Hale v. Cook et al

Filing 5

MEMORANDUM AND OPINION: Plaintiffs motion for leave to proceed in forma pauperis is DENIED [Doc. 4]. Plaintiffs case will be DISMISSED WITHOUT PREJUDICE to Plaintiffs filing a new complaint accompanied by the full filing fee. A SEPARATE ORDER WILL ENTER. Signed by District Judge Travis R McDonough on 5/2/2016. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
THOMAS D. HALE, a/k/a RHEA HALE,
a/k/a SITI DARA ROBERTSON,
Plaintiff,
v.
BILLY DOUG COOK; DERRICK D.
SCHOFIELD; JASON WOODALL;
EDWARD LEE MOORE; MICHAEL
WILLIAMS; STATE OF TENNESSEE;
RODNEY FRAZIER, a/k/a RODNEY
MAZE, a/k/a RODNEY MASE; and
TONY PARKER,
Defendants.

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No.:

1:16-CV-106-TRM-CHS

MEMORANDUM OPINION

The Court has before it a pro se state prisoner’s civil rights complaint under 42 U.S.C. §
1983 and an application to proceed in forma pauperis [Docs. 1, 4]. Pursuant to the Prison
Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104-34, §§ 801-10, 110 Stat. 1321, a
prisoner cannot bring a new civil action or appeal a judgment in a civil action in forma pauperis
if he has, three or more times in the past, while incarcerated, brought an action or appeal in
federal court that was dismissed because it was frivolous, malicious, or failed to state a claim
upon which relief may be granted. The only exception is if the prisoner is in “imminent danger
of serious physical injury.” 28 U.S.C. §1915(g).
While incarcerated, Plaintiff has had at least three prior civil rights actions dismissed as
frivolous or for failure to state a claim. See Hale v. Boyd, No. 1:94-cv-0141 (M.D. Tenn. Sept.
14, 1994) (case dismissed as frivolous); Hale v. Williams, No. 1:94-cv-0145 (M.D. Tenn. Sept.

20, 1994) (case dismissed as frivolous); Hale v. Rhea, No. 3:94-cv-0812 (M.D. Tenn. Sept. 19,
1994) (case dismissed as frivolous); Hale v. Long, No. 1:95-cv-0111 (M.D. Tenn. May 2, 1996)
(case dismissed as frivolous); Hale v. Long, No. 1:06-cv-1109 (W.D. Tenn. June 26, 2007) (case
dismissed for failure to state a claim); see also Hale v. NWCX, No. 1:11-cv-1083 (W.D. Tenn.
Dec. 28, 2011) (order listing Plaintiff’s §1915(g) cases, denying him in forma pauperis status,
and directing him to pay the full filing fee); Hale v. Steele, No. 3:12-cv-0476 (M.D. Tenn. May
18, 2012) (order listing Plaintiff’s §1915(g) cases, denying him in forma pauperis status, and
directing him to pay the full filing fee).
The Court has reviewed Plaintiff’s complaint. The claims presented therein are that
Defendants and several other individuals at the Deberry Special Needs Facility have been
retaliating against him since 2013, that he has been sleeping on a steel bed for more than a
month, and that he has been forced to stand nude in front of a female officer at the Hardeman
County Correctional Complex [Doc. 1 p. 3].
Clearly, none of these contentions possibly could qualify for the § 1915(g) “serious
physical injury” exception. Serious physical injury must exist at the time the complaint is filed.
Rittner v. Kinder, 290 Fed. App’x 796, 797 (6th Cir. 2008). Plaintiff was housed at the Bledsoe
County Correctional Facility when the complaint was filed; thus, allegations that he was
retaliated against at the Deberry Special Needs Facility or forced to stand nude at the Hardeman
County Correctional Facility do not show an impending “serious physical injury.” Id. at 797–98
(finding “a prisoner’s assertion that he or she faced danger in the past is insufficient to invoke the
exception”).
While Plaintiff’s bald assertion that he has been sleeping on a steel bed for more than a
month may be connected to his current confinement conditions, he alleges no injury therefrom

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which would rise to the level required to meet the exception as he has offered only “naked
assertion[s] devoid of further enhancement.” Taylor v. First Med. Mgmt., 508 Fed. App’x 488,
492 (6th Cir. 2012) (citations and internal quotation marks omitted). Such contentions do not
warrant the application of § 1915(g)’s imminent-danger exception. Id. (noting plaintiff had
failed to establish “facts supporting a finding of imminent danger on the date he filed his
complaint”).
Thus, Plaintiff must pay the entire $400.00 filing fee and may not pay it on an installment
basis. In re Alea, 286 F.3d 378, 381 (6th Cir. 2002) (finding a “prisoner litigant with three prior
strikes is not entitled to the pauper privileges generally provided by § 1915 and, more
specifically, may not use the periodic payment procedure set forth in § 1915(b)”).
Plaintiff’s motion for leave to proceed in forma pauperis is DENIED [Doc. 4].
Plaintiff’s case will be DISMISSED WITHOUT PREJUDICE to Plaintiff’s filing a new
complaint accompanied by the full filing fee.
A SEPARATE ORDER WILL ENTER.

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