Champion v. Conley et al

Filing 4

ORDER DISMISSING CASE. Signed by Judge S. Thomas Anderson on 9/20/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CATHERINE LYNN QUICK a/k/a
PATRICK NEAL CHAMPION,
Plaintiff,
vs.
ALICE CONLEY, et al.,
Defendants.

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No. 13-2034-STA-tmp

ORDER OF DISMISSAL
AND
ORDER ASSESSING CIVIL FILING FEE

On January 16, 2013, Plaintiff Catherine Lynn Quick a/k/a
Patrick Neal Champion, Tennessee Department of Correction prisoner
number 328286, who is currently an inmate at the West Tennessee
State Penitentiary in Henning, Tennessee, filed a pro se civil
complaint, titled “Petition for Court Order/Intervention.” (ECF No.
1.) That filing purports to invoke this Court’s jurisdiction under
28 U.S.C. § 1391(b)(2), which addresses venue rather than subjectmatter jurisdiction. The Clerk docketed the case as arising under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
Plaintiff is a three-strike filer subject to the restrictions
contained in 28 U.S.C. § 1915(g), a fact he neglected to disclose
when he commenced this action. In an order issued on June 17, 2013,
the Court, inter alia, denied leave to proceed in forma pauperis

and directed Plaintiff to remit the entire $350 civil filing fee
within thirty (30) days. (ECF No. 2.) Plaintiff was cautioned that
“[f]ailure to do so will result in the assessment of the filing fee
directly from Plaintiff’s inmate trust fund account and dismissal
of this action for failure to prosecute.” (Id. at 4.)
Plaintiff has not paid the filing fee, and the time specified
in the June 17, 2013 order has expired. Instead, on July 2, 2013,
Plaintiff filed his Answer to Courts [sic] Order Filed 06/21/13.
(ECF No. 3.) That filing asserts that the Prison Litigation Reform
Act of 1996 (“PLRA”) is unconstitutional, that the case must
proceed if the filing fee is assessed, and that he is in imminent
danger of serous physical injury.
Plaintiff’s challenge to the constitutionality of the PLRA is
meritless. As stated in the previous order, the Sixth Circuit has
upheld the constitutionality of § 1915(g). Wilson v. Yaklich, 148
F.3d 596, 605 (6th Cir. 1998) (Ҥ 1915(g) does not infringe upon
the fundamental right of access to the courts”); see also Askew v.
McCabe, No. 08-13567, 2010 WL 3464767, at *1 (E.D. Mich. Aug. 31,
2010) (rejecting First Amendment challenge to PLRA); Lacefield v.
WERG-TV, Inc., No. 05-2180-Ml/V, 2006 WL 1699467, at *1 (W.D. Tenn.
June 15, 2006) (same). Therefore, the Court is required to assess
the civil filing fee for all prisoner cases and, because Plaintiff
is a three-strike filer, cannot consider the merits of his claims
unless he pays the civil filing fee or demonstrates that he is in
imminent danger of serious physical injury.

2

Plaintiff’s filing also asserts that he is in imminent danger
of serious physical injury. He states that Defendants’ use of his
former name “causes mental and emotional stress upon an already
tenuous emotional ground. . . . I am a FEDERALLY Diagnosed M.T.F.
Transsexual, have been in Mental turmoil all my life and daily
fight the urge to commit suicide and to do dangerous self surgery!”
(ECF No. 3 at 2.) Plaintiff asserts that “the actions of Alice
Conley

and

her

staff

are

damaging

irreparably

[Plaintiff’s]

treatment and are making [Plaintiff] more tempted & more likely to
committ [sic] and succeed in [his] next suicide attempt. If that is
not life threatening or of immenant [sic] danger, then there is no
danger to anyone from anything!” (Id.)
Plaintiff’s

new

allegations

are

not

properly

considered

because they are not contained in an amendment to the complaint.
Even if they were considered, they are insufficient to show that
Plaintiff was in imminent danger of serious physical injury when he
commenced

this

action.

“Allegations

that

are

conclusory,

ridiculous, or clearly baseless are . . . insufficient for purposes
of the imminent-danger exception.” Taylor v. First Med. Mgmt., 508
F. App’x 488, 492 (6th Cir. 2012). Threats by third parties to
injure an inmate in the future are insufficient to satisfy the
“imminent danger” requirement. See, e.g., Rittner v. Kinder, 290 F.
App’x 796, 798 (6th Cir. 2008); Davis v. Cook, 4 F. App’x 261, 262
(6th Cir. 2001); Johnson v. Anderson, No. 2:09-CV-1441, 2009 WL
4064135, at *2 (E.D. Mich. Nov. 20, 2009); Tucker v. Shaheen, No.
09-12942, 2009 WL 3199688, at *3 (E.D. Mich. Sept. 30, 2009).
3

Plaintiff’s suggestion that he might attempt suicide or selfmutilation if Defendants are permitted to address him by the name
under which he committed his federal crimes is insufficient to
satisfy the “imminent danger” exception.1
Even if Plaintiff’s threats to injure himself were sufficient,
any danger is not “imminent.” Plaintiff’s complaint seeks an order
directing Defendants to refer to Plaintiff by the name “Catherine
Lynn Quick” “when he begins his period of federal supervised
release after he has served the state sentence for which he is
presently incarcerated. . . . According to the Tennessee Department
of Correction, Plaintiff is not eligible for release until October
2, 2018.” (ECF No. 2 at 4 (footnotes omitted).)2
Plaintiff’s submission does not contain any promise to pay the
civil filing fee in the event his arguments are rejected. Plaintiff
also has not established that he is financially eligible to pay the
fee in installments under 28 U.S.C. § 1915(b). Because Plaintiff
has not paid the civil filing fee within the time specified, the
case is DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. Judgment shall be entered for
Defendants.

1
The speculative nature of the danger claimed by Plaintiff is
demonstrated by the fact that no ill effects were claimed after issuance of an
order on April 12, 2010 by United States District Judge Samuel H. Mays, Jr.
denying Plaintiff’s motion for an amended criminal judgment and commitment order
reflecting his new name. (Order Denying Def.’s Mot. for an Am. J. & Commitment
Order, United States v. Champion a/k/a Quick, No. 99-20160-SHM (W.D. Tenn.), ECF
No. 119.)
2

Since the issuance of the previous order, Plaintiff’s release date
has been advanced to September 26, 2018. See https://apps.tn.gov/foil/search.jsp
(Tennessee Felony Offender Information Lookup).

4

Notwithstanding the dismissal of this action, the Court is
still

required

to

assess

the

civil

filing

fee,

since

the

responsibility for paying the filing fee accrues at the time a
complaint is filed. McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th
Cir. 1997); cf. In re Alea, 286 F.3d 378, 381-82 (6th Cir. 2002)
(dismissal of civil action filed by prisoner pursuant to 28 U.S.C.
§ 1915(g) did not obviate the obligation to pay the filing fee).
Pursuant

to

28

U.S.C.

§

1915(b)(1),

it

is

ORDERED

that

Plaintiff cooperate fully with prison officials in carrying out
this order. It is further ORDERED that the trust fund officer at
Plaintiff’s prison shall withdraw from Plaintiff’s trust fund
account the sum of $350 and forward that amount to the Clerk of
this Court. If the funds in Plaintiff’s account are insufficient to
pay the full amount of the civil filing fee, the prison official is
instructed to withdraw all of the funds in Plaintiff’s account and
forward them to the Clerk of Court.
are

subsequently

credited

to

On each occasion that funds

Plaintiff’s

account,

the

prison

official shall immediately withdraw those funds and forward them to
the Clerk of Court, until the civil filing fee is paid in full. The
trust fund officer is not required to remit any balance less than
$10, unless that amount would constitute the final installment of
the civil filing fee, provided that any balance under $10 is held
in custody for purposes of paying the civil filing fee in this
action and is promptly remitted to the Clerk when sufficient funds
are deposited into Plaintiff’s account to bring the balance to $10.

5

Each time that the trust fund officer makes a payment to the
Court as required by this order, he shall print a copy of the
prisoner’s account statement showing all activity in the account
since the last payment under this order and file it with the Clerk
along with the payment.
All payments and account statements shall be sent to:
Clerk, United States District Court, Western District of
Tennessee, 167 N. Main. Room 242, Memphis, TN 38103
and shall clearly identify Plaintiff’s name and the case number on
the first page of this order.
If Plaintiff is transferred to a different prison or released,
he is ORDERED to notify the Court immediately of his change of
address. If still confined, he shall provide the officials at the
new prison with a copy of this order.
The Clerk shall mail a copy of this order to the prison
official in charge of prison trust fund accounts at Plaintiff’s
prison. The Clerk is further ORDERED to forward a copy of this
order to the Director of the WTSP to ensure that the custodian of
Plaintiff’s inmate trust account complies with that portion of the
PLRA pertaining to the payment of filing fees.
IT IS SO ORDERED this 20th day of September, 2013.

s/S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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