United States District Court, E.D. Tennessee, Knoxville
WILLIAM D. HAMBY, Plaintiff,
TONY PARKER, CORIZON CORPORATION, DR. OLROID, AMANDA HYNES-SIMMS, CORPORAL NICHOLS, KEN HUTCHINSON, and KEVIN PEDDICORD, Defendants.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
a prisoner in the custody of the Tennessee Department of
Correction, has filed a pro se complaint for violations of
his civil rights pursuant to 28 U.S.C. § 1983 alleging
that an inmate who is not supposed to be in the mental health
unit where Plaintiff is housed has threatened him and that
certain Defendants hired this inmate to commit harm on
Plaintiff and the other inmates [Doc. 1] and a motion for
leave to proceed in forma pauperis [Doc. 2]. The
United States District Court for the Middle District of
Tennessee transferred this action to this Court after
granting Plaintiff leave to proceed in forma
pauperis [Doc. 10]. However, in doing so, the Middle
District did not address the fact that Plaintiff had filed
more than three civil rights actions while he was
incarcerated that were dismissed for failure to state a claim
before filing this lawsuit [Id.].
for the reasons set forth below, this Court will
REVOKE the Middle District's grant of
permission for Plaintiff to proceed in forma
pauperis, DENY Plaintiff's motion
for leave to proceed in forma pauperis [Doc. 2], and
DISMISS this action without prejudice to
Plaintiff prepaying the filing fee.
1915(g) of the Prison Litigation Reform Act of 1996
(“PLRA”) provides as follows:
In no event shall a prisoner bring a civil action [in
forma pauperis] . . . if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any
facility, brought an action . . . 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).
to filing his complaint in this case, Plaintiff had filed
more than three actions while he was incarcerated that were
dismissed for failure to state a claim. See, e.g., Hamby
v. Rhude, No. 3:19-CV-97-RLJ-HBG [Doc. 6] (E.D. Tenn.
Apr. 5, 2019) (noting Plaintiff's previous dismissals
under § 1915(g) in Hamby v. Rhude, No.
3:19-CV-212, 2019 WL 149172, at *1 (M.D. Tenn. Apr. 3, 2019)
(citing four prior cases in Middle District that were
dismissed for failure to state a claim-specifically:
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-96 (M.D. Tenn. Apr. 10, 2013); and Hamby v.
Thomas, No. 3:13-CV-0127 (M.D. Tenn. Feb.19, 2013)).
Plaintiff may not proceed in forma pauperis in this
action unless his complaint adequately alleges that he was in
“imminent danger of serious physical injury” at
the time that he filed his complaint. 28 U.S.C. §
1915(g); Rittner v. Kinder, 290 Fed.Appx. 796, 797
(6th Cir. 2008).
allegations in the complaint that the Court can plausibly
infer to assert that Plaintiff was in imminent danger of
serious physical injury are his allegations that he has
direct contact with an inmate who has both disciplinary
write-ups and a state case for assault on jail staff in which
Plaintiff is a witness and this inmate has threatened
Plaintiff, including threatening to poison Plaintiff's
food [Doc. 1 p. 2-3]. Plaintiff specifically alleges that
this inmate threatened him at the direction of the
“staff” and that “Nichols (cpl./corporal)
was told by Dr. Olroid and (unit manager) Peddicord, and
Amanda Hynes-Simms, and (Warden) Ken Hutchinson to hire [this
inmate], as a worker, to commit harm upon us (and my food
trays, etc.) as he was ordered to. (*Food samples sent to
outside (Quantico) agency for analysis)” [Doc. 1 p.
2-3]. Plaintiff also alleges that Defendants'
“history of aiding [and] abetting gang members in the
commission of crimes is well[-]proven” and that
Defendants are angry at Plaintiff because of his lawsuits,
“official oppression charges, ” and “past
info on a gang” [Id. at 4].
Plaintiff's allegations regarding imminent danger are
“irrational and wholly incredible.” Accordingly, they
are insufficient to allow Plaintiff to proceed under the
imminent danger exception to § 1915(g).
Rittner, 290 Fed.Appx. at 798 (affirming district
court's holding that prisoner could not proceed in
forma pauperis under the imminent danger exception to
§ 1915(g) where his allegations of imminent danger were
“irrational or wholly incredible”); Taylor v.
First Med. Mgmt., 508 Fed.Appx. 488, at 492 (6th Cir.
2012) (providing that “[a]llegations that are
conclusory, ridiculous, or clearly baseless are also
insufficient for purposes of the imminent-danger
(1) The Court will REVOKE the Middle
District's grant of permission for Plaintiff to proceed