Maisano v. Corizon Health Inc. et al

Filing 3

ORDER: The application to proceed in forma pauperis 2 is therefore GRANTED. In accordance with the PLRA, the plaintiff is hereby assessed the full $350 filing fee. The Clerk of Court is DIRECTED send a copy of this order to the Warden of t he Arizona State Prison. Accordingly, IT IS ORDERED that this case be transferred to the United States District Court for the District of Arizona, Tucson Division, pursuant to 28 U.S.C. § 1406(a). This Court has not conducted an initial revie w of the plaintiff's complaint under 28 U.S.C. § 1915(e)(2) or § 1915A. It is so ORDERED. Signed by District Judge Kevin H. Sharp on 9/10/13. (xc:Pro se party by regular and certified mail; Warden of Arizona State Prison)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw) [Transferred from tnmd on 9/11/2013.]

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DALE MAISANO,
Plaintiff,
v.
CORIZON HEALTH INC., et al.,
Defendants.

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Case No. 3:13-cv-0856
Judge Sharp

ORDER
Before the Court are yet another a pro se complaint (ECF No. 1) and an application to proceed in
forma pauperis (ECF No. 2) filed by plaintiff Dale Maisano.
A.

1992 Restraining Order
The plaintiff is an excessively litigious prisoner at the Arizona State Prison in Tucson. Because of

the plaintiff’s numerous frivolous filings, on August 11, 1992, Senior United States District Judge Stephen
M. McNamee entered an Order and Restraining Order enjoining Maisano from filing any civil action in the
United States District Court for the District of Arizona, or any other federal court, without first obtaining
leave of the court. See Maisano v. Lewis, CIV 92-1026-PHX-SMM (MS) (D. Ariz. Aug. 11, 1992)
(“Restraining Order”).
Pursuant to the Restraining Order, to obtain leave to file, the plaintiff must file an “Application
Pursuant to Court Order Seeking Leave to File” accompanied by an affidavit certifying: (1) “that the claim
or claims he wishes to present are new and have not been raised and disposed of on the merits by any
federal court”; and (2) “that to the best of his knowledge the claim or claims are not frivolous or taken in
bad faith.” Restraining Order at 5. In addition, the plaintiff “must attach to future complaints a list of all
cases previously filed involving similar or related causes of action.” Id. Any application seeking leave to
file must be accompanied by a copy of the Restraining Order, and “[f]ailure to comply strictly with [its]
terms . . . will be sufficient ground to deny leave to file.” Id.
The plaintiff has partially complied with this order by including with his filings a copy of the
Restraining Order and an application seeking leave of court to file, in which he attests that the claims
presented are new, and that they are not frivolous or taken in bad faith. (Complaint, Exhibit T, ECF No. 1-

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21.) He also attached a list under the heading “The Court Requests a Lit of Prior Cases.” (ECF No. 1-22,
at 10; see also id. at 8–9.) This list appears to include the docket numbers of some of the cases the
plaintiff has filed since 2011. The Court finds that the plaintiff substantially complied with the order and will
provisionally permit the present filing.
B.

Application to Proceed In Forma Pauperis
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil

action may be permitted to file suit without prepaying the civil filing fee required by 28 U.S.C. § 1914(a).
Because the plaintiff has submitted an in forma pauperis affidavit and a certified trust fund account
statement, as required by 28 U.S.C. § 1915(a)(2), and because it appears from his submissions that the
plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance, the application
ordinarily would be granted without further discussion.
In this case, however, as suggested above, the plaintiff has filed dozens of cases that have
previously been dismissed for failure to state a claim or for frivolity. The effect of the PLRA was to
implement “constraints designed to prevent sportive filings in federal court.” Skinner v. Switzer, 131 S. Ct.
1289, 1299 (2011). The PLRA provides that a prisoner who would otherwise be qualified to proceed in
forma pauperis is not eligible to do so if he 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
[was] frivolous, malicious, or fail[ed] 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, a prisoner-plaintiff who meets this standard—that is, who has “three
strikes”—while not precluded from filing a civil lawsuit in federal court, may not do so at taxpayer expense
unless he is under “imminent danger of serious physical injury.” Id. Section 1915(g) does not provide an
independent basis for dismissing a civil action brought by an inmate; rather, it authorizes the denial or
revocation of a prisoner’s pauper status. Sweatt v. Campbell, 215 F.3d 1327 (Table), 2000 WL 658070, at
*1 (6th Cir. May 9, 2000).
The plaintiff here seeks to avoid the application of § 1915(g) by alleging that he is under imminent
danger of serious physical injury based on prison officials’ failure to treat his most recent onset of Valley
Fever, also known as coccidioidomycosis, which the plaintiff alleges is a chronic, life-threatening fungal

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infection. The plaintiff’s complaint is supplemented by documentation indicating he has been diagnosed
and treated for coccidioidomycosis in the past, and by an article by John E. Dannenberg titled “Valley
Fever Declared a Public Health Emergency at Two California Prisons; Court Orders Prisoner Transfers.”
(Complaint, Exhibit O, ECF No. 1-17 (noting that “Valley Fever (coccidioidomycosis) is a potentially fatal
fungal infection that causes flu-like symptoms”).)
The application to proceed in forma pauperis (ECF No. 2) is therefore GRANTED. However,
under § 1915(b), the plaintiff nonetheless remains responsible for paying the full filing fee. In accordance
with the PLRA, the plaintiff is hereby assessed the full $350 filing fee,1 to be paid as follows:
(1) The custodian of the plaintiff’s inmate trust fund account at the institution where he now
resides is DIRECTED to submit to the Clerk of Court, as an initial payment, “20 percent of the greater of –
(a) the average monthly deposits to the plaintiff’s account; or (b) the average monthly balance in the
plaintiff’s account for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. §
1915(b)(1).
(2) After the initial filing fee is fully paid, the trust fund officer must withdraw from the plaintiff’s
account and pay to the Clerk of this Court monthly payments equal to 20% of all deposits credited to the
plaintiff’s account during the preceding month, but only when the amount in the account exceeds $10.
Such payments must continue until the entire $350 filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
(3) Each time the trust account officer makes a payment to this court as required by this order, he
must print a copy of the prisoner’s account statement showing all activity in the account since the last
payment made in accordance with this order and submit it to the Clerk along with the payment. All
submissions to the court must clearly identify the plaintiff’s name and the case number as indicated on
the first page of this order, and must be mailed to: Clerk, United States District Court, Middle District of
Tennessee, 801 Broadway, Nashville, TN 37203.
If the plaintiff is transferred to a different prison or released, he is ORDERED to notify the court

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Effective May 1, 2013, the Judicial Conference of the United States established a $50
administrative fee for filing a civil action in a U.S. District Court, as a result of which the fee for filing a new
civil case increased to $400. The $50 administrative fee does not apply to cases filed by pro se prisoner
plaintiffs who have been provisionally granted permission to proceed in forma pauperis.

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immediately, in writing, of his change of address.
The Clerk of Court is DIRECTED send a copy of this order to the Warden of the Arizona State
Prison to ensure that the custodian of the plaintiff’s inmate trust account complies with that portion of 28
U.S.C. § 1915 pertaining to the payment of the filing fee. If the plaintiff is transferred from his present
place of confinement, the custodian of his inmate trust fund account MUST ensure that a copy of this
order follows the plaintiff to his new place of confinement for continued compliance with this order.
C.

Transfer of Case
Having granted the application to proceed as a pauper, the Court would ordinarily conduct an

initial review of the plaintiff’s complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. In this case, however,
an initial perusal of the complaint reveals that it was filed in the wrong venue.
The plaintiff is housed at the Arizona State Prison (“ASP”) in Tucson, Arizona. Although he
alleges that one of the defendants named in the complaint, Corizon, has its principle place of business in
Tennessee, the claims in his complaint are based upon the conditions of the plaintiff’s confinement while
he has been detained at the ASP. The defendants named in the complaint other than Corizon have no
connection whatsoever to the state of Tennessee, and this Court lacks jurisdiction over them.
Venue in the Middle District of Tennessee in this case is not appropriate under 28 U.S.C. §
1391(b)(1), which provides that venue lies in the “judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located,” because only one defendant is
alleged to reside in Tennessee. Under § 1391(b)(2), venue is appropriate in a district “in which a
substantial part of the events or omissions giving rise to the claim occurred.” In other words, venue is
appropriate only in the state of Arizona.
Accordingly, IT IS ORDERED that this case be transferred to the United States District Court for
the District of Arizona, Tucson Division, pursuant to 28 U.S.C. § 1406(a). This Court has not conducted
an initial review of the plaintiff's complaint under 28 U.S.C. § 1915(e)(2) or § 1915A.
It is so ORDERED.

Kevin H. Sharp
United States District Judge