United States District Court, E.D. Tennessee
WILLIAM D. HAMBY, JR., Plaintiff,
TONY PARKER, MICHAEL PARRIS, KEN HUTCHINSON, STANTON HERDLE, E. JONES, and COUNSELOR GRUBBS, Defendants.
MEMORANDUM OPINION AND ORDER
A. VARLAN, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon consideration of State inmate
William D. Hamby, Jr.'s complaint, submitted pursuant to
42 U.S.C. § 1983 [Doc. 1], and his application seeking
to proceed in forma pauperis in this action [Doc.
APPLICATION OF “THREE STRIKES”
Court finds that Plaintiff is barred from proceeding in
forma pauperis because of the “three
strikes” provision of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(g). This
provision provides that an inmate may not proceed in
forma pauperis in a civil action if he has had three or
more cases dismissed as frivolous, malicious, or for failure
to state a claim upon which relief may be granted, unless he
is under imminent danger of serious physical injury. 28
U.S.C. § 1915(g) (quotation marks omitted).
the bevy of § 1983 lawsuits Plaintiff has filed in
federal court, he has previously been held subject to the
“three-strike” rule. See Hamby v. Rhude,
No. 3:19-CV-97-RLJ-HBG [Doc. 6] (E.D. Tenn. Apr. 5, 2019)
(noting Plaintiff's previous dismissals under §
1915(g) in Hamby v. Rhude, No. 3:19-CV-212, 2019 WL
149172, at *1 (M.D. Tenn. Apr. 3, 2019) (citing four prior
cases in Middle District that were dismissed for failure to
state a claim, i.e., Hamby v. Lingle, No.
3:12-cv-0942 (M.D. Tenn. Sept. 18, 2012); Hamby v.
Johnson, No. 3:12-cv-1303 (M.D. Tenn. Jan. 10, 2013);
Hamby v. Johnson, No. 3:13-CV-96 (M.D. Tenn. Apr.
10, 2013); and Hamby v. Thomas, No. 3:13-cv-0127
(M.D. Tenn. Feb.19, 2013)).
the Court finds that Plaintiff has abused his in forma
pauperis privileges. Therefore, Plaintiff cannot file
the instant suit, or any future suit, as a pauper unless he
can demonstrate that he is in imminent danger of serious
physical harm. 28 U.S.C. § 1915.
imminent danger exception, as explained in Vandiver v.
Prison Health Services, Inc., 727 F.3d 580 (6th Cir.
2013), “is essentially a pleading requirement subject
to the ordinary principles of notice pleading.”
Id. at 585 (quoting Vandiver v. Vasbinder,
416 Fed.Appx. 560, 562 (6th Cir. 2011)). The exception
applies where the pleading contains “a plausible
allegation that the prisoner faced ‘imminent danger of
serious physical injury' at the time of filing.”
Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir.
2007). Plausibility in this context means that a court
informed by its “‘judicial experience and common
sense,' could ‘draw the reasonable
inference'” that a plaintiff faced an existing
danger when he filed the pleading. Taylor v. First Med.
Mgmt., 508 Fed.Appx. 488, 492 (6th Cir. 2012)).
Plaintiff alleges that Defendants' have placed him in a
mental health unit with loud inmates who “make noise
all night and day, ” thereby subjecting him
“audio (sound) torture” [Doc. 1 p. 1-2]. Such an
allegation fails to state a claim for an Eighth Amendment
violation, much less demonstrate that Plaintiff is in
imminent danger of serious physical harm. See, e.g., Ivey
v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (declining
to find an Eighth Amendment violation absent conduct that
involves the “unnecessary and wanton infliction of
pain” and noting that “[n]ot every unpleasant
experience a prisoner might endure while incarcerated
constitutes cruel and unusual punishment within the meaning
of the Eighth Amendment”) (citations omitted).
Therefore, Plaintiff may not proceed as a pauper in these
reasons set forth above, Plaintiff's motion to proceed
in forma pauperis  is DENIED
pursuant to § 1915(g), and the instant action is
DISMISSED without prejudice to
Plaintiff's ability to pay the filing fee in full and
thereby reinstate this case. See In re Alea, 286
F.3d 378, 381 (6th Cir. 2002) (noting that prisoner's
obligation to pay filing fee arises when ...