United States District Court, W.D. Tennessee, Eastern Division
JOSHUA DUNN a/k/a JOSHUA P. DUNN a/k/a JOSHUA PAUL DUNN, Plaintiff,
TONY PARKER, ET AL., Defendants.
ORDER TO MODIFY THE DOCKET, DENYING LEAVE TO PROCEED
IN FORMA PAUPERIS, DISMISSING COMPLAINT PURSUANT TO 28 U.S.C.
§ 1915(g), CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN
GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA
D. TODD UNITED STATES DISTRICT JUDGE.
2, 2019, Plaintiff Joshua Dunn a/k/a Joshua P. Dunn a/k/a
Joshua Paul Dunn, who is incarcerated at the Whiteville
Correctional Facility (WCF) in Whiteville, Tennessee, filed a
pro se complaint pursuant to 42 U.S.C. § 1983
and a motion to proceed in forma pauperis. (ECF Nos.
1 & 2.) The Clerk shall record the Defendants as Tony
Parker, Tennessee Department of Correction (TDOC)
Commissioner; Deborah Thompson, TDOC Director of Religious
Programs; David Sexton, TDOC Assistant Commissioner of
Prisons; CoreCivic; WCF Assistant Warden Nicole Walker; Bobby
Leek; WCF Warden Arvil Chapman; Thomas Corman, WCF Health
Administrator; Micheal Williams, Chaplain; Kimberly Goodman,
WCF Trust Fund Officer; Jennifer Williams, Case Manager;
First Name Unknown (FNU) Hale, Case Manager; FNU Jackson,
Case Manager; FNU White, Unit Manager; Correctional Officer
Annette Clear; and FNU Jones, a dentist at the
the Prison Litigation Reform Act, §§ 1915(a)-(b), a
prisoner bringing a civil action must pay the full civil
filing fee. The PLRA 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.
“[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 four previous civil actions in federal court that
were dismissed for failure to state a claim or as
frivolous. Therefore, he may not file any further
action in which he proceeds in forma pauperis unless
he first demonstrates that he is under imminent danger of
serious physical injury. 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
Fed.Appx. 560, 561-62 (6th Cir. 2011); Rittner v.
Kinder, 290 Fed.Appx. 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).
asserts five claims for relief in his complaint. He first
alleges that on December 15, 23018, he fell off his bunk,
hitting the left side of his face and fracturing his jaw
bone. (ECF No. 1 at PageID 4, 6.) Though he called for help,
Defendant Clear allegedly did not follow proper TDOC policy
and denied him medical attention. (Id. at PageID
4-5.) Dunn grieved Clear's actions and received a hearing
but is dissatisfied with the results. (Id. at PageID
next alleges he has been denied an indigent hygiene pack and
that Warden Chapman has failed to correct the actions of his
staff in denying Dunn the pack. (Id. at PageID
further alleges various Defendants have denied him a proper
halal diet, though other inmates have received one.
(Id. at PageID 13-14.)
also alleges that WCF is unsanitary and understaffed,
inadequately addresses inmates' health issues, underpays
and overworks inmates, and contains at least one hallway that
is a fire hazard. (Id. at PageID 15-17.)
Dunn alleges that Defendant Jones x-rayed his jaw in December
2018 but did not send him for surgery until February 2019.
(Id. at PageID 18.) He alleges Defendant Jones
delayed the surgery to save money. (Id. at PageID
these claims sufficiently allege that Dunn was in imminent
danger of serious physical injury when his complaint was
filed. Though Dunn alleges medical treatment for his jaw was
delayed, he eventually did receive surgery. “Assertions
of past danger will not satisfy the ‘imminent
danger' exception.” Percival v. Gerth, 443
Fed.Appx. 944, 946 (6th Cir. 2011). Dunn does not allege that
he currently is in danger of serious injury from the previous
delay. Dunn's allegations regarding the WCF grievance
system, hygiene pack, and non-halal diet do not assert
imminent danger. Dunn's conclusory allegation that a
hallway in WCF is a fire hazard also does not sufficiently
allege imminent danger. See Taylor v. First Med.
Mgmt., 508 Fed.Appx. 488, 492 (6th Cir. 2012) (citing
Rittner v. Kinder, 290 Fed.Appx. 796, 797-98 (6th
Cir. 2008)) (“Allegations that are conclusory,
ridiculous, or clearly baseless are . . . insufficient for
purposes of the imminent-danger exception.”).
complaint therefore does not come within the exception to 28
U.S.C. § 1915(g), and the Court cannot address its
merits unless he first tenders the civil filing fee.
Accordingly, Dunn's motion to proceed in forma
pauperis is DENIED pursuant to § 1915(g). This
action is DISMISSED without prejudice. Dunn may, within
twenty-eight (28) days after the entry of ...