Prescott v. Hardeman County Correctional Facility

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION DONALD PRESCOTT, ) ) Plaintiff, ) ) VS. ) No. 19-1115-JDT-cgc ) HARDEMAN COUNTY CORRECTIONAL ) FACILITY, ET AL., ) ) Defendants. ) _ _______________________________________________________________________ ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. §§ 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING FEE _______________________________________________________________________ On June 5, 2019, Plaintiff Donald Prescott, Tennessee Department of Correction prisoner number 509402, who is incarcerated at the Northeast Correctional Complex in Mountain City, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) However, Plaintiff neglected to submit either the $400 civil filing fee required by 28 U.S.C. §§ 1914(a)-(b) or a motion to proceed in forma pauperis.

Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914(a).1 Although the obligation to pay the fee accrues at the moment the case is filed, see McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997), partially overruled on other The civil filing fee is $350. See 28 U.S.C. § 1914(a). The Schedule of Fees set out following the statute also requires the Clerk to collect an administrative fee of $50 for filing any civil case. However, the additional $50 fee will not apply if Plaintiff ultimately is granted leave to proceed in forma pauperis. grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013), the PLRA provides the prisoner the opportunity to make a “down payment” of a partial filing fee and pay the remainder in installments. Id. at 604. However, in order to take advantage of the installment procedures, the prisoner must complete and submit to the district court, along with the complaint, an in forma pauperis affidavit and a certified copy of his inmate trust account statement for the last six months. 28 U.S.C. § 1915(a)(2). In this case, although Plaintiff submitted an affidavit of indigency and certified copy of his trust account statement (ECF No. 2), he did not submit a motion to proceed in forma pauperis.

Therefore, the Plaintiff is ORDERED to submit, within 30 days after the date of this order, either the entire $400 civil filing fee or a properly completed and executed motion to proceed in forma pauperis.2 The Clerk is directed to mail Plaintiff a copy of the prisoner in forma pauperis affidavit form along with this order. If Plaintiff needs additional time to submit the necessary documents, he may, within 30 days after the date of this order, file a motion for extension of time.

If Plaintiff timely submits the necessary documents and the Court finds that he is indeed indigent, the Court will grant leave to proceed in forma pauperis and assess only a $350 filing fee in accordance with the installment procedure of 28 U.S.C. § 1915(b).

However, if plaintiff fails to comply with this order in a timely manner, the Court will deny leave to proceed in forma pauperis, assess the entire $400 filing fee from his inmate trust account without regard to the installment payment procedures, and dismiss the Plaintiff does not need to submit another copy of his trust account statement. action without further notice for failure to prosecute pursuant to Federal Rules of Civil Procedure 41(b). McGore, 114 F.3rd at 605.3 If Plaintiff is transferred to a different prison or released, he is ORDERED to notify the Court immediately, in writing, of his change of address. Failure to abide by this requirement may likewise result in the dismissal of this case without further notice, for failure to prosecute.

IT IS SO ORDERED s/James D.Todd __________________________ JAMES D. TODD UNITED STATES DISTRICT JUDGE

3Even a voluntary dismissal by Plaintiff will not eliminate the obligation to pay the filing fee.

McGore, 114 F.3d at 607; see also In re Alea, 286 F3d. 378, 381 (6th Cir. 2002).