Brown v. Perry et al

Filing 10

ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DIRECTING PLAINTIFF TO PAY THE $400 CIVIL FILING FEE, ADDRESSING PENDING MOTIONS AND PROHIBITING FILING OF FURTHER MOTIONS AND DOCUMENTS UNTIL THE FILING FEE IS PAID 1 2 5 6 8 9 . Signed by Judge James D. Todd on 3/21/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
RICKY FLAMINGO BROWN. SR.,
Plaintiff,
VS.
GRADY PERRY, ET AL.,
Defendants.

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No. 17-1036-JDT-cgc

ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
AND DIRECTING PLAINTIFF TO PAY THE $400 CIVIL FILING FEE,
ADDRESSING PENDING MOTIONS AND PROHIBITING FILING OF FURTHER
MOTIONS AND DOCUMENTS UNTIL THE FILING FEE IS PAID

On March 6, 2017, Plaintiff Ricky Flamingo Brown, Sr., Tennessee Department of
Correction (TDOC) prisoner number 134855, who is currently incarcerated at the
Riverbend Maximum Security Institution (RMSI) in Nashville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to
proceed in forma pauperis. (ECF Nos. 1 & 2.) The complaint concerns events that
occurred while Brown was previously incarcerated at the Hardeman County Correctional
Facility (HCCF) in Whiteville, Tennessee. The Clerk shall record the Defendants as
HCCF Warden Grady Perry, HCCF Assistant Warden Daniel Akers, HCCF Instructor
Kenneth Wilkes, Captain Smith,1 CoreCivic,2 and Hardeman County.

1

Brown added Captain Smith as a Defendant in an amendment filed on March 15, 2017.

Under the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b), a
prisoner bringing a civil action must pay the full filing fee required by 28 U.S.C.
§ 1914(a). 3

The statute merely provides the prisoner the opportunity to make a

“downpayment” of a partial filing fee and pay the remainder in installments. See McGore
v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997) (“[w]hen an inmate seeks pauper
status, the only issue is whether the inmate pays the entire fee at the initiation of the
proceeding or over a period of time under an installment plan. Prisoners are no longer
entitled to a waiver of fees and costs.”), partially overruled on other grounds by
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
However, not all indigent prisoners are entitled to take advantage of the installment
payment provisions of § 1915(b). Section 1915(g) provides as follows:
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.

(ECF No. 4.) He filed a similar amendment on April 13, 2017. (ECF No. 7.)
2

Brown purports to name CoreCivic Safety, CoreCivic Property and CoreCivic
Community as separate Defendants (see ECF No. 1 at 1); however, the Court construes all the
claims as brought against a single entity known as CoreCivic.
3

The civil filing fee is $350. See 28 U.S.C. § 1914(a). The Schedule of Fees set out
following the statute also requires the Clerk to collect an administrative fee of $50 for filing any
civil case. That additional $50 fee does not apply if a plaintiff is granted leave to proceed in
forma pauperis. However, because the Court has now determined that Plaintiff is not entitled to
pauper status, he is liable for the entire $400 fee.
2

Thus, “[s]uch a litigant cannot use the period payment benefits of § 1915(b). Instead, he
must make full payment of the filing fee before his action may proceed.” In re Alea, 286
F.3d 378, 380 (6th Cir. 2002). The Sixth Circuit has upheld the constitutionality of this
provision. Wilson v. Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).
Plaintiff has filed more than three previous civil rights lawsuits while he was
incarcerated that were dismissed for failure to state a claim or as frivolous.4 Therefore,
Plaintiff may not proceed in forma pauperis in any civil action filed while he is
incarcerated unless he demonstrates that he is under imminent danger of serious physical
injury. The assessment of whether a prisoner is in imminent danger must be made at the
time of the filing of the complaint. See, e.g., Vandiver v. Vasbinder, 416 F. App’x 560,
561-62 (6th Cir. 2011) (stating that the injury must be “presently existing” when the
plaintiff filed the complaint); Rittner v. Kinder, 290 F. App’x 796, 797-98 (6th Cir. 2008);
Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002); Abdul-Akbar v. McKelvie, 239
F.3d 307, 312-16 (3d Cir. 2001) (en banc).
The complaint in this case is comprised of a form § 1983 complaint (ECF No. 1); a
separate “Statement of Complaint” (ECF No. 1-2); a separate affidavit (ECF No. 1-3) with
exhibits (ECF No. 1-4); a separate document titled “Requested Damages for Relief” (ECF
4

See Brown v. Kilburn, No. 1:96-cv-00158 (M.D. Tenn. Aug. 26, 1997) (dismissed as
frivolous); Brown v. Carpenter, No. 2:95-cv-02260-JPM (W.D. Tenn. May 9, 1995) (dismissed as
frivolous); Brown v. Bradley, No. 1:93-cv-00111 (M.D. Tenn. Feb. 12, 1994) (dismissed as
frivolous); Brown v. Westbrooks, No. 1:93-cv-00198 (M.D. Tenn. Dec. 30, 1993) (dismissed as
frivolous); and Brown v. Breslin, No. 3:91-cv-00619 (M.D. Tenn. Mar. 18, 1992) (dismissed as
frivolous).
3

No. 1-5) with exhibits (ECF No. 1-6); two documents titled “Amendment to Original
Complaint” (ECF Nos. 1-7 & 1-8); and numerous additional exhibits (ECF No. 1-1).
However, all of the claims raised in Brown’s complaint concern events that occurred
during his previous incarceration at the HCCF. For purposes of determining imminent
danger, the Court summarizes those allegations as follows.

Brown alleges that in

December 2016, he was exposed to poor conditions of confinement including unsanitary
conditions, was injured by excessive force, was denied access to the courts, was assigned to
segregation without due process, was retaliated against, and was endangered by a failure to
supervise. (See ECF Nos 1, 1-2, 1-7, & 1-8.) On October 4, 2017, Brown filed a motion
to amend in which he appears to further challenge his disciplinary proceeding and the
outcome of his state-court appeal thereof as a violation of due process. (ECF No. 9.)
That motion is GRANTED.
Although Brown asserts in his complaint that he was in imminent danger at the
HCCF, at the time that he actually filed the complaint in March 2017 he already had been
transferred from the HCCF to the RMSI. (See ECF No. 1 at 1.) Brown does not allege
that he continued to be in imminent danger at the RMSI as a result of any events that had
previously occurred at the HCCF. Likewise, the October 2017 amendment alleging a
further violation of due process in connection with his disciplinary proceeding contains
nothing to suggest he was in imminent danger at the time it was filed. Thus Brown has
“failed to plead facts supporting a finding of imminent danger on the date that he filed his
complaint” or his amended complaint. Taylor v. First Med. Mgmt., 508 F. App’x 488,
4

492-93 (6th Cir. 2012). Because neither the original complaint nor the amendment comes
within the exception to 28 U.S.C. § 1915(g), the Court cannot consider Brown’s claims on
the merits unless he first tenders the civil filing fee. Therefore, the motion to proceed in
forma pauperis is DENIED pursuant to § 1915(g).
Brown is ORDERED to remit the entire $400 civil filing fee within thirty (30) days
after the date of this order. Failure to do so will result in the assessment of the filing fee
from Brown’s inmate trust account without regard to the installment procedures and
dismissal of this action for failure to prosecute. Alea, 286 F.3d at 381-82.
Brown filed a motion for appointment of counsel on March 15, 2017. (ECF No. 5.)
At this stage of the proceeding, that motion is premature and is DENIED. Likewise, his
motion for production of medical records (ECF No. 6) and motion to hold a scheduling
conference (ECF No. 8) are premature and are DENIED. Brown is hereby PROHIBITED
from filing any further motions or documents in this case until the full filing fee of $400 is
paid. The Clerk is directed not to accept for filing any further motions or documents from
Brown in this case until the full filing fee is received.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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