Blair v. Thompson et al

Filing 22

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 2/7/2017 re motion titled "Objection to Accessive Filing Fee to Envoke, Advocate and Defend United States Constitutional Guarantees" (DN 19 ) and motion titled "O bjection to Bias Dismissal of Action by this District Court and Motion to Reopen Case" (DN 20 ). For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff's motions (DNs 19 & 20 ) are DENIED. Clerk of Court DIRECTED to send Plaintiff a copy of the Pro Se Prisoner Handbook. cc: Plaintiff, pro se; Defendants; General Counsel, J&PSC (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH

JAMES BLAIR, JR.

PLAINTIFF

v.

CIVIL ACTION NO. 5:16-CV-P35-TBR

LADONNA L. THOMPSON et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon two related motions filed by pro se Plaintiff James
Blair, Jr. The first motion is titled “Objection to Accessive Filing Fee to Envoke, Advocate and
Defend United States Constitutional Guarantees” (DN 19). The second motion is titled
“Objection to Bias Dismissal of Action by this District Court and Motion to Reopen Case”
(DN 20). For the following reasons, these motions will be denied.
I. PROCEDURAL HISTORY
On March 14, 2016, Plaintiff initiated this action by filing a document titled “Motion for
Issuance of Warrant of Seizure of Plaintiff’s Personal Properties” (DN 1). On March 15, 2016,
the Clerk of Court sent Plaintiff a Notice of Deficiency advising Plaintiff to submit his
complaint, summonses, and motion for leave to proceed in forma pauperis on the appropriate
Court-supplied forms within 30 days (DN 5). Because Plaintiff did not timely cure these
deficiencies, on August 2, 2016, the Court entered an Order directing Plaintiff to file his
complaint on a Court-supplied 42 U.S.C. § 1983 form, and to submit a completed summons for
each named Defendant (DN 7). In this Order, the Court warned Plaintiff that his failure to
comply could result in the dismissal of his action for failure to prosecute and for failure to
comply with an Order of this Court. On August 31, 2016, Plaintiff filed a motion for an
extension of time to comply with the Court’s Order (DN 8), and the Court granted such. On

September 9, 2016, Plaintiff filed a 26-page complaint and a motion for leave to proceed in
forma pauperis on the appropriate Court-supplied forms (DNs 9 & 10). On September 14, 2016,
the Court granted Plaintiff leave to proceed in forma pauperis (DN 12). On September 22, 2016,
Plaintiff filed a letter which the Court construed as an amended complaint (DN 13). On January
13, 2017, the Court conducted its initial screening of Plaintiff’s complaint and amended
complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007) (DN 17). On this
same date, the Court entered an Order dismissing Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915A(b)(1) for failure to state a claim upon which relief may be granted and pursuant to
28 U.S.C. § 1915A(b)(2) for seeking monetary relief from a defendant who is immune from such
relief (DN 18). This Order stated that it was a “final Order.”
II. SUMMARY OF MOTIONS

In Plaintiff’s first motion, Plaintiff argues that the Court’s Order granting him “pauper
status” but requiring him to pay an initial partial filing fee and the remainder of the $350 filing
fee in monthly installments (DN 12) should be vacated because the statute requiring such, 28
U.S.C. § 1915, is unconstitutional. Plaintiff seemingly understands the Court’s Order to require
him to pay a monthly payment of $10.00 per month regardless of how much money Plaintiff has
in his prison trust account. Based on this understanding, he writes: “So, the unsaid is: If the
financially-oppressed state prisoner can not pay, his civil rights violations will be rejected by the
court, absent sending the pauperis imprisoned plaintiff into extreme debt to the state
government.” Plaintiff concludes his motion as follows:
As an alternative to this court of law’s willingness or inability to waive any
further cost . . . this pauperis plaintiff . . . asks this district court to dismiss this
civil action and of course rescind it’s Order for “installment payments” from the
imprisoned plaintiff’s prison account by the prison administration.
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In Plaintiff’s second motion, Plaintiff states that he objects “to the bias dismissal of this
civil action by the Court after ordering the pro se plaintiff to submit the civil complaint, then
accessing a filing fee of [$350.00] . . . without first giving the pro se plaintiff the fair opportunity
to an act of amendment of the complaint to comply with the rules of the court.” Plaintiff then
emphasizes that he “filed his civil complaint only at the direction of this court.” Plaintiff
attaches, as exhibit to his motion, the Court’s August 2, 2016, Order directing Plaintiff to file his
complaint on a Court-supplied 42 U.S.C. § 1983 form, and to submit a completed summons for
each named Defendant (DN 7). Plaintiff claims that the Court engaged in “scheming” and
“trickery” by first “ordering” him to file a civil complaint and then assessing a filing fee.
Plaintiff also claims that he was not given an opportunity to file an amended complaint. Plaintiff
concludes his motion by stating that “he seeks an appellate Court’s review of this district court’s
methods, acts, and rulings.”
III. ANALYSIS
The Court first notes Plaintiff’s first motion seems to be based upon a misunderstanding
of the Court’s Order which granted him leave to proceed in forma pauperis, but assessed an
initial filing fee of $5.96 and also required him to pay the remainder of the $350.00 filing fee in
monthly installments. This Order does not require Plaintiff to pay $10.00 per month until the
entire filing fee is paid; rather, it requires the prison to collect the balance of the filing fee by
“collecting monthly payments from the prison trust account in an amount equal to twenty percent
(20%) of the preceding month’s income credited to the prisoner’s trust account and forwarding
payments to the Clerk of the Court each time the amount in the account exceeds $10.00 in
accordance with 28 U.S.C. § 1915(b)(2).” (emphasis added).

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Several circuits, including the Sixth Circuit, have held that requiring prisoners to pay a
filing fee does not violate prisoners’ constitutional rights by denying them effective access to the
courts. See, e.g., Hampton v. Hobbs, 106 F.3d 1281, 1284-86 (6th Cir. 1997); see also Tucker v.
Branker, 142 F.3d 1294 (D.C. Cir. 1998); Lucien v. DeTella,141 F.3d 773 (7th Cir. 1998);
Shabazz v. Parsons, 127 F.3d 1246, 1248-49 (10th Cir. 1997); Norton v. Dimazana, 122 F.3d
286, 289-91 (5th Cir. 1997); Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir. 1997); Roller v.
Gunn, 107 F.3d 227, 231-33 (4th Cir. 1997). In Hampton, the Sixth Circuit specifically
explained why the fee section of the Prison Litigation Reform Act (PLRA) is constitutional:
The Act requires a court to collect the initial fee only when “funds exist.”
Therefore, a prisoner without funds will not be denied access to a federal court
based on his poverty. Congress made this point explicit in subsection (b)(4) of
the statute, which provides that “in no event shall a prisoner be prohibited from
bringing a civil action or appealing a civil or criminal judgment for the reason that
the prisoner has no assets and no means by which to pay the initial partial filing
fee.” 28 U.S.C. § 1915(b)(4). Moreover, once the initial filing fee is paid, the
payments are slight. The Act requires a prisoner to pay the monthly charge of 20
percent of his preceding month’s income only if the account exceeds ten dollars
($10). If the prisoner has less than ten dollars ($10) in his account, no payment is
required for that month. 28 U.S.C.A. § 1915(b)(2). Furthermore, if a prisoner is
successful in his suit, the Act allows judgment to be rendered for costs, which
could return any funds remitted to the court by the prisoner and absolve him of
any future payments.
106 F.3d. at 1284-1285 (emphasis added). The Hampton court then adopted the following
reasoning of the Fourth Circuit:
There is nothing unreasonable in requiring [a prisoner], as well as any other
plaintiff, to make some contribution, however minimal, to ask him . . . “to some
small degree to ‘put his money where his mouth is,’ it being all too easy (for him)
to file suits, even with sufficient pro forma allegations, if it costs nothing
whatever to do so.” Such a requirement imposed to “curb the indiscriminate
filing of (meritless) prisoner civil rights actions” is simply forcing the prisoner “to
‘confront the initial dilemma which faces most other potential civil litigants: is the
merit of the claim worth the cost of pursuing it?’”

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Id. at 1285-1286 (quoting Evans v. Croom, 650 F.2d 521, 524 (4th Cir. 1981) (footnote
and citations omitted).
Plaintiff’s contention that the Court “schemed” against Plaintiff by ordering him to file
his complaint on a Court-supplied form, assessing a filing fee against Plaintiff, and then
dismissing his complaint without allowing him “an act of amendment” is also without merit.
Under the PLRA, the obligation to pay the filing fee attaches when a prisoner “brings a civil
action.” 28 U.S.C. § 1915(b)(1). Thus, Plaintiff incurred his financial obligation to the Court
when he initiated this action by filing the document titled “Motion for Issuance of Warrant of
Seizure of Plaintiff’s Personal Properties.” In addition, the Court notes that Plaintiff filed a letter
after he filed his complaint on the Court-supplied form which the Court construed as an amended
complaint (DN 13). Thus, upon conducting its initial review pursuant to 28 U.S.C. § 1915A, the
Court screened both Plaintiff’s complaint and amended complaint.
Moreover, there is no provision in the PLRA for the return of the filing fee or for
cancellation of any unpaid portion of the fee. Indeed, the Sixth Circuit has held that “the
obligation to pay the full filing fee under § 1915(b) arises at the time a civil complaint is filed
and that the subsequent dismissal of the action, even if voluntary, does not negate that
obligation.” In re Alea, 286 F.3d 378, 381 (6th Cir. 2002) (citing McGore v. Wrigglesworth, 114
F.3d at 607). This means that Plaintiff’s limited resources and the dismissal of this action do not
relieve Plaintiff of his responsibility to pay the requisite filing fee in this action. See Hatchet v.
Nettles, 201 F.3d 651, 654 (5th Cir. 2000) (“A prisoner proceeding IFP in the district court is
obligated to pay the full filing fee upon the filing of a complaint. No relief from an order
directing payment of the filing fee should be granted for a voluntary dismissal.”) (citation
omitted); McGore v. Wrigglesworth, 114 F.3d at 607 (“Even a voluntary dismissal of a

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complaint or an appeal does not eliminate a prisoner’s obligation to pay the required filing fees.
Section 1915(b)(1) compels the payment of the respective fees at the moment the complaint or
notice of appeal is filed. Any subsequent dismissal of the case does not negate this financial
responsibility.”)
Finally, the Court notes that to extent that Plaintiff seeks to appeal any ruling the Court
has issued in this action, he should follow the instructions set forth in the Pro Se Prisoner
Handbook.
IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motions (DNs 19
& 20) are DENIED.
The Clerk of Court is DIRECTED to send Plaintiff a copy of the Pro Se Prisoner
Handbook.
Date:

February 7, 2017

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.011

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