Hamby v. Parker
Opinion of the Court
William D. Hamby, Jr., an inmate of the Morgan County Correctional Complex (MCCX) in Wartburg, Tennessee, brings this pro se action under
The Prison Litigation Reform Act (PLRA) provides the following under *824§ 1915(g) with respect to prisoner-plaintiffs:
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.
Plaintiff is subject to the "three-strikes" provision under
To fall within the statutory exception to the "three-strikes" rule, a prisoner must allege that the threat or prison condition is "real and proximate" and that the danger of serious physical injury exists at the time the complaint is filed. See Rittner v. Kinder,
The complaint alleges that Plaintiff suffers from "severe neuropathy" and, since his arrival to the MCCX, Defendants have not provided Plaintiff with his medication for neuropathy and refuse to give him access to any medical treatment. (Doc. No. 1 at 1). According to Plaintiff, Defendants provide white inmates with neuropathy medication but not Plaintiff, reflecting "racial bias." (Id. at 2). Plaintiff states that he is in "constant pain." (Id. )
Plaintiff has attached an inmate grievance dated September 22, 2017, in which he describes his problem as "denied access to any neuropathy meds ... due to my race of non-white ...." (Id. at 4). The grievance form contains the response by a chairperson (whose signature the Court cannot read) dated October 18, 2017, stating simply:
Summary of Supervisor's Response/Evidence: Denied. Chairperson's Response and Reason(s): Denied.
(Id. )
The imminent-danger exception *825is a pleading requirement subject to the ordinary principles of notice pleading. Vandiver v. Prison Health Servs., Inc.,
Other courts have rejected a requirement that the district courts scrutinize the seriousness of the continuing injury before granting a three-striker leave to proceed in forma pauperis. For example, in Ciarpaglini v. Saini,
[Section] 1915(g) is not a vehicle for determining the merits of a claim. To follow the [defendant's] logic, a district court would not just need to determine whether a prisoner is alleging some type of ongoing or imminent harm. It would also need to fine-tune what is "serious enough" to qualify for the exception. Is being denied heart medication? What about a cholesterol-lowering drug? How frequently do beatings need to occur before they are serious? This would result in a complicated set of rules about what conditions are serious enough, all for a simple statutory provision governing when a prisoner must pay the filing fee for his claim. This is not required, and so we find that the district court erred in concluding that [the plaintiff's] complaint didn't meet the imminent danger exception.
Although the present case presents a close call, the Court finds that Plaintiff's allegations that for a period of months Defendants have refused any medical treatment or medication for his "severe neuropathy" and that Plaintiff has continuing pain as a result of Defendants' failure to treat Plaintiff's known neuropathy condition adequately alleges facts supporting an inference that Plaintiff is in imminent danger of serious physical injury, for purposes of the threshold inquiry required by
From a review of his application, the Plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance. Therefore, the application to proceed in forma pauperis (Doc. No. 7) is hereby GRANTED .
Under § 1915(b), the Plaintiff nonetheless remains responsible for paying the full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA provides prisoner-Plaintiffs the opportunity to make a "down payment" of a partial filing fee and to pay the remainder in installments. Accordingly, the Plaintiff is hereby assessed the full $350 filing fee, 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."
(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.
(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. Acceptable forms of payment by pro se plaintiffs are cash, money order, cashier's check or credit card payment.
The Clerk of Court is DIRECTED send a copy of this order to the administrator of inmate trust fund accounts at the MCCX to ensure that the custodian of the Plaintiff's *827inmate trust account complies with that portion of
Finally, Plaintiff's motion to ascertain status of case (Doc. No. 5) is GRANTED . The Court will screen Plaintiff's complaint pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A(b), by separate Order and Memorandum and review Plaintiff's pending motions. Plaintiff is not required to take any further action at this time.
IT IS SO ORDERED.
See Hamby v. Lingle, 3:12-cv-0942 (M.D. Tenn. 9/18/12)(dismissed for failure to state a claim upon which relief can be granted); Hamby v. Johnson, 3:12-cv-1303,
Reference
- Full Case Name
- William D. HAMBY, Jr., 135146 v. Tony PARKER
- Cited By
- 7 cases
- Status
- Published