United States District Court, W.D. Tennessee, Eastern Division
COREY A. BENNETT, ET AL., Plaintiffs,
TONY PARKER, Defendant.
DISMISSING PLAINTIFFS TAYLOR AND BYRD, DENYING MOTION TO
PROCEED IN FORMA PAUPERIS, DISMISSING BENNETT'S 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 PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE.
4, 2019, this Court received and docketed a pro se
complaint purportedly filed by four inmates who were
incarcerated at the Hardeman County Correctional Facility:
Corey Bennett, Anthony Draine, Deangelo Taylor and Zebulon
Byrd. (ECF No. 1.) Plaintiff Bennett, who is a three-strike
filer under 28 U.S.C. § 1915(g), is now incarcerated at
the Riverbend Maximum Security Institution (RMSI) in
Nashville, Tennessee. (ECF No. 9.) The complaint names as
Defendant Tennessee Department of Correction (TDOC)
Commissioner Tony Parker. Because no Plaintiff submitted the
$400 civil filing fee or a proper application to proceed
in forma pauperis, this Court ordered Bennett,
Taylor, and Byrd each to submit, by July 18, 2019, the
required financial documentation. (ECF No. 5 at PageID 27.)
Draine, however, notified the Court that he was unaware he
had been named as a Plaintiff in any complaint filed in this
Court. (ECF No. 4.) The Court therefore ordered Draine to
advise the Court whether he intended to participate in this
matter. (ECF No. 5 at PageID 28.) On July 1, 2019, Draine
responded to the Court's order and averred that he did
not sign the complaint and had no desire or intent to
participate in this matter. (ECF No. 6.) On July 8, 2019, the
Court entered an order dismissing Draine from this action.
(ECF No. 10.)
12, 2019, Plaintiff Bennett filed a motion to proceed in
forma pauperis and a certified copy of his trust account
statement, as required in the Court's prior order. (ECF
No. 11.) Plaintiffs Taylor and Byrd, however, have not
submitted the required documentation, and the time within
which to do so has expired. Accordingly, Plaintiffs Taylor
and Byrd are hereby DISMISSED as parties to this case in
accordance with the Court's June 18, 2019, order. (ECF
No. 5 at PageID 29.) Plaintiff Bennett is the sole remaining
Plaintiff in this matter.
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) (“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 three previous civil actions while he was
incarcerated 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).
complaint alleges that Commissioner Parker has refused to
take any action against prison officials who have put
“Plaintiff's life in Danger by disclosing to High
Ranking Members of the Vice Lord Gang” that the three
former Plaintiffs had been involved in sexual activity with
Bennett. (ECF No. 1 at PageID 5.) The complaint alleges that
prison officials had gang members “put a hit out
on” Taylor and Draine. (Id.) It further
alleges that Bennett, Draine, and Taylor were “caught
by Prison Officials” engaging in sexual activity and
that prison officials “disclosed this” to gang
members, “causing them to be Physically Beaten and put
on Protective Custody.” (Id.) The complaint
alleges that Byrd “has been engaged to Plaintiff Corey
Bennett [for] the past 5 years” and that prison
officials disclosed this to gang members, putting Byrd's
life in danger. (Id. at PageID 6.)
complaint fails to sufficiently allege that Bennett was in
imminent danger of any serious physical injury when the
complaint was filed. The complaint alleges that former
Plaintiffs Taylor, Draine, and Byrd faced potential future
physical injury either because there was a “hit
out” on them or because gang members learned of
Byrd's alleged engagement to Bennett. However, the only
allegation of injury to Bennett is that he was attacked in
the past and put in protective custody. That allegation is
insufficient to satisfy § 1915(g). See Percival v.
Gerth, 443 Fed.Appx. 944, 946 (6th Cir. 2011)
(“Assertions of past danger will not satisfy 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 Bennett first tenders the civil filing fee.
Accordingly, Bennett's motion to proceed in forma
pauperis is DENIED pursuant to § 1915(g). This
action is DISMISSED without prejudice. Bennett may, within
twenty-eight (28) days after the entry of judgment, re-open
the case by filing a motion to re-open accompanied by full
payment of the $400 civil filing fee.
Court hereby CERTIFIES, pursuant to 28 U.S.C. §
1915(a)(3) and Federal Rule of Appellate Procedure 24(a),
that any appeal by Bennett or the other Plaintiffs in this
case would not be taken ...