Parker v. United States of America

Filing 7

ORDER DISMISSIMG Case Without Prejudice re 1 Complaint - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Earnest Parker-Bey,
Plaintiff,

Case No. 15-cv-10694
Hon. Judith E. Levy
Mag. Judge R. Steven Whalen

v.
United States of America,
Defendant.
________________________________/

ORDER DISMISSING CASE WITHOUT PREJUDICE
Plaintiff Earnest Parker-Bey is an inmate at the Federal
Correctional Institution in Milan, Michigan.

He brings this action

against defendant United States of America, alleging negligent
destruction of records pertaining to him.

On February 25, 2015,

Magistrate Judge R. Steven Whalen signed an order of deficiency,
requiring plaintiff either to submit the $400 filing fee or to provide (1) a
prisoner’s application to proceed without prepayment of fees and costs
and authorization to withdraw from trust fund account, (2) a current
certification or business manager’s account statement, and (3) a
statement of plaintiff’s trust fund account for the six-month period
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immediately preceding the filing of his complaint. (Dkt. 2.) Plaintiff
was given thirty days to comply with the order. (Id.)
On February 25, 2015, and again on March 9, 2015, plaintiff filed
an Application to Proceed in District Court Without Prepayment of Fees
or Costs. (Dkt. 4, 6.) Plaintiff, however, has failed to provide this Court
with a written authorization to withdraw funds from his prison trust
fund account.

Plaintiff has also failed to provide the Court with a

certified trust account statement.
A prisoner who wishes to bring a civil action in federal court
without prepayment of fees and costs must file a “certified copy of [his
or her] trust fund account statement . . . for the 6-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.” 28 U.S.C. § 1915(a)(2).
“If an inmate . . . fails to provide an affidavit of indigency or trust
account statement, the district 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 to pay the full filing fee.”
McGore v. Wrigglesworth, 114 F. 3d 601, 605 (6th Cir. 1997), overruled
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on other grounds by Jones v. Bock, 549 U.S. 199 (2007). If the inmate
fails to correct the error or pay the filing fee, “the district court must
presume that the prisoner is not a pauper and assess the inmate the
full amount of fees.” Id. The case must then be dismissed for want of
prosecution. Id.
Plaintiff’s application to proceed without prepayment of fees and
costs is deficient because he failed to file an 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,
114 F. 3d at 605.
Plaintiff has also failed to provide the Court with a signed
certification regarding his trust fund account. An uncertified trust fund
account statement, or one that lacks a signature, is insufficient to
satisfy the filing requirements under § 1915(a)(2). See Hart v. Jaukins,
99 F. App’x 208, 209-10 (10th Cir. 2004); Moore v. Vantifflin, No. 0815168, 2009 WL 224548, at * 1 (E.D. Mich. Jan. 30, 2009).

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Because plaintiff has failed to comply with the deficiency order,
the Court will dismiss the complaint without prejudice for want of
prosecution. See Erby v. Kula, 113 F. App’x 74, 75-76 (6th Cir. 2004).
Accordingly,

plaintiff’s

complaint

is

DISMISSED

without

prejudice to plaintiff re-filing a complaint either with the $ 400.00 filing
fee or with the correct documentation to proceed without prepayment of
fees.
IT IS SO ORDERED.
Dated: April 28, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 28, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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