UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

JAMES SWANN, ) ) Plaintiff, ) ) Case No. 1:24-cv-235 v. ) ) Judge Travis R. McDonough JEFF CASSIDY, SULLIVAN COUNTY ) DETENTION CENTER, and SULLIVAN ) Magistrate Judge Susan K. Lee COUNTY SHERIFF’S OFFICE, ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff James Swann, a prisoner incarcerated in the Sullivan County Detention Center, filed a complaint

(Doc. 1) and a motion for leave to proceed in forma pauperis (Doc. 6). Because the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”) prohibits Plaintiff from proceeding as a pauper in this action, the Court DENIES Plaintiff’s motion and DISMISSES this action without prejudice to Plaintiff’s ability to pay the filing fee in full and reinstate this case. I. “THREE STRIKES” UNDER

The resolution of Plaintiff’s motion to proceed in forma pauperis is guided by the “three strikes” provision of PLRA,

(g). This provision provides that an inmate may not proceed in forma pauperis in a civil action if, as a prisoner, he has filed three or more cases that a court dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, unless he “is under imminent danger of serious physical injury.”

(g). Plaintiff has received at least three “strikes” under the PLRA for filing complaints that fail to state a claim upon which relief may be granted. See Swann v. Washington County Jail, No. 1:22-CV-179,

(E.D. Tenn. Sept. 6, 2022) (citing Swann v. Penske, No. 1:20-CV-264 (E.D. Tenn. July 19, 2021); Swann v. District Attorney of Kingsport, et al., No. 1:22-CV-25 (E.D. Tenn. Feb. 7, 2022); Swann v. Swann, No. 2:21-CV-193 (E.D. Tenn. Feb. 24,

2022)); see also Swann v. Barrong, No. 1:24-CV-149 (E.D. Tenn. June 11, 2024) (denying motion to proceed in forma pauperis and dismissing case without prejudice based on Plaintiff’s accumulation of strikes). Accordingly, Plaintiff has abused his in forma pauperis privileges. Therefore, the Court finds that he cannot file the instant suit, or any future suit, as a pauper unless he can demonstrate that he is in imminent danger of serious physical injury.

(g). II. IMMINENT DANGER The PLRA’s “imminent danger” exception allows a prisoner with three or more “strikes” to proceed in forma pauperis if his complaint contains “a plausible allegation that the prisoner

faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes,

(9th Cir. 2007). This imminent danger exception “is essentially a pleading requirement subject to the ordinary principles of notice pleading.” Vandiver v. Prison Health Servs., Inc.,

(6th Cir. 2013) (quoting Vandiver v. Vasbinder,

(6th Cir. 2011)). The exception applies where a court, “informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable inference’” that a plaintiff faced an existing danger when he filed his complaint. Taylor v. First Med. Mgmt.,

(6th Cir. 2012) (citation omitted). But it is intended “as an escape hatch for genuine emergencies only.” Lewis v. Sullivan,

(7th Cir. 2002). Therefore, the threat must also be “real and proximate” at the time the complaint was filed. Rittner v. Kinder,

(6th Cir. 2008). In his complaint, Plaintiff complains that the Sullivan County Jail served all the inmates on his cell block dinner one evening on trays with “a white scum” and “old food/mold” on the bottom (Doc. 1, at 3–4). And even though the inmates complained, they did not get a new meal

on clean trays. (Id. at 4.) These allegations do not allow the Court to draw the reasonable inference that Plaintiff was in imminent danger of serious physical injury when he filed this complaint. Accordingly, the Court declines to find that Plaintiff is entitled to the emergency intervention envisioned by the three-strikes exception to the PLRA, and he is not allowed to proceed as a pauper in this action. III. CONCLUSION For the reasons set forth above, Plaintiff’s motion to proceed in forma pauperis (Doc. 6) is DENIED pursuant to § 1915(g), and the instant action will be DISMISSED without prejudice to Plaintiff’s ability to pay the filing fee in full and thereby reinstate this case. See In re Alea,

(6th Cir. 2002) (noting that prisoner’s obligation to pay filing fee arises when complaint delivered to district court clerk). Additionally, the Court CERTIFIES that any appeal from this decision would not be taken in good faith and would be totally frivolous, such that any request for leave to proceed in forma pauperis on any subsequent appeal will be DENIED. See

(a)(3); Fed. R. App. P. 24. AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

/s/ Travis R. McDonough TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE