United States District Court, E.D. Tennessee, Knoxville
C. Poplin, Magistrate Judge.
MEMORANDUM AND ORDER
R. MCDONOUGH, UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff’s complaint, submitted pursuant
to 42 U.S.C. § 1983 (Doc. 2), his application seeking to
proceed in forma pauperis in this action (Doc. 1),
and his motion requesting the production of documents (Doc.
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 on the grounds that it is
frivolous, malicious, or fails 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).
the nature of the § 1983 lawsuits Plaintiff has
previously filed in federal court, he has already been held
subject to the “three-strike” rule in this Court.
See Harris v. TDOC Commissioner, No. 3:19-cv-28
(E.D. Tenn. July 9, 2019) (applying three-strikes bar);
Harris v. Fenner, No. 2:17-cv-67 (E.D. Tenn. Oct.
31, 2017) (applying three-strikes bar); Harris v.
TDOC Comm’r et al., No. 3:16-cv-594 (E.D.
Tenn. Sept. 20, 2017) (previous dismissal under §
1915(g)); Harris v. TDOC Comm’r et al., No.
3:16-cv-600 (E.D. Tenn. Jan. 18, 2017) (previous dismissal
under § 1915(g)); and Harris v. TDOC Comm’r et
al., No. 3:16-cv-615 (E.D. Tenn. Nov. 1, 2016) (previous
dismissal under § 1915(g)).
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., “is essentially a
pleading requirement subject to the ordinary principles of
notice pleading.” 727 F.3d 580, 585 (6th Cir. 2013)
(quoting Vandiver v. Vasbinder, 416 Fed.Appx. 560,
562 (6th Cir. 2011)). The exception applies to a pleading
containing “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 he was assaulted by gang members on November 14,
2017, at the Turney Center Industrial Complex and that, since
his move to the Morgan County Correctional Complex
(“MCCX”) in May 2018, members of the same gang
are “threatening to do it again.” (Doc. 2, at
7–8.) He claims that this danger will increase when he
completes Phase I of the Security Management Unit and is
moved to another unit and that his attempts to discuss his
concerns with MCCX staff have been ignored. (Id. at
Court finds Plaintiff’s allegations-that he has felt
threatened since his move to MCCX in 2018-too conclusory to
support a determination that the imminent-danger exception of
§ 1915(g) applies. See, e.g., Rittner v.
Kinder, 290 Fed.Appx. 796, 797–98 (6th Cir. 2008)
(noting that, to satisfy the imminent-danger requirement, the
threat of serious physical injury “must be real and
proximate” at the time the complaint is filed).
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.
Plaintiff concedes in this action that he has a pending
§ 1983 suit in this Court in which he alleges that he is
in danger of serious harm at the hands of other inmates while
housed at MCCX. (Doc. 3, at 5); see Harris v.
Parker, No. 1:19-cv-106 (E.D. Tenn.) (filed Apr. 17,
2019). While the actions are not identical, they do arise out
of the same facts and employ the same theories. Therefore,
the Court alternatively dismisses this action because it is
duplicative of another pending federal action. See Colo.
River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976) (noting “the general principle . .
. to avoid duplicative litigation”).
reasons set forth above, Plaintiff’s motion to proceed
in forma pauperis (Doc. 1) is
DENIED pursuant to 28 U.S.C. § 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 complaint delivered to district court clerk).