Dyer v. Harris

Filing 9

ORDER Dismissing Case Without Prejudice. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TIMOTHY M. DYE, #2015003908,
Plaintiff,

Case No. 15-cv-11766

v

Honorable Thomas L. Ludington

WYATT HARRIS,
Defendant.
__________________________________________/
ORDER DISMISSING CASE WITHOUT PREJUDICE
I.
Plaintiff is an inmate confined at the Wayne County Jail in Detroit, Michigan. Plaintiff
filed his complaint on May 15, 2015 (ECF No. 1). On May 22, 2015, Magistrate Judge R.
Steven Whalen signed an order of deficiency, requiring Plaintiff to provide a Prisoner’s
Application to Proceed Without Prepayment of Fees and Costs and Authorization to Withdraw
from the Trust Fund Account, a signed certification of his prison trust account from an
authorized jail official, and a current computerized trust fund account showing the financial
transactions in Plaintiff’s institutional trust fund account for the past six months (ECF No. 4).
Alternatively, the order allowed Plaintiff to pay the four hundred ($ 400.00) dollar filing fee in
full. Id. Plaintiff was given thirty days to comply with the order.1 Id.
The first order was mistakenly mailed to a “Timothy Dyer” and was returned to the Court
as undeliverable (ECF No. 6). A second order of deficiency was resent to plaintiff on July 24,

1

Plaintiff filed an application to proceed without prepaying fees and costs when he filed the complaint but this
application was deficient because it did not contain an authorization to withdraw funds, a signed certification of his
prison trust account from an authorized jail official, and a current computerized trust fund account showing the
history of the financial transactions in plaintiff’s institutional trust fund account for the past six months.

2015 with the correct spelling of plaintiff’s name (ECF No. 7). Plaintiff was given until August
24, 2015 to comply with the order. Id.
On August 12, 2015, Plaintiff filed an Application to Proceed in District Court Without
Prepayment of Fees or Costs along with a computerized trust fund account. (ECF No. 8).
Plaintiff did not provide this Court with a written authorization to withdraw funds from his jail
trust fund account, nor did he provide the Court with a certified trust account statement. Because
Plaintiff has not complied with the deficiency order, ECF No. 7, his complaint will be dismissed
without prejudice for failure to comply with the filing requirements of the Prison Litigation
Reform Act, 28 U.S.C. § 1915(a)(1), (b)(1) and (2).
II.
28 U.S.C. § 1915(a)(2) requires a prisoner who wishes to proceed without prepayment of
fees and costs in a civil complaint in federal court to file a certified copy of the trust fund
account statement for that prisoner for the six month period immediately preceding the filing of
the complaint or notice of appeal, obtained from the appropriate official of each prison at which
the prisoner is or was confined. See also McGore v. Wrigglesworth, 114 F. 3d 601, 605 (6th Cir.
1997). If a prisoner who does not pay the full filing fee does not provide an affidavit of
indigency or a certified trust account statement, the Court must notify the prisoner of the
deficiency, and the prisoner will then have thirty days from the date of the deficiency order to
correct the error or pay the full filing fee. McGore v. Wrigglesworth, 114 F. 3d at 605. If the
inmate fails to comply with the Court’s directions, “[t]he district court must presume that the
prisoner is not a pauper and assess the inmate the full amount of fees.” Id. The Court must then
order that the case be dismissed for want of prosecution. Id.

-2-

Here, Magistrate Judge Whalen gave Plaintiff 30 days to correct his deficiency (ECF No.
7). Plaintiff then filed an application to proceed without prepayment of fees and costs (ECF No.
8). This application is deficient because Plaintiff failed to file the required authorization to
withdraw funds. The moment plaintiff filed his complaint, he became responsible for the filing
fee, and he waived any objection to the withdrawal of funds from his trust fund account to pay
court fees and costs. McGore v. Wrigglesworth, 114 F. 3d at 605. Plaintiff’s application to
proceed without prepayment of fees or costs is thus deficient and subject to dismissal because it
lacks the requisite authorization form. See Lindsey v. Roman, 408 Fed. App’x. 530, 533 (3rd Cir.
2010).
Plaintiff also did not provide the Court with a signed certification regarding the trust fund
account. An uncertified trust fund account statement, or one that lacks a signature, is insufficient
to satisfy the filing requirements for permitting a prisoner to proceed in forma pauperis under §
1915(a)(2), nor would it cure the deficiency in this case. See Hart v. Jaukins, 99 Fed. App’x.
208, 209-10 (10th Cir. 2004); See also Moore v. Vantifflin, No. 2009 WL 224548, * 1 (E.D.
Mich. January 30, 2009).
Plaintiff has not sufficiently corrected the deficiency in this case. Because Plaintiff has
not complied with the deficiency order, ECF No. 7, the Court will dismiss the complaint without
prejudice for want of prosecution. See e.g. Erby v. Kula, 113 Fed. App’x. 74, 75-76 (6th Cir.
2004).

-3-

III.
Accordingly, it is ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED
without prejudice.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 30, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 30, 2015.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

-4-