Hamby et al v. Johnson et al

Filing 21

ORDER: The Clerk will FILE the complaint in forma pauperis as to plaintiffs Hamby, Jr., Braden, and Shannon. However, process shall NOT issue. As to plaintiffs Scruggs, Morris, Merritt, Rippy, and Rivera, this action is DISMISSED for failur e to comply with the orders of the court, and for want of prosecution. Accordingly, each plaintiff (Hamby, Scruggs, Morris, Merritt, Shannon, Braden, Rippy, and Rivera) is herewith assessed his portion of the $350.00 civil filing fee which is $43.75. As provided in the accompanying memorandum, the complaint is DISMISSED for failure to state claims on which relief may be granted. The claims pertaining to the plaintiffs' state court charges, detentions, convictions and/or senten ces are DISMISSED WITHOUT PREJUDICE. The plaintiffs' motion for injunctive relief 14 is DENIED. Entry of this Order shall constitute the judgment in this action. It is so ORDERED. Signed by District Judge Todd J. Campbell on 4/10/13. (xc:Pro se party by regular and certified mail; Sheriff of Davidson County Jail by reg mail)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAM DAVIDSON HAMBY, JR.,
et al.,
Plaintiffs,
v.
VICTOR SAMUEL JOHNSON III, et al.,
Defendants.

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No. 3:13-cv-00096
Judge Campbell

ORDER
The plaintiffs seek to bring a pro se action under 42 U.S.C. § 1983 against prosecutor Victor
Samuel Johnson, III, Nashville District Attorney General Tory Johnson, and unnamed assistant
district attorneys. (Docket No. 1). The plaintiffs are inmates at the Metro-Davidson County
Detention Facility in Nashville, Tennessee. (Id.)
The following plaintiffs have submitted applications to proceed in forma pauperis: William
Davidson Hamby, Jr. (Docket No. 2), Jamal Braden (Docket No. 17), and Byron Shannon (Docket
No. 18). It appears from these plaintiffs’ applications that neither of them can afford to pay the
filing fee. Therefore, the Clerk will FILE the complaint in forma pauperis as to plaintiffs Hamby,
Jr., Braden, and Shannon. 28 U.S.C. §§ 1915(a), (b)(4). However, process shall NOT issue.
In its order of February 11, 2013 (Docket No. 3), the court forewarned the plaintiffs that
failure to comply with the court’s order within the specified time frames would result in this action
being dismissed as to the non-compliant party or parties and each plaintiff’s portion of the filing fee
assessed against him anyway. (Docket No. 3 at p. 2). To date, the following plaintiffs have failed
to submit either their portion of the civil filing fee or applications to proceed in forma pauperis in
compliance with the court’s order of February 11, 2013 (Docket No. 3): Bobby Scruggs, Robert

Morris, Adrian Merritt, Bobby Jo Rippy, and Angel Rivera. Excluding Merritt, these plaintiffs have
returned to the court certified mail receipts indicating that they received a copy of the court’s order.
(Docket Nos. 8, 10, 11, 16). The copy of the court’s order mailed to Merritt was returned as
“undeliverable.” (Docket No. 15). Although plaintiff Rivera was directed by the court (Docket No.
3 at p. 2) to sign and return the complaint within fifteen (15) days of his receipt of the court’s order,
plaintiff Rivera never returned a signed complaint, even though he received the court’s order on
February 19, 2013 (Docket No. 10).
None of these plaintiffs ever requested an extension of time to comply with the court’s order.
Therefore, as to plaintiffs Scruggs, Morris, Merritt, Rippy, and Rivera, this action is DISMISSED
for failure to comply with the orders of the court, and for want of prosecution. Rule 41(b), Fed. R.
Civ. P.; see Link v. Wabash R.R., 370 U.S. 626, 630 (1962); Knoll v. Am. Tel. & Tel. Co., 176 F.3d
359, 363 (6th Cir. 1999).
Accordingly, each plaintiff (Hamby, Scruggs, Morris, Merritt, Shannon, Braden, Rippy, and
Rivera) is herewith assessed his portion of the three hundred fifty dollars ($350.00) civil filing fee
which is $43.75. Pursuant to 28 U.S.C. §§ 1915(b)(1)(A) and (B), the custodian of each plaintiff’s
inmate trust fund account at the institution where he now resides is directed to submit to the Clerk
of Court, as an initial payment, whichever is greater:
(a)

twenty percent (20%) of the average monthly deposits to the plaintiff’s inmate trust
fund account; or

(b)

twenty percent (20%) of the average monthly balance in the plaintiff’s inmate trust
fund account for the prior six (6) months.

Thereafter, the custodian shall submit twenty percent (20%) of each plaintiff’s preceding monthly

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income, or income credited to the plaintiff’s inmate trust fund account for the preceding month, but
only when his monthly income exceeds ten dollars ($10.00). 28 U.S.C. § 1915(b)(2). Payments
shall continue until each plaintiff has paid his portion of the fee in full to the Clerk of Court. Id.
Because the plaintiffs are prisoners, the court is obliged to conduct a preliminary review of
the complaint to determine whether it is frivolous, malicious, or fails to state a claim upon which
relief can be granted. 28 U.S.C. § 1915A. As provided in the accompanying memorandum, the
complaint is DISMISSED for failure to state claims on which relief may be granted. The claims
pertaining to the plaintiffs’ state court charges, detentions, convictions and/or sentences are
DISMISSED WITHOUT PREJUDICE. The plaintiffs’ motion for injunctive relief (Docket No.
14) is DENIED.
Because an appeal would NOT be taken in good faith, the plaintiffs are NOT certified to
pursue an appeal from this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3). Nevertheless,
should the plaintiffs decide to file a notice of appeal, they must pay the Clerk of Court the full four
hundred fifty-five dollar ($455.00) appellate filing fee or submit an application to proceed in forma
pauperis with a certified copy of his inmate trust account statement for the previous six (6) month
period. 28 U.S.C. §§ 1915(a)(1) & (a)(2).
The Clerk is DIRECTED to send a copy of this order to the Sheriff of the Davidson County
Jail to ensure that the custodian of the plaintiffs’ inmate trust fund accounts complies with the
portion of the Prison Litigation Reform Act that pertains to the payment of filing fees. Should either
plaintiff be transferred from his present place of confinement, the custodian of his inmate trust fund
account shall ensure that a copy of this order follows the plaintiff to his new place of confinement.
All payments made pursuant to this order shall be forwarded to the Clerk of Court for the Middle

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District of Tennessee.
Entry of this Order shall constitute the judgment in this action.

It is so ORDERED.

Todd J. Campbell
United States District Judge

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