Opinion
Case No. 2:18-cv-148
02-03-2020
CHARLES MONTAGUE, Plaintiff, v. ED GRAYBEAL, JR., JOHN DOE/JANE DOE, CAPT. LOWE, and WASHINGTON COUNTY, TENN., Defendants.
Magistrate Judge Cynthia R. Wyrick
MEMORANDUM AND ORDER
Plaintiff is proceeding pro se and in forma pauperis in a prisoner civil rights action brought under 42 U.S.C. § 1983. This matter is before the Court upon a sua sponte consideration of Plaintiff's in forma pauperis status, which the Court finds should be revoked.
I. APPLICATION OF "THREE STRIKES"
The "three strikes" provision of the Prison Litigation Reform Act ("PLRA") provides that an inmate may not proceed in forma pauperis in a civil action if he has had three or more cases 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. 28 U.S.C. § 1915(g).
Plaintiff was granted permission to proceed in forma pauperis in this § 1983 action by order entered January 11, 2019 (Doc. 9). By that time, however, Plaintiff had previously brought at least three prior civil actions that had been dismissed as frivolous and/or for failure to state a claim upon which relief could be granted. (See Doc. 4 in, Montague v. Schofield, Case No. 2:14-cv-292 (E.D. Tenn. Jul. 19, 2016) (dismissing complaint for failure to state a claim upon which relief may be granted); Doc. 4, in Montague v. Warren, Case No. 2:95-cv-392 (E.D. Tenn. Nov. 2, 1995) (dismissing complaint as frivolous)); Montague v. Corr. Corp. of Am., No. 3:10-CV-00443, 2010 WL 3853361, at *1 (M.D. Tenn. Sept. 30, 2010) (recommending dismissal of complaint for failure to state a claim), report and recommendation adopted, No. 3-10-0443, 2010 WL 4179942 (M.D. Tenn. Oct. 20, 2010).
The Court notes "that dismissals of previous actions entered prior to the effective date of the PLRA may be counted toward the 'three strikes' referred to in 28 U.S.C. § 1915(g)." Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998).
Accordingly, the Court finds that Plaintiff has abused his in forma pauperis privileges and that his motion to proceed in forma pauperis in this civil action was improvidently granted. Therefore, Plaintiff cannot proceed in the instant suit, or any future suit, as a pauper unless he can demonstrate that he is in imminent danger of serious physical harm. 28 U.S.C. § 1915(g).
II. IMMINENT DANGER
The imminent-danger exception, as explained in Vandiver v. Prison Health Services, Inc., 727 F.3d 580 (6th Cir. 2013), "is essentially a pleading requirement subject to the ordinary principles of notice pleading." Id. at 585 (quoting Vandiver v. Vasbinder, 416 F. App'x 560, 562 (6th Cir. 2011)). The exception applies when the pleading contains "a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Plausibility in this context means that 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 the pleading. Taylor v. First Med. Mgmt., 508 F. App'x 488, 492 (6th Cir. 2012)).
Plaintiff was permitted to proceed in this action only on a claim that Defendants refused his requests to refill a prescription of Absorbase/Eucerin to treat a skin condition, which resulted in a worsening of his skin condition. (Doc. 2, at 7; Doc. 11, at 2-3, 8, 11.) Absorbase is a moisturizer used to treat dry skin and minor skin irritations. See, e.g., WebMD, Absorbase Ointment, https://www.webmd.com/drugs/2/drug-20229/absorbase-topical/details. Plaintiff does not allege, nor does his complaint allow the Court to infer, that dry skin or a minor skin irritation is the sort of serious physical injury that the imminent-danger exception is designed to protect. See, e.g., Simpson v. Pramstaller, No. 1:10-CV-260, 2010 WL 1433409, at *2 (W.D. Mich. Mar. 31, 2010) (finding skin rash is not condition threatening serious harm or death). Therefore, the Court will REVOKE Plaintiff's in forma pauperis status and require him to remit the full filing fee to sustain this action. See Yaklich, 148 F.3d at 603 (noting courts "have long been authorized to revoke a prisoner's ability to proceed in forma pauperis upon determining that the litigant was taking unfair advantage of IFP procedures").
III. CONCLUSION
For the reasons set forth above, it is ORDERED:
1. Plaintiff's in forma pauperis status is REVOKED;
2. Plaintiff must PAY the full $400 filing fee in this cause within fourteen (14) days of entry of this order; and
3. Plaintiff's failure to make payment of the full filing fee within fourteen (14) days of entry of this order will result in the DISMISSAL of this case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
SO ORDERED.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE