UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

DONNIE WAYNE MORGAN II, ) ) Plaintiff, ) ) v. ) No. 2:23-CV-110-KAC-CRW ) SULLIVAN COUNTY CORRECTIONAL ) FACILITY, SHERIFF JEFF CASSIDY, ) CAPTAIN DILLARD, and SULLIVAN ) COUNTY SHERIFF’S OFFICE, ) ) Defendants. )

MEMORANDUM AND ORDER Plaintiff, a prisoner of the Sullivan County Jail, filed (1) a pro se Complaint for violation of 42 U.S.C. 1983 arising out of his housing assignments during his incarceration [Doc. 1], (2) an unsigned supplement to the Complaint [Doc. 4], and (3) a motion for leave to proceed in forma pauperis [Doc. 5]. Shortly thereafter, Plaintiff filed a motion asking the Court to dismiss this action [Doc. 6] and requesting that the Court not assess him with the filing fee [id. at 1]. For the reasons set forth below, the Court GRANTS Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 5]. And the Court GRANTS Plaintiff’s motion to dismiss [Doc. 6] in part— dismissing this action but assessing the filing fee, as required by law. I. FILING FEE In his motion to dismiss [Doc. 6], Plaintiff asks the Court to “drop[]” this lawsuit in part because “[he] can’t afford to pay a filing fee” [See Doc. 6 at 1]. However, the Sixth Circuit has held that “[s]ection 1915(b)(1) compels the payment of the respective fees at the moment the complaint . . . is filed.” McGore v. Wrigglesworth,

(6th Cir. 1997) (citations omitted), overruled on other grounds by Jones v. Bock,

(2007). “[S]ubsequent dismissal of the case does not negate this financial responsibility.” See

Thus, the Court DENIES Plaintiff’s motion to dismiss this action [Doc. 6] in part to the extent that it asks the Court not to assess the filing fee that is required by law. However, it appears from Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 5] that he cannot afford to pay the filing fee in a lump sum. Accordingly, the Court GRANTS Plaintiff’s motion for leave to proceed in forma

pauperis [Doc. 5]. Plaintiff is ASSESSED the civil filing fee of three hundred fifty dollars ($350.00). The Court DIRECTS the custodian of Plaintiff’s inmate trust account to submit to the Clerk, U.S. District Court, 220 West Depot Street, Suite 200, Greeneville, Tennessee 37743, as an initial partial payment, whichever is the greater of: (a) twenty percent (20%) of the average monthly deposits to Plaintiff’s inmate trust account; or (b) twenty percent (20%) of the average monthly balance in his inmate trust account for the six-month period preceding the filing of the complaint.

(b)(1)(A) and (B). Thereafter, the custodian of Plaintiff’s inmate trust account shall submit twenty percent (20%) of Plaintiff’s preceding monthly income (or income credited to

Plaintiff’s trust account for the preceding month), but only when such monthly income exceeds ten dollars ($10.00), until the full $350.00 filing fee as authorized under

(a) has been paid to the Clerk.

(b)(2). To ensure compliance with this fee-collection procedure, the Court DIRECTS the Clerk to provide a copy of this Memorandum and Order to the custodian of inmate accounts at the institution where Plaintiff is now confined and the Court’s financial deputy. This order shall be placed in Plaintiff’s prison file and follow him if he is transferred to another correctional institution. II. REQUEST TO DISMISS ACTION In his motion to dismiss, Plaintiff requests that this lawsuit be “dropped” because he does not “want to continue this law suit [sic] at all” [Doc. 6 at 1]. Under Federal Rule of Civil Procedure 41(a)(2), the Court may dismiss an action “on terms that the court considers proper.” See Fed. R. Civ. P. 41(a)(2). Here, no defendant has been served. Hence no defendant would be

prejudiced by dismissal of the action. And Plaintiff has made clear that he does not wish to proceed with this action. Accordingly, the Court GRANTS Plaintiff’s request to terminate this action and dismisses this action. See Fed. R. Civ. P. 41(a)(2). III. CONCLUSION

For the reasons set forth above, the Court GRANTS Plaintiff’s motion for leave to proceed in forma pauperis [Doc. 5]. And the Court GRANTS Plaintiff’s motion to dismiss [Doc. 6] in part—dismissing this action but assessing the filing fee, as required by law. Further, the Court CERTIFIES that any appeal from the dismissal of this action would not be taken in good faith and would be totally frivolous. See Fed. R. App. P. 24. Accordingly, should Plaintiff file a notice of appeal, he is DENIED leave to appeal in forma pauperis. See

(a)(3); Fed. R. App. P. 24. SO ORDERED. AN APPROPRIATE JUDGMENT SHALL ENTER.

ENTER: s/ Katherine A. Crytzer KATHERINE A. CRYTZER United States District Judge