United States District Court, W.D. Tennessee, Eastern Division
DIRECTING CLERK TO DOCKET MOTION FROM CASE #19-1114, DENYING
MOTION 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 PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE
31, 2019, the Court received and docketed a pro se
complaint purportedly filed by Corey Bennett and 82 other
current or former prisoners. (ECF No. 1.) Bennett, who is a
three-strike filer under 28 U.S.C. § 1915(g), is
incarcerated at the Riverbend Maximum Security Institution
(RMSI) in Nashville, Tennessee. (Id. at PageID
The complaint names as Defendants the Hardeman County
Correctional Facility and Tennessee Department of Correction
(TDOC) Commissioner Tony Parker.
has not filed the required financial documentation to proceed
in forma pauperis in this matter. He did, however,
file a motion to proceed in forma pauperis in
another case that was filed in this Court only four days
after the present complaint. See Bennett, et al. v.
Parker, No. 1:19-cv-01114-JDT-cgc, ECF No. 11 (W.D.
Tenn. dismissed July 30, 2019). Therefore, the Clerk is
DIRECTED to docket in this case the motion to proceed in
forma pauperis and attached documents that Bennett filed
in case number 19-1114 at Docket Entry 11.
8, 2019, the Clerk received and docketed two contradictory
motions, both of which appeared to be from Bennett: a motion
to voluntarily dismiss this action, (ECF No. 4), and a motion
asking the Court to order the Clerk to list all 82 purported
Plaintiffs on the docket and send each a copy of the docket
sheet and an in forma pauperis affidavit form, (ECF
No. 3). The Court denied the motion to add the other inmates
to the docket and ordered Bennett to advise the Court by July
31, 2019, whether he intended to proceed in this matter. (ECF
No. 5 at PageID 33.) The Court warned Bennett that
“[f]ailure to respond to this order within the time
specified will result in the dismissal of the case without
further notice.” (Id.)
has not responded to the Court's order for him to advise
whether he intends to proceed with this matter. Instead, he
filed a motion asking for a copy of the complaint to be sent
to each of the other 82 inmates listed in the complaint and
for an order requiring them to advise whether they signed the
complaint and agreed to partcipate in this case, (ECF No. 6);
the Court denied that motion, (ECF No. 8). After requesting
and being sent a copy of the docket sheet, (ECF No. 9 &
10), Bennett filed a second motion for an order requiring the
other inmates to advise whether they signed the complaint and
intend to participate. (ECF No. 11.) However, because Bennett
failed to respond to the Court's order within the time
specified, this matter is subject to dismissal for that
reason alone. Therefore, the motions for voluntary dismissal
and for an order directed to the other 82 inmates are DENIED
as moot. (ECF Nos. 4 & 11.)
complaint also is subject to dismissal under 28 U.S.C. §
1915(g). Under the Prison Litigation Reform Act (PLRA),
§§ 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),
partially overruled on other grounds by
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir.
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).
allegations in Bennett's complaint in this case are
identical to those in case number 19-1114. He alleges that
Defendant Commissioner Parker has refused to take any action
against prison officials who have put “the
plaintiff's [sic] life in danger by disclosing there
[sic] involvement of homosexual activity with Plaintiff Corey
Bennett.” (ECF No. 1 at PageID 15.) Bennett further
alleges that all of the other listed inmates “are
confirmed gang members except Corey Bennett and have been
involved with homosexual activity and acts with Plaintiff
Corey Bennett.” (Id.) He alleges that prison
officials have “disclosed this to gang leaders causing
the Plaintiff's [sic] lives to be put in severe
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 the
“Plaintiff[s'] lives” have been put in danger
because unnamed prison officials told unnamed gang leaders
that the listed inmates have been sexually involved with
Bennett. Bennett does not allege facts showing that he
personally faces imminent danger of serious physical injury.
His vague and speculative allegations of danger are
insufficient to satisfy § 1915(g). See Clark v.
Morgan, No. 2:15-CV-10994, 2015 WL 1541890, at *2 (E.D.
Mich. Apr. 7, 2015) (citing Thompson v. Sampson, No.
1:10-CV-231, 2010 WL 1027897, at *3 (W.D. Mich. Mar. 18,
2010) (“Conclusory or vague allegations of some
potential danger are insufficient to satisfy the exception to
the three strikes rule.”); cf. Rittner v.
Kinder, 290 Fed.Appx. 796, 797 (6th Cir. 2008)
(explaining that, to meet the requirement of § 1915(g),
“the threat or prison condition ‘must be real and
proximate' and the danger of serious physical injury must
exist at the time the complaint is filed”).
complaint 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, ...