Dulworth v. Lindamood

Filing 4

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING FILING FEE IN ACCORDANCE WITH PLRA AND TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a). Signed by Judge James D. Todd on 5/24/18. (mbm)[Transferred from Tennessee Western on 5/24/2018.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMMY LYDELL DULWORTH,
Plaintiff,
VS.
CHERRY LINDAMOOD,
Defendant.

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No. 18-1091-JDT-cgc

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS,
ASSESSING FILING FEE IN ACCORDANCE WITH PLRA AND
TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a)

On May 23, 2018, Plaintiff Timmy Lydell Dulworth, Tennessee Department of
Correction prisoner number 117194, who is presently incarcerated at the South Central
Correctional Facility (SCCF) in Clifton, 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 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

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The civil filing fee is $350. See 28 U.S.C. § 1914(a). The Schedule of Fees set out
following the statute also requires the Clerk to collect an administrative fee of $50 for filing any
civil case. However, the additional $50 fee does not apply if a plaintiff is granted leave to
proceed in forma pauperis.

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 a certification of his inmate trust account, 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 PLRA.
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 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 partial 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
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account during the preceding month, but only when the amount in the account exceeds $10,
until the $350 filing fee is paid. All payments shall be sent to:
Clerk, United States District Court, Western District of Tennessee
111 S. Highland Ave., Rm. 262, Jackson, TN 38301
and shall clearly identify Plaintiff’s name and the case number as included on the first page
of this order.
The Clerk shall mail a copy of this order to the prison official in charge of prison trust
accounts at the Plaintiff’s prison. The Clerk is further ORDERED to forward a copy of this
order to the Warden of the SCCF 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.
Twenty-eight U.S.C. § 1391(b) authorizes the commencement of a civil action only
in:
(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.
In this case, Plaintiff’s complaint concerns events that occurred at the SCCF, and he sues
SCCF Warden Cherry Lindamood. The case does not have any connection with this district.
The allegedly unlawful acts are occurring at the SCCF in Clifton, Tennessee, which is in

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Wayne County. Wayne County is part of the Columbia Division of the Middle District of
Tennessee. 28 U.S.C. § 123(b)(3).
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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