Simmons v. Rivard et al

Filing 8

ORDERDENYING PLAINTIFF'S REQUEST FOR RECONSIDERATION 6 Request filed by Denzel A. Simmons Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENZEL SIMMONS,
Plaintiff,
Case No.16-11142
v.
HON. AVERN COHN
STEVEN RIVARD, et. al.,
Defendants.
___________________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION (Doc. 6)
I.
This is a pro se prisoner civil rights action under 42 U.S.C. § 1983. At the time
he filed his complaint, the plaintiff did not pay the required $350.00 filing fee, nor did he
submit a proper application to proceed without prepayment of the filing fee. As will be
explained, the Court dismissed the case without prejudice because plaintiff failed to pay
the fee or submit a proper application to proceed without prepayment of the filing fee.
Before the Court is plaintiff’s motion for reconsideration of the dismissal. For the
reasons that follow, the motion is DENIED WITHOUT PREJUDICE. Should plaintiff
wish to pursue this case, he may file a new complaint under a new case number with a
proper application to proceed without prepayment of the filing fee.
II.
Shortly after plaintiff filed the complaint, the Court entered an order of deficiency,
which required Plaintiff to provide a prisoner’s application to proceed without
prepayment of fees and costs and authorization to withdraw from trust fund account, a
1

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. Alternatively, the
order allowed Plaintiff to pay the filing fee in full. Plaintiff was given thirty days to comply
with the order. (Doc. 2).
On April 18, 2016, Plaintiff filed an affidavit stating that he was unable to pay the
filing fee and service costs. Plaintiff also filed a current computerized trust fund
statement of account showing the history of the financial transactions in his institutional
trust fund account for the past six months. (Doc. 4).
Plaintiff, however, failed to file a copy of the Application to Proceed in District
Court Without Prepayment of Fees or Costs. Plaintiff also did not provide a written
authorization to withdraw funds from his prison trust fund account. Plaintiff also failed to
provide a trust account statement that was certified by the appropriate prison official at
his place of incarceration. Because plaintiff has failed to correct the filing deficiencies
within the allotted time for doing so, the Court dismissed the complaint without
prejudice. (Doc. 5).
Plaintiff then filed the instant motion for reconsideration. Attached to the motion
for reconsideration, plaintiff filed an Application to Proceed Without Prepayment of Fees
or Costs, which contained a written authorization to withdraw funds from his prison trust
fund account as well as a certified trust account statement.
II.
If an prisoner, like plaintiff, who does not pay the full filing fee fails to provide an
affidavit of indigency or a certified trust account statement, the district court must notify
2

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 to pay the full filing fee. McGore v.
Wrigglesworth, 114 F. 3d at 605. If the case is dismissed under these circumstances, it
is not to be reinstated to the district court's active docket despite the subsequent
payment of filing fees. Id.; See also In re Prison Litig. Reform Act, 105 F. 3d 1131, 1132
(6th Cir. 1997).
Here, because plaintiff did not timely cure his filing fee defects in this case, the
Court is unable to reinstate his complaint. However, if plaintiff wishes to pursue this
matter, he can do so by filing a new complaint with the appropriate documentation to
proceed without prepayment of the filing fee.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: September 12, 2016
Detroit, Michigan

3