United States District Court, E.D. Tennessee
WILLIAM D. HAMBY, Plaintiff,
TONY PARKER, KEN HUTCHISON, KEVIN PEDDICORD, and AMANDA SIMMS, Defendants.
A. Varlan 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 allowed in the
mental health unit where Plaintiff is housed has tampered
with his food and “staff” has allowed this [Doc.
1]. Plaintiff has also filed a motion for leave to proceed
in forma pauperis [Doc. 4]. For the reasons set
forth below, Plaintiff's motion for leave to proceed
in forma pauperis [Id.] will be
DENIED and this action will be
DISMISSED without prejudice to Plaintiff
prepaying the filing fee.
seeks leave to proceed in forma pauperis in this
case [Id.]. Pursuant to § 1915(g) of the Prison
Litigation Reform Act of 1996 (“PLRA”), a
prisoner who has filed three or more suits in federal court
that have been dismissed as frivolous or malicious or for
failure to state a claim upon which relief may be granted may
not proceed in forma pauperis. 28 U.S.C. §
1915(g). There is, however, an exception to this
three-strikes rule for prisoners facing “imminent
danger of serious physical injury.” Id.
prior to filing his complaint in this case, Plaintiff had
filed more than three civil rights actions while he was
incarcerated that were dismissed for failure to state a
claim. See Hamby v. Rhude, No. 3:19-CV-97 [Doc. 6 p.
1-2] (E.D. Tenn. Apr. 15, 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), which cited four prior cases in Middle
District that were dismissed for failure to state a
claim-specifically: Hamby v. Lingle, No. 3:12-CV-942
(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)). Accordingly, Plaintiff may not proceed in
forma pauperis under the three-strikes rule and may only
so proceed if he satisfies the elements of the
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); see also Rittner v. Kinder, 290 Fed.Appx.
796, 797 (6th Cir. 2008).
only allegations in the complaint that the Court can
plausibly infer to assert that Plaintiff was in imminent
danger of serious physical injury when he filed his complaint
are his allegations that he is housed in a “sheltered
living unit” that only mental health inmates are
allowed to enter but that Defendants have hired a
non-mental-health-inmate to serve food in that unit who puts
feces and detergent in the food and “staff”
allows this [Doc. 1 p. 1-2]. But these allegations are
conclusory and insufficient to establish that Plaintiff is
entitled to proceed under the imminent-danger exception.
Specifically, Plaintiff does not set forth any facts to
support his assertions that this inmate tampers with his food
or that “staff” allows this, such as how he
discovered the alleged food tampering, how he knows that
“staff” allows the tampering, or which staff
members have allowed it.
Plaintiff's allegations regarding food tampering and
“staff” allowing it are insufficient to allow
Plaintiff to proceed under the imminent-danger
exception.Rittner, 290 Fed.Appx. at 798
(holding that “district courts may deny a prisoner
leave to proceed pursuant to § 1915(g) when the
prisoner's claims of imminent danger are conclusory . . .
.”) (citations omitted); Taylor v. First Med.
Mgmt., 508 Fed.Appx. 488, 492 (6th Cir. 2012) (holding
that “[a]llegations that are conclusory, ridiculous, or
clearly baseless are also insufficient for purposes of the
imminent-danger exception”); Ashcroft v.
Iqbal, 556 U.S. 662, 678, 681 (2009) (holding that
accusation[s]” and formulaic and conclusory recitations
of the elements of a claim are insufficient to state a
plausible claim for relief).
(1) Plaintiff's motion for leave to proceed in forma
pauperis [Doc. 4] will be DENIED;
(2) Plaintiff's complaint will be
DISMISSED without prejudice to Plaintiff
prepaying the filing fee pursuant to the three-strike rule of
28 U.S.C. § 1915(g); and
(3) The Court CERTIFIES that any appeal from
this action would not be taken in good faith and would ...