United States District Court, W.D. Tennessee, Eastern Division
WILLIAM D. HAMBY, JR., Plaintiff,
TONY PARKER, ET AL., Defendants.
ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C.
§ 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING
D. TODD UNITED STATES DISTRICT JUDGE.
13, 2018, Plaintiff William D. Hamby, Jr., who is
incarcerated at the Morgan County Correctional Complex in
Wartburg, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and an application for
leave to proceed in forma pauperis in the U.S.
District Court for the Middle District of Tennessee. (ECF
Nos. 1 & 2.) United States District Judge Aleta A.
Trauger issued an order on July 30, 2018, transferring
Hamby's complaint to this Court because the allegations
in the complaint concern events that occurred at the
Northwest Correctional Complex (NWCX) in Tiptonville,
Tennessee, which is part of the Western District of
Tennessee. (ECF No. 5 at PageID 21.) Pending at the time of
transfer were Hamby's motions to amend his complaint and
to suspend or waive fees. (ECF Nos. 4, 8-10.) This Court
granted the motions to amend but denied Hamby's motion to
suspend or waive fees. (ECF No. 11.)
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 “down payment” of a partial
filing fee and pay the remainder in installments. See
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997) (“When 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 at least four previous civil actions in federal
court that were dismissed for failure to state a claim or as
frivolous. (ECF No. 5 at PageID 20-21.) 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).
alleges that he has hepatitis C and, because he previously
was denied adequate treatment for that disease, now has
cirrhosis of the liver. (ECF No. 1 at PageID 1.) He alleges
that Doctor Tucker informed Doctors Williams and Cadreche
that Hamby needed hepatitis C medication, a liver biopsy, and
surgery, but Doctors Williams and Cadreche, as well as
Commissioner Parker, denied him those treatments.
(Id. at PageID 1-2.) Hamby alleges that the
Defendants now have denied him treatment for his cirrhosis,
including refusing to allow him a medical furlough as
provided by TDOC policy. (Id. at PageID 2.) He
states that he is in “mental anguish” and
“physical pain” from being denied treatment and
pain medication for his cirrhosis. (Id. at PageID
separately alleges that Doctor Conway also denied him proper
treatment for his hepatitis C and now has denied him the
medical furlough and treatment of his cirrhosis. (ECF No. 4
at PageID 15-16.) In his most recent amendment, Hamby alleges
that Defendants Tucker, Collins, and Gregory, have refused
him “ensure for nutrition, harvoni for hep-c, and
vitriol [sic] or revia to help cirrhosis.” (ECF No. 10
at PageID 17-18.)
allegations that the Defendants have refused him treatment
for his chronic medical condition sufficiently alleges that
he was in imminent danger of serious physical injury at the
time he filed his complaint.. See Vandiver v. Prison
Health Servs., Inc., 727 F.3d 580, 587 (6th Cir. 2013)
(“[A] plaintiff who alleges a danger of serious harm
due to a failure to treat a chronic illness or condition
satisfies the imminent-danger exception under § 1915(g),
as incremental harm that culminates in a serious physical
injury may present a danger equal to harm that results from
an injury that occurs all at once.”).
Hamby sufficiently alleges he was in imminent danger, the
Court cannot grant leave to proceed in forma
pauperis because he has yet to fully comply with the
PLRA. In order to take advantage of the PLRA's
installment procedures, a prisoner must properly complete and
submit to the district court, along with the complaint, an
in forma pauperis affidavit and a certified copy of
his trust account statement for the six months immediately
preceding the filing of the complaint. 28 U.S.C. §
1915(a)(2). In this case, Hamby submitted only a
“Uniform Civil Affidavit of Indigency, ” which is
not the standard form used by this Court. (ECF No. 2.) The
Court will therefore require him to file the appropriate
prisoner affidavit form. In addition, the affidavit submitted
by Hamby is not accompanied by certified copy of Hamby's
trust account statement for the six months immediately
preceding the filing of his complaint. Accordingly, Hamby is
ORDERED to submit, within 30 days after the date of this
order, either the entire $400 civil filing fee or a properly
completed and executed in forma pauperis affidavit
form and a copy of his trust account statement for the last
six months. If Hamby needs additional time to file the
required documents, he may request one 30-day extension of
time from this Court. McGore, 114 F.3d at 605.
Hamby timely submits the necessary documents and the Court
finds that he is indigent, the Court will grant leave to
proceed in forma pauperis and assess a filing fee of
$350 in accordance with the installment procedures of 28
U.S.C. § 1915(b). However, if Hamby fails to comply with
this order in a timely manner, the Court will deny leave to
proceed in forma pauperis, assess the entire $400
filing fee from his trust account without regard to the
installment payment procedures, and dismiss the action
without further notice pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute. McGore,
114 F.3d at 605.
Hamby is transferred to a different prison or released, he is
ORDERED to notify the Court immediately, in writing, of his
change of address. Failure to abide by this requirement may
likewise result in the ...