Brown v. Reheal

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

RICKY FLAMINGO BROWN, )

)

Plaintiff, )

)

v. ) No.: 3:25-CV-370-TAV-DCP

)

TANNER REHEAL, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Ricky Flamingo Brown, a prisoner incarcerated at the Northwest

Correctional Complex who is proceeding pro se in this civil rights action under 42 U.S.C.

§ 1983 [Doc. 2], has filed a motion for leave to proceed in forma pauperis [Doc. 1]. For

the reasons set forth below, the Court finds that Plaintiff’s motion [Id.] should be denied

and this action dismissed without prejudice to Plaintiff’s ability to pay the $405.00 filing

fee in full and thereby reinstate this case.

I. LAW AND ANALYSIS

The resolution of Plaintiff’s motion to proceed in forma pauperis is guided by what

is commonly referred to as the “three strikes” provision of the Prison Litigation Reform

Act (“PLRA”), 28 U.S.C. § 1915(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.”

28 U.S.C. § 1915(g).

Plaintiff acknowledges that he has had cases previously dismissed based on the three

strikes rule [Doc. 2, p. 13; Doc. 2-2]. And the Court confirms that Plaintiff has previously

filed at least three cases as a prisoner that were dismissed as frivolous. See, e.g., Brown v.

Powell, No. 2:09-CV-63 (E.D. Tenn. June 9, 2009) (dismissing complaint pursuant to three

strikes rule and noting plaintiff had previously filed numerous cases that were dismissed

as frivolous); Brown v. Perry, No. 1:17-CV-1036 (W.D. Tenn. Mar. 21, 2018) (denying

plaintiff’s motion to proceed as a pauper and listing five cases Plaintiff had previously filed

that were dismissed as frivolous). Therefore, Plaintiff 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 harm. 28 U.S.C. § 1915(g).

To avail himself to the “imminent danger” exception under § 1915(g), Plaintiff’s

complaint must contain “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). Here, Plaintiff’s complaint alleges past harm; it does not allege that he is

currently in imminent danger of serious physical injury. Therefore, Plaintiff is not entitled

to the emergency intervention envisioned by the three-strikes exception to the PLRA.

II. CONCLUSION

For the reasons set forth above, Plaintiff’s motion1 to proceed in forma pauperis

[Doc. 1] is DENIED pursuant to § 1915(g), and the instant action will be DISMISSED

without prejudice to Plaintiff’s ability to pay the $405.00 filing fee in full and thereby

1 The Court notes that the motion is also deficient, as it is not accompanied by the required

inmate trust account statement for the previous six months. See 28 U.S.C. § 1915(a)(2).

reinstate this case. See In re Alea, 286 F.3d 378, 381 (6th Cir. 2002) (noting that prisoner’s

obligation to pay filing fee arises when complaint delivered to district court clerk).

Accordingly, this case will be CLOSED.

Finally, 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 28 U.S.C. § 1915(a)(3);

Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE