Bailey v. Rood

• Decision Date: 04 January 2023
• Docket Number: 3:22-cv-00052
• Parties: MICHAEL BERNARD BAILEY, Plaintiff, v. SAVANNAH ROOD et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

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MICHAEL BERNARD BAILEY, Plaintiff, v. SAVANNAH ROOD et al., Defendants.

No. 3:22-cv-00052

United States District Court, M.D. Tennessee, Nashville Division

January 4, 2023

Aleta A. Trauger, Judge.

To The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

ALISTAIR E. NEWBERN, United States Magistrate Judge.

This civil rights action brought under 42 U.S.C. § 1983 arises out of pro se and in forma pauperis Plaintiff Michael Bernard Bailey's incarceration at Riverbend Maximum Security Institution (RMSI) in Nashville, Tennessee. (Doc. No. 22.) Bailey alleges that Defendant RMSI counselor Savannah Rood violated his Eighth Amendment rights by approaching Bailey's cell door on four occasions and demanding that Bailey perform sexual activity for Rood to watch.^[1](Id.)

Rood has filed two motions to dismiss directed at Bailey's original and amended complaints, respectively, arguing that the Prison Litigation Reform Act's (PLRA) three-strikes rule, 28 U.S.C. § 1915(g), prohibits Bailey from proceeding in forma pauperis (IFP) and asking the Court to dismiss this action or, in the alternative, to revoke Bailey's authorization to proceed IFP and require him to pay the Court's civil filing fee in full. (Doc. Nos. 17, 27.) Bailey has responded in opposition to Rood's motions (Doc. Nos. 23, 33), and Rood has filed replies (Doc. Nos. 25, 34.) For the reasons that follow, the Magistrate Judge will recommend that the Court deny Rood's motions to dismiss.

I. Background

A. The PLRA

Plaintiffs ordinarily must pay $350.00 to file a civil complaint in federal district court, 28 U.S.C. § 1914(a), but 28 U.S.C. § 1915(a)(1) authorizes district courts to waive the filing fee for most individuals who are unable to afford it by granting them IFP status, id. § 1915(a)(1). Congress passed the PLRA, in part, because it was concerned that incarcerated plaintiffs proceeding IFP were burdening the federal courts with frivolous lawsuits challenging prison conditions. See, e.g., Blair-Bey v. Quick, 151 F.3d 1036, 1040 (D.C. Cir. 1998) (“The PLRA's legislative history makes clear that Congress's principal intent was to reduce frivolous litigation by prisoners challenging conditions of their confinement.”); Washington v. L.A. Cnty. Sheriff's Dep't, 833 F.3d 1048, 1054 (9th Cir. 2016) (“[T]he [PLRA]'s supporters indicated that it was meant to curb the volume of non-meritorious, and often frivolous, civil-rights lawsuits brought challenging prison conditions.”). As one means of reducing the number of such lawsuits, the PLRA amended the IFP statutes for incarcerated plaintiffs. See Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997) (“Congress sought to put in place economic incentives that would prompt prisoners to ‘stop and think' before filing a complaint.”); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc) (“In enacting the PLRA, Congress concluded that the large number of meritless prisoner claims was caused by the fact that prisoners easily obtained I.F.P. status and hence were not subject to the same economic disincentives to filing meritless cases that face other civil litigants.”). As amended, the statutes now provide that a grant of IFP status to an incarcerated plaintiff does not waive the filing fee as it does for plaintiffs who are not in custody. 28 U.S.C. § 1915(a), (b). Instead, an incarcerated plaintiff granted IFP status may file a lawsuit without paying the filing fee, but must pay the filing fee in installments as funds become available in his prison trust account. Id. § 1915(b).

The PLRA further restricts incarcerated plaintiffs' ability to proceed IFP by implementing a three-strikes rule. See Wilson v. Yaklich, 148 F.3d 596, 602-603 (6th Cir. 1998). The rule, which is codified at 28 U.S.C. § 1915(g), provides that:

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.

28 U.S.C. § 1915(g).

Another provision of the PLRA requires incarcerated plaintiffs to exhaust available administrative remedies at their corrections institutions before filing actions challenging the conditions of their confinement. 42 U.S.C. § 1997e(a). The PLRA also requires courts to screen incarcerated plaintiffs' complaints before they are served on named defendants and dismiss them sua sponte if they are “frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted[.]” 28 U.S.C. § 1915A(b)(1); see also 42 U.S.C. § 1997e(c)(1).

B. Factual and Procedural History

Bailey initiated this action by filing a form complaint alleging violations of 42 U.S.C. § 1983 (Doc. No. 1) and an application to proceed IFP under 28 U.S.C. § 1915(a) (Doc. No. 2). The Court granted Bailey's IFP application and screened his complaint as required by the IFP statutes, 28 U.S.C. § 1915(e)(2)(B), and the PLRA, Id. § 1915A; 42 U.S.C. § 1997e(c)(1). (Doc. Nos. 5, 6.) The Court found that Bailey stated a colorable Eighth Amendment claim against Rood in her individual capacity and dismissed all other claims and defendants for failure to state claims on which relief may be granted. (Doc. Nos. 5, 6.)

Rood appeared (Doc. No. 16) and moved to dismiss Bailey's complaint under the three-strikes rule (Doc. No. 17). Bailey responded in opposition (Doc. No. 23) and filed an amended complaint (Doc. No. 22). Rood filed a reply (Doc. No. 25) and filed a second motion to dismiss Bailey's amended complaint under the three-strikes rule, repeating her arguments from the first motion (Doc. Nos. 27, 28). Bailey responded in opposition to Rood's second motion to dismiss (Doc. No. 33), and Rood filed another reply (Doc. No. 34).

Rood argues that the three-strikes rule prohibits Bailey from proceeding IFP in this action because Bailey has filed at least four prior lawsuits in federal courts while incarcerated that were dismissed for failure to state a claim on which relief may be granted. (Doc. Nos. 18, 28.) The four dismissals Rood identifies as strikes are: (1) Bailey v. Shelby County, No. 2:03-cv-02242 (W.D. Tenn. Aug. 12, 2003); (2) Bailey v. Tennessee, No. 3:18-cv-00041 (E.D. Tenn. Feb. 12, 2018); (3) Bailey v. Holloway, No. 3:19-cv-00319 (E.D. Tenn. Jan. 7, 2020); and (4) Bailey v. Decker, No. 1:19-cv-01197 (W.D. Tenn. May 14, 2020). (Doc. Nos. 18, 28.) Rood also argues that the imminent physical danger exception to § 1915(g) does not apply to Bailey's claims in this case. (Doc. Nos. 18, 28.) She asks the Court to dismiss this action or, in the alternative, to require Bailey to pay the full filing fee within thirty days. (Doc. Nos. 18, 28.)

Bailey argues that only two of the four dismissals Rood identifies count as strikes under § 1915(g) and that the three-strikes rule therefore does not bar him from proceeding IFP in this case. (Doc. Nos. 23, 33.) He concedes that Bailey v. Holloway and Bailey v. Decker were dismissed for failure to state claims on which relief may be granted and count as strikes under § 1915(g). (Doc. Nos. 23, 33.) Bailey argues that Bailey v. Shelby County does not count as a strike because it was dismissed without prejudice for failure to allege exhaustion of administrative remedies under the PLRA. (Doc. Nos. 23, 33.) Bailey argues that the dismissal for failure to state a claim in Bailey v. Tennessee also does not count as a strike because that case was an action for a writ of mandamus regarding Bailey's state-court criminal proceedings and not a civil action for purposes of § 1915(g). (Doc. Nos. 23, 33.) Bailey further argues that, even if he does have three strikes, he can satisfy the imminent physical danger exception to the three-strikes rule. (Doc. Nos. 23, 33.)

Rood replies that the three-strikes rule applies because Bailey has effectively conceded that he has three prior lawsuits that were dismissed for failure to state a claim. (Doc. Nos. 25, 34.) She argues that the Bailey v. Shelby County dismissal without prejudice for failure to exhaust administrative remedies should count as a strike because Bailey never proved the merit of the claims he made in that action and that the Bailey v. Tennessee dismissal for failure to state a claim should count as a strike because mandamus is a civil remedy. (Doc. Nos. 25, 34.) She further argues that Bailey cannot satisfy the imminent danger exception. (Doc. Nos. 25, 34.)

II. Analysis

Bailey filed his amended complaint (Doc. No. 22) as a matter of course within twenty-one days of being served with Rood's first motion to dismiss (Doc. No. 17). Fed.R.Civ.P. 15(a)(1)(B). An amended complaint generally supersedes the original complaint and renders a motion to dismiss the original complaint moot. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 206 (6th Cir. 2000). Klein by Klein v. Caterpillar Inc., 581 F.Supp.3d 912, 919 (E.D. Mich. 2022). As noted above, the parties' filings related to both motions are substantially identical. The Court will therefore recommend that Rood's initial motion to dismiss (Doc. No. 17) be found moot and will address the arguments made in Rood's motion to dismiss Bailey's amended complaint (Doc. No. 27) in this Report and Recommendation.

A. Bailey's Strikes

The party challenging an incarcerated plaintiff's IFP status under the three-strikes rule bears the initial burden to produce evidence showing that the plaintiff has at least three qualifying dismissals of prior actions. Andrews v King, 398 F.3d 1113, 1119-20 (...