Hughes v. Parker et al
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING FILING FEE IN ACCORDANCE WITH PLRA, DIRECTING CLERK TO ADD DEFENDANTS TO THE DOCKET AND TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a). Signed by Judge James D. Todd on 2/1/17. (Todd, James) [Transferred from Tennessee Western on 2/3/2017.]
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
TONY PARKER, ET AL.,
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS,
ASSESSING FILING FEE IN ACCORDANCE WITH PLRA,
DIRECTING CLERK TO ADD DEFENDANTS TO THE DOCKET
AND TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a)
On January 31, 2017, Plaintiff Cordaro Hughes, Tennessee Department of Correction
prisoner number 416857, who is incarcerated at the West Tennessee State Penitentiary
(“WTSP”) in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and
a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), a
prisoner bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914(a).1
Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. However, pursuant to
§ 1914(b), “[t]he clerk shall collect from the parties such additional fees . . . as are prescribed by
the Judicial Conference of the United States.” The Judicial Conference has prescribed an
additional administrative fee of $50 for filing any civil case, except for cases in which the
plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. As the Court is
granting leave to proceed in forma pauperis in this case pursuant to the terms of the PLRA,
Plaintiff is not liable for the additional $50 fee.
Although the obligation to pay the fee accrues at the moment the case is filed, see McGore
v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997), partially overruled on other grounds
by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013), the PLRA provides the prisoner
the opportunity to make a “down payment” of a partial filing fee and pay the remainder in
installments. Id. at 604. In this case, Plaintiff has properly submitted an in forma pauperis
affidavit and an inmate trust account statement, as required by 28 U.S.C. § 1915(a)(2). The
motion to proceed in forma pauperis is GRANTED in accordance with the terms of the
Pursuant to 28 U.S.C. § 1915(b)(1), it is ORDERED that Plaintiff cooperate fully with
prison officials in carrying out this order. It is further ORDERED that the trust account
officer at Plaintiff’s prison shall calculate a partial initial filing fee equal to twenty percent
(20%) of the greater of the average balance in or deposits to Plaintiff’s trust fund account for
the six months immediately preceding the completion of the affidavit. When the account
contains any funds, the trust account officer shall collect them and pay them directly to the
Clerk of the Court. If the funds in Plaintiff’s account are insufficient to pay the full amount
of the initial partial filing fee, the trust account officer is instructed to withdraw all of the
funds in the Plaintiff’s account and forward them to the Clerk of the Court.
On each occasion that funds are subsequently credited to Plaintiff’s account the trust
account officer shall immediately withdraw those funds and forward them to the Clerk of
Court, until the initial filing fee is paid in full.
It is further ORDERED that after the initial partial filing fee is fully paid, the trust
account officer shall withdraw from Plaintiff’s account and pay to the Clerk of this Court
monthly payments equal to twenty percent (20%) of all deposits credited to Plaintiff’s
account during the preceding month, but only when the amount in the account exceeds $10,
until the $350 filing fee is paid.
Each time the trust account officer makes a payment to the Court as required by this
order, he shall print a copy of the prisoner’s account statement showing all activity in the
account since the last payment under this order and submit it to the Clerk along with the
payment. All payments and accounts statements shall be sent to:
Clerk, United States District Court, Western District of Tennessee
167 N. Main St., Rm. 242, Memphis, TN 38103
and shall clearly identify Plaintiff’s name and the case number as included on the first page
of this order.
If Plaintiff is transferred to a different prison or released, he is ORDERED to notify
the Court in which the case is pending of his change of address. If still confined, he shall
provide the officials at the new facility with a copy of this order. If Plaintiff fails to abide
by these or any other requirements of this order, appropriate sanctions may be imposed, up
to and including dismissal of this action, without any additional notice or hearing.
The Clerk shall mail a copy of this order to the prison official in charge of prison trust
fund accounts at the Plaintiff’s prison. The Clerk is further ORDERED to forward a copy
of this order to the Warden of the WTSP to ensure that the custodian of Plaintiff’s inmate
trust account complies with that portion of the PLRA pertaining to the payment of filing fees.
Plaintiff’s complaint concerns events that occurred during his previous incarceration
at the Turney Center Industrial Complex (“TCIX”) in Only, Tennessee. He has sued TDOC
Commissioner Tony Parker; TCIX Warden Kevin Genovese; Assistant Warden Jeff Butler;
and Sergeant Epley, a Disciplinary Board official.2 He alleges that his due process rights
were violated during certain disciplinary proceedings.
Twenty-eight U.S.C. § 1391(b) authorizes the commencement of a civil action only
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred . . . ; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any judicial district in which any defendant is subject
to the court’s personal jurisdiction with respect to such action.
Except for the fact that Plaintiff is now incarcerated here, this case has no connection with
this district. The allegedly unlawful acts occurred at the TCIX, which is in Hickman County.
Hickman County is part of the Columbia Division of the Middle District of Tennessee. 28
U.S.C. § 123(b)(3).
Defendants Butler and Epley, while not listed in the case caption of the complaint, are
named later on a separate page. (ECF No. 1 at 7.) The Clerk is DIRECTED to add Defendants
Butler and Eply to the docket.
Twenty-eight U.S.C. § 1406(a) states that “[t]he district court of a district in which
is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in which it could have been
brought.” This action should have been brought in the Middle District of Tennessee.
Therefore, the case is hereby TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the
Columbia Division of the United States District Court for the Middle District of Tennessee.
The Clerk is directed to close this case without entry of judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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