United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
WILLIAM L. CAMPBELL, JR UNITED STATES DISTRICT JUDGE
William Hamby, Jr., an inmate at the Morgan County
Correctional Complex (MCCX) in Wartburg, Tennessee, had filed
a pro se complaint under 42 U.S.C. § 1983.
(Doc. No. 1.) Unfortunately, Plaintiff has not paid the
required filing fee, nor has he submitted an application to
proceed in forma pauperis (IFP). One or the other is
required in order for the Court to process the complaint.
in no event is a prisoner allowed to file a civil action IFP
in this court if he has, on three or more prior occasions,
brought an action in a court of the United States that was
dismissed on grounds of frivolity, maliciousness, or failure
to state a claim upon which relief may be granted, unless the
prisoner is in imminent danger of serious physical injury. 28
U.S.C. § 1915(g). Plaintiff has previously filed at
least four actions in this Court which were dismissed for
failure to state a claim. See 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-0096 (M.D. Tenn. Apr.
10, 2013); Hamby v. Thomas, No. 3:13-cv-0127 (M.D.
Tenn. Feb. 19, 2013). In light of these prior dismissals,
Plaintiff is a “three-striker” who may only
proceed as a pauper in this action if he is in
“imminent danger of serious physical injury.” 28
U.S.C. § 1915(g).
within the statutory exception to the
“three-strikes” rule, the danger Plaintiff is
facing must be a “real and proximate” threat of
serious physical injury that existed at the time the
complaint was filed. Rittner v. Kinder, 290
Fed.Appx. 796, 797 (6th Cir. 2008) (citing, e.g.,
Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.
2003)). Under this standard, a plaintiff must “allege
facts from which a court, informed by its judicial experience
and common sense, could draw the reasonable inference that
[he] was under an existing danger” when he filed the
complaint. Vandiver v. Prison Health Servs., Inc.,
727 F.3d 580, 585 (6th Cir. 2013) (internal quotation marks
and citation omitted).
alleges that on July 5, 2019 “and other dates, ”
he was not allowed to get a haircut, despite the prison
policy requiring that inmates be offered weekly haircuts.
(Doc. No. 1 at 1-2.) He alleges that he has been denied the
opportunity to get his hair cut out of retaliation for his
pursuit of various prior lawsuits, as well as for his refusal
to join a prison gang. (Id. at 2-3.) Finally, he
alleges that an HIV-positive inmate is allowed to serve food,
and that on one occasion he had severe chest pain and his
request for emergency medical attention was ignored.
(Id. at 3.)
under the most liberal construction of Plaintiff's
allegations, the Court cannot find that he is under any real
and proximate threat of serious physical injury as a
consequence of being denied a weekly haircut, being served
food by an HIV-positive inmate, or having been denied
emergency room treatment on one prior occasion when he was
suffering from chest pain. See Vandiver, 727 F.3d at
585 (finding that allegations of imminent threat based on
past dangers, or allegations that are “conclusory or
ridiculous, or are clearly baseless, ” do not justify
exception from Section 1915(g)). The Court therefore finds
that Section 1915(g) precludes the granting of pauper status
in this case. The Sixth Circuit Court of Appeals has made the
following observation with respect to prisoners who fall
within the scope of § 1915(g):
A prisoner who has filed prior civil actions should be aware
of the disposition of those actions and the possible
application of § 1915(g) to any new actions he wishes to
pursue. By choosing to file a new action, he invokes the
jurisdiction of the federal court and avails himself of the
process afforded by that court. Even if the end result is an
order of summary dismissal under § 1915(g), the action
will require a considerable amount of time and effort on the
part of the district court and the court staff. The
requirement that the full fees be paid for these
actions-whatever their merit or disposition-will provide a
prisoner with the incentive to consider carefully whether or
not to submit a new action to the district court. Not to
require the payment of the full fee would permit a prisoner
subject to the three-strikes rule to continue to file
frivolous civil complaints-thus taking much valuable time
away from other non-frivolous litigation-without any
consequence beyond their mere dismissal under § 1915(g).
The intent of the PLRA was to deter such litigation and it
would be anomalous for a provision of that Act to provide a
means for the repeated filing of frivolous actions without
financial consequences to the prisoner litigant.
In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
within 28 days of the entry of this Order,
Plaintiff SHALL remit the full filing fee of
four hundred dollars ($400.00) to the Clerk of Court.
Plaintiff is cautioned that, should he fail to comply with
this Order within the time specified, the full amount of the
filing fee will be assessed against him and collected ...