United States District Court, W.D. Tennessee, Eastern Division
ORDER 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
August 26, 2019, the Court entered an order reinstating
Plaintiff James Lee McClain as a party in this matter,
directing him to comply with 28 U.S.C. §§
1915(a)-(b), and severing Plaintiff Larry D. Horton from this
case. (ECF No. 30.) McClain is now the sole remaining
Plaintiff in this matter. On September 9, 2019, McClain filed
an application to proceed in forma pauperis but
again alleges that he remains unable to obtain a copy of his
prison trust account statement. (ECF No. 35.) Because McClain
submitted the affidavit, the Court will proceed and screen
the complaint. Horton sues the Madison County Sheriff's
Department and the State of Tennessee.
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) (“[w]hen 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 more than three previous civil actions in federal
court 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, McClain alleges that the Madison County
Sheriff's Department and the State of Tennessee, and
their “employees/representatives, ” subjected him
(and all original Plaintiffs in this matter) to deplorable
conditions, including mold and mildew on the walls, floors,
and ceilings within the Madison County Jail (Jail). (ECF No.
1 at PageID 2.) McClain further alleges the cells and pods at
the Jail are overpopulated, forcing some inmates to sleep on
the floor without a mattress or blanket. (Id.) He
alleges there are insufficient tables at which to sit during
meals, the paint along “the feed trap” is
chipped, and that the Jail forces inmates to live in overall
“animal conditions.” (Id.) McC la i n
alleges that the ceilings leak and have sprouted mushrooms
and that the inmates are allowed insufficient shower time.
(Id.) He alleges the inmates are confined to their
cells “24 hours a day without recreation in an insect
infested poorly ventilated area” and each is allowed
only eight square feet of space. (Id. at PageID 5.)
also alleges he has a history of blood clots and has an
inferior vena cava (IVC) filter inserted to prevent a blood
clot from travelling to his lungs. (Id. at PageID
5.) He alleges that when he arrived at the Jail in November
2018, he was without his medication for three weeks, which he
alleges should be “considered attempted murder.”
(Id.) He further alleges his filter is improperly
inserted and may not be able to be removed. (Id. at
PageID 6.) He describes his health as “critical and
very serious.” (Id.)
complaint seeks to hold the Madison County Sheriff's
Department and the State of Tennessee liable based on a
“[causal] connection between the officials conduct and
are liable and or responsible for subjecting all plaintiffs
and or caused us to be subjected to cruel and unusual
punishments.” (Id. at PageID 7.) The complaint
in passing alleges that the State of Tennessee “imposes
a hardship on the plaintiffs limited to no access to the
courts which is adequate[, ] effective and meaningful.”
(Id. at PageID 8.) McClain further alleges the State
“does not comply with due process of law and or
McClain's allegations sufficiently allege that he was in
imminent danger of serious physical injury at the time he
filed his complaint. McClain asserts that he has serious
health problems but does not allege he is in danger of
imminent physical harm because of the conditions at the Jail.
See Lapine v. Waino, No. 17-1636, 2018 WL 6264565,
at *2 (6th Cir. Oct. 11, 2018) (affirming dismissal of
prisoner's complaint under § 1915(g) because
prisoner “failed to tie his legal claims to his
allegations of spine disease and resulting pain”). His
allegation that he was denied medication in the past 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.”). McClain's
remaining allegations are stated generally, and he does not
allege that any of the conditions at the Jail put him
personally in danger of real, immediate physical harm.
See 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”); 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.”) The complaint therefore does not come
within the exception to 28 U.S.C. § 1915(g), and the
Court cannot address its merits unless McClain first tenders
the civil filing fee.
this action is DISMISSED without prejudice. McClain 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. The Court hereby
CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3) and
Federal Rule of Appellate Procedure 24(a), that an appeal by
McClain in this case would not be taken in good faith. Leave
to appeal in forma pauperis is DENIED.
Clerk is directed to ...