Farmer v. Branstetter

E.D. Tennessee

Farmer v. Branstetter

DecidedSeptember 18, 2023

Docket3:23-cv-00303

StatusUnknown

This text of Farmer v. Branstetter (Farmer v. Branstetter) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Farmer v. Branstetter, (E.D. Tenn. 2023).

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Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

KEITH LAMONT FARMER, ) ) Case No. 3:23-cv-303 Plaintiff, ) ) Judge Atchley v. ) ) Magistrate Judge Poplin WELMA BRANSTETTER, et al., ) ) Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, an inmate in the custody of the Tennessee Department of Correction currently housed in the Morgan County Correctional Complex (“MCCX”), has filed a “Motion, § 1968 Civil Investigative Demand” that he asks the Court “to forward unto the Criminal Court of Morgan County” [Doc. 1]; an “Affidavit of Criminal Complaint” to be filed in the Criminal Court of Morgan County [Doc. 2]; a “Cease and Desist Order” [Doc. 3]; and a motion for leave to proceed in forma pauperis [Doc. 6]. For the reasons set forth below, the Court will deny Plaintiff’s motion to proceed as a pauper [Doc. 6] and dismiss this action without prejudice. I. “THREE STRIKES” UNDER 28 U.S.C. § 1915 Plaintiff is barred from proceeding in forma pauperis in this action because of 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). As a prisoner, Plaintiff has had at least three cases dismissed for failure to state a claim upon which relief may be granted. See Farmer v. Davidson Cnty. Sheriff’s Off., No. 3:12-CV-434 (M.D. Tenn. May 9, 2012) (dismissal for failure to state a claim); Farmer v. Munkeboe, No. 3:17- CV-1356 (M.D. Tenn. May 29, 2018) (same); Farmer v. Phillips, No. 1:19-CV-1211 (W.D. Tenn. May 5, 2020) (same). Therefore, the Court finds that Plaintiff has abused his in forma pauperis privileges and 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). II. IMMINENT DANGER The three strikes provision of the PLRA has an exception which 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, 493 F.3d 1047, 1055 (9th Cir. 2007). This exception “is essentially a pleading requirement subject to the ordinary principles of notice pleading.” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (quoting Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011)). It 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., 508 F. App’x 488, 492 (6th Cir. 2012) (citation omitted). Plaintiff complains that his stimulus refund check was stolen by Defendants. [See generally Doc. 1]. Plaintiff’s allegations raise no possibility that he faced any danger from Defendants at the time he initiated this action. Accordingly, Plaintiff may not proceed as a pauper in these proceedings. 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, 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. 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 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24. AN APPROPRIATE JUDGMENT ORDER WILL ENTER. /s/ Charles E. Atchley, Jr. CHARLES E. ATCHLEY JR. UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

KEITH LAMONT FARMER, ) ) Case No. 3:23-cv-303 Plaintiff, ) ) Judge Atchley v. ) ) Magistrate Judge Poplin WELMA BRANSTETTER, et al., ) ) Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, an inmate in the custody of the Tennessee Department of Correction currently housed in the Morgan County Correctional Complex (“MCCX”), has filed a “Motion, § 1968 Civil Investigative Demand” that he asks the Court “to forward unto the Criminal Court of Morgan County” [Doc. 1]; an “Affidavit of Criminal Complaint” to be filed in the Criminal Court of Morgan County [Doc. 2]; a “Cease and Desist Order” [Doc. 3]; and a motion for leave to proceed in forma pauperis [Doc. 6]. For the reasons set forth below, the Court will deny Plaintiff’s motion to proceed as a pauper [Doc. 6] and dismiss this action without prejudice. I. “THREE STRIKES” UNDER 28 U.S.C. § 1915 Plaintiff is barred from proceeding in forma pauperis in this action because of 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). As a prisoner, Plaintiff has had at least three cases dismissed for failure to state a claim upon which relief may be granted. See Farmer v. Davidson Cnty. Sheriff’s Off., No. 3:12-CV-434 (M.D. Tenn. May 9, 2012) (dismissal for failure to state a claim); Farmer v. Munkeboe, No. 3:17- CV-1356 (M.D. Tenn. May 29, 2018) (same); Farmer v. Phillips, No. 1:19-CV-1211 (W.D. Tenn. May 5, 2020) (same). Therefore, the Court finds that Plaintiff has abused his in forma pauperis privileges and 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). II. IMMINENT DANGER The three strikes provision of the PLRA has an exception which 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, 493 F.3d 1047, 1055 (9th Cir. 2007). This exception “is essentially a pleading requirement subject to the ordinary principles of notice pleading.” Vandiver v. Prison Health Servs., Inc., 727 F.3d 580, 585 (6th Cir. 2013) (quoting Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011)). It 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., 508 F. App’x 488, 492 (6th Cir. 2012) (citation omitted). Plaintiff complains that his stimulus refund check was stolen by Defendants. [See generally Doc. 1]. Plaintiff’s allegations raise no possibility that he faced any danger from Defendants at the time he initiated this action. Accordingly, Plaintiff may not proceed as a pauper in these proceedings. 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, 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. 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 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24. AN APPROPRIATE JUDGMENT ORDER WILL ENTER. /s/ Charles E. Atchley, Jr. CHARLES E. ATCHLEY JR. UNITED STATES DISTRICT JUDGE

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