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Wimber v. Jackson

United States District Court, M.D. Tennessee, Nashville Division

October 28, 2019

JAMES D. WIMBER and MARY J. GERVAIS, Plaintiffs,
v.
ERIC JACKSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         James D. Wimber, an inmate of the Bledsoe County Correctional Complex in Pikeville, Tennessee, and his mother, Mary J. Gervais, a resident of Dover, Tennessee, filed this pro se action under 42 U.S.C. § 1983 against Eric Jackson, Charlie Jackson, and Jackson Logging Company. (Doc. No. 1).

         I. Resolution of the Filing Fees

         A. Mary J. Gervais

         By Order entered on August 21, 2019, the Court notified Gervais that, if she wished to pursue this action, she must submit an application to proceed in forma pauperis or her portion of the civil filing fee within 28 days of the date she received the Court's Order. (Doc. No. 4). The Court advised Gervais that failure to comply with the Court's Order could result in the dismissal of her claims. (Id.) The Court further advised her that she could request an extension of time to comply with the Court's Order if she sought an extension within 28 days of date of entry of the Court's Order. (Id.)

         To date, Gervais has not responded to the Court's Order. An action is subject to dismissal for want of prosecution where the pro se litigant fails to comply with the court's orders or engages in a clear pattern of delay. Gibbons v. Asset Acceptance Corp., No. 1:05CV467, 2006 WL 3452521, at *1 (S.D. Ohio Nov. 29, 2006); see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). District courts have the inherent power to sua sponte dismiss an action for want of prosecution “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad, 370 U.S. 626, 630-31 (1962). Accordingly, as to Mary J. Gervais, this action is hereby DISMISSED for failure to comply with the Order of the Court and for want of prosecution.

         B. James D. Wimber

         Along with the complaint, Wimber submitted an application to proceed in forma pauperis. (Doc. No. 2). The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, enacted to implement “constraints designed to prevent sportive filings in federal court, ” Skinner v. Switzer, 562 U.S. 521, 535 (2011), provides the following under Section 1915(g) with respect to prisoner-plaintiffs:

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.

28 U.S.C. § 1915(g). In other words, each time a court dismisses a prisoner-plaintiff's civil action or appeals on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may granted, the prisoner-plaintiff earns a “strike” under the PLRA. And, a prisoner-plaintiff who falls within the scope of Section 1915(g) because of three or more previous “strikes” must pay the entire filing fee at the outset of the case-even if the plaintiff has inadequate financial resources to pay the full civil filing fee-unless he or she is under imminent danger of serious physical injury. Wilson v. Yaklich, 148 F.3d 596, 603-04 (6th Cir. 1998), cert. denied, 525 U.S. 1139 (1999).

         Plaintiff Wimber is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g) because he has, on at least three prior occasions, filed a civil action or an appeal that has been dismissed for failure to state a claim upon which relief could be granted. See James D. Wimber v. Charlies Jackson, et al., No. 3:18-cv-00415 (M.D. Tenn. filed 5/02/2018) (Trauger, J.) (dismissed on 9/04/2018 for failure to state a claim upon which relief can be granted); James D. Wimber v. Stewart County, Tennessee, No. 3:19-cv-00355 (M.D. Tenn. filed 4/30/2019) (Richardson, J.) (dismissed on 5/21/2019 for failure to state claims upon which relief can be granted); James David Wimber v. Stewart County Detention Center, No. 3:19-cv-00572 (M.D. Tenn. filed 7/9/2019) (Crenshaw, Chief J.) (dismissed on 7/22/2019 as barred by issue preclusion).

         To fall within the statutory exception to the “three-strikes” rule, a prisoner must allege that the threat or prison condition is “real and proximate” and that the danger of serious physical injury exists at the time the complaint is filed. See Rittner v. Kinder, 290 Fed.Appx. 796, 797-98 (6th Cir. 2008) (citation omitted). A prisoner's assertion that he faced danger in the past is insufficient to invoke the exception. Id. Therefore, pursuant to Section 1915(g) of the PLRA, Plaintiff may pursue the instant action as a pauper only if he is under imminent danger of serious physical injury. He states that he suffers from chronic obstructive pulmonary disease (“COPD”) “and it has been advanced to worsen” but does not allege that he is under imminent danger of serious physical injury. (Doc. No. 1 at 8). Plaintiff has failed to show that he falls within the exception to the PLRA's “three-strikes” rule.

         In In re Alea, 286 F.3d 378 (6th Cir. 2002), the Sixth Circuit stated the following with respect to inmates such as Plaintiff with three strikes under § 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 ...

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