United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court upon consideration of state inmate
Marquise Harris' complaint, submitted pursuant to 42
U.S.C. § 1983 [Doc. 2], and his application seeking to
proceed in forma pauperis in this action [Doc. 1].
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 nature of the § 1983 lawsuits Plaintiff has filed in
federal court, he has previously been held subject to the
“three-strike” rule in this Court. See
Doc. 4 in Harris v. Fenner, No. 2:17-CV-67 (E.D.
Tenn. Oct. 31, 2017) (noting Plaintiff's previous
dismissals under § 1915(g) in Harris v. TDOC
Comm'r et al., No. 3:16-CV-594 (E.D. Tenn. Sept. 20,
2017); Harris v. TDOC Comm'r et al., No.
3:16-CV-600 (E.D. Tenn. Jan. 18, 2017); and Harris v.
TDOC Comm'r et al., No. 3:16- CV-615 (E.D. Tenn.
Nov. 1, 2016)).
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(g).
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)).
alleges that on December 12, 2018, while housed at the Morgan
County Correctional Complex (“MCCX”), staff were
conducting his monthly administrative segregation review
[Doc. 2 at 4]. Plaintiff states that he was advised that he
would likely be recommended to complete a newly-created
step-down program, which would require him (and others in the
program) to be handcuffed and chained to a table “like
object[s]” and in violation of Tennessee Department of
Correction (“TDOC”) policy [Id.].
Plaintiff spoke with some of the other inmates in the program
and learned that their arms and backs were being stretched by
the restraints, causing them “wanton and
unnecessary” pain and feared that he would be subjected
to the same treatment [Id.]. Plaintiff filed a
grievance, seeking copies of TDOC policies regarding the
program and advising TDOC personnel about the violation of
the group members' civil rights [Id. at 5].
Plaintiff complains that he was denied a copy of the
program's policies and rules because he is not a member
of the group [Id.]. According to Plaintiff, when he
tried to appeal the denial of his grievance, the grievance
advocate representative advised Plaintiff that the grievance
chairperson would not process his grievance and would direct
staff “to come in his cell and beat his ass” if
he kept pursing the issue [Id. at 5]. Plaintiff
alleges that the threat of serious physical injury to him is
imminent, and that this Court's intervention is necessary
to protect his civil rights, along with the civil rights of
the other inmates in the step-down program [Id.].
Court finds that Plaintiff's allegation that he is being
verbally threatened is insufficient to sustain a civil rights
claim under § 1983, much less establish that he is in
imminent danger of serious harm. See, e.g., Ivey v.
Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987). Moreover,
Plaintiff is not in the step-down group of which he complains
and, therefore, has no standing to challenge the conditions
under which the group operates. Newsom v. Norris,
888 F.2d 371, 381 (6th Cir. 1989) (holding that a “a
prisoner who initiates a civil action challenging certain
conditions at a prison facility in his individual capacity is
limited to asserting alleged violations of his own
constitutional rights and ... lacks standing to assert the
constitutional rights of other prisoners”).
Accordingly, Plaintiff has failed to demonstrate that he is
in imminent danger of serious physical injury, and he may not
proceed as a pauper in these proceedings.
reasons set forth above, Plaintiff's motion to proceed
in forma pauperis [Doc. 1] 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