Rowan v. Alliance Healthcare Services et al

Filing 6

ORDER DIRECTING PLAINTIFF TO PAY THE FULL $400 CIVIL FILING FEE ORDER DENYING PENDING MOTIONS AND ORDER PROHIBITING FURTHER FILINGS UNTIL FILING FEE IS PAID 2 4 5 . THE CLERK IS DIRECTED TO RETURN ANY FURTHER MOTIONS TO PLAINTIFF UNTIL THE FILING FEE IS PAID. Signed by Judge James D. Todd on 6/24/15. (Todd, James)

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

BRENT ROWAN,
Plaintiff,
VS.
ALLIANCE HEALTHCARE,
SERVICES, et al.,
Defendants.

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No. 15-2141-JDT-dkv

ORDER DIRECTING PLAINTIFF TO PAY THE FULL $400 CIVIL FILING FEE
ORDER DENYING PENDING MOTIONS
AND
ORDER PROHIBITING FURTHER FILINGS UNTIL FILING FEE IS PAID

On February 25, 2015, Plaintiff Brent Rowan, booking number 15102052, an inmate
at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983. (§ 1983 Compl., Rowan v. Alliance Healthcare
Services, 2:15-cv-02141-JDT-dkv (W.D. Tenn.), ECF No. 1.) Rowan filed an accompanying
motion seeking leave to proceed in forma pauperis. On May 15, 2015, On May 15, 2015,
Rowan filed a motion for the Court to review medical records regarding an incident that
occurred at a Motel 6. (Mot. for Judge to Review Med. Records, id., ECF No. 4). On May
27, 2015, Rowan filed a Motion for Leave to Serve Process. (Mot. for Leave to Serve
Process, id., ECF No. 5.)
Under the Prison Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. §§ 1915(a)-(b),

a prisoner bringing a civil action must pay the full filing fee of $400 required by 28 U.S.C.
§ 1914(a).1 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) ("When 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.").
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.
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 three previous lawsuits that were dismissed for failure to state a

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Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. However, pursuant to § 1914(b), "[t]he
clerk shall collect from the parties such additional fees only as are prescribed by the Judicial Conference of the
United States." Effective May 1, 2013, the Judicial Conference prescribed an additional administrative fee of $50 for
filing any civil case, except for cases in which the plaintiff is granted leave to proceed in forma pauperis under 28
U.S.C. § 1915.

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claim or as frivolous.2 Therefore, Plaintiff may not take advantage of the installment-payment
provisions of 28 U.S.C. § 1915(b) unless he is in imminent danger of serious physical injury.
It is also necessary to consider whether the exception to the "three strikes" provision
is applicable here. The assessment whether a prisoner is in imminent danger is 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); 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).
Plaintiff sues Alliance Healthcare Services, Tara Brooks, and Oddye Fisher. The
complaint alleges:
During my residency at Beers Van Gogh Center of Excellence, I search for
another address. After moving out of that agency, I looked for several address.
I tried to notify the housing director at UALR. And I gave the agency's case
manager a pamphlet from Fordham University. I used my tax transcripts as
references for an apartment. I used an apartment guide. Those guides were
discarded during my time at booking in the jail. So, I need a case manager to
respond to the Memphis Housing Authority. I need a Section 8 Housing
voucher to be reviewed by my public defender. The Memphis Housing
Authority has received my employment letters from the LSAC. I can provide
the courts with information from the Bureau of TennCare about residency with
TMHCA from the post office. I met with the TMHCA's staff.
(§ 1983 Compl., Rowan v. Alliance Healthcare Services, 2, ECF No. 1.)

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Plaintiff has filed a multitude of lawsuits in this district, most of which were commenced when he was not
a prisoner. Service has not been ordered in any of Plaintiff's suits. Plaintiff incurred "strikes" under 28 U.S.C. §
1915(g) for Rowan v. Pizza Hut, No. 2:10-cv-02658-JDT-dkv (W.D. Tenn.) (dismissed for failure to state a claim
Sept. 2, 2011); Rowan v. Currie, No. 2:12-cv-02264-JDT-dkv (W.D. Tenn.) (dismissed for failure to state a claim
Nov. 26, 2012); and Rowan v. City of Memphis, No. 2:12-cv-02707-JDT-cgc (W.D. Tenn.) (dismissed for failure to
state a claim Feb. 7, 2013).

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Plaintiff's complaint does not allege that he was in imminent danger of serious
physical injury on the day 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). Plaintiff has
"failed to plead facts supporting a finding of imminent danger on the date that he filed his
complaint." Taylor, 508 F. App'x at 492-93. Because this complaint does not come within
the exception to 28 U.S.C. § 1915(g), the Court cannot consider it on the merits unless
Plaintiff first tenders the civil filing fee. Plaintiff may not proceed in forma pauperis
pursuant to U.S.C. § 1915(g).
Plaintiff is ORDERED to remit the entire $400 civil filing fee within thirty (30) days
of the date of filing of this order. Failure 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. Alea, 286 F.3d at 381-82.
Plaintiff's complaint has not been served on any Defendant. Plaintiff's Motion for
Leave to Proceed in forma pauperis is DENIED. Plaintiff's remaining pending motions (ECF
Nos. 4-5) are also DENIED. Plaintiff is ORDERED to file no further motions in this action
until he has remitted the entire filing fee. The Clerk is directed to return any further motions
to Plaintiff until the filing fee is paid.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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