice to the opposing party, and futility of
amendment. Brumbalough v. Camelot Care Ctrs., Inc.,
427 F.3d 996, 1001 (6th Cir. 2005).
appears to be no undue prejudice to the opposing parties by
permitting the plaintiff to amend his complaint at this time;
no defendants have been served. With regard to the futility
of the plaintiff's proposed amendment, the court finds
that the law is well settled that the Eighth Amendment to the
United States Constitution requires that inmates be provided
with reasonably adequate food, clothing, shelter, sanitation,
recreation, and medical care. See Grubbs v. Bradley,
552 F.Supp. 1052, 1119-24 (M.D. Tenn. 1982). The failure to
provide such necessities is a violation of an inmate's
right to be free from cruel and unusual punishment. See
Bellamy v. Bradley, 729 F.2d 416, 419 (6th
Cir. 1984). The United States Supreme Court has held that
deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976); Brooks v.
Celeste, 39 F.3d 125, 127 (6thCir. 1994). The
court finds that the plaintiff's proposed amendment is
not futile; therefore, the plaintiff's motion to amend
will be granted, and Dr. f/n/u Bigham will be added as a
defendant in his or her individual capacity to this action.
court will grant the motions to supplement and screen the
original complaint, as informed by the plaintiff's
supplements to the original complaint and the notice to the
court, pursuant to the Prison Litigation Reform Act