Hays v. Alward et al
MEMORANDUM AND ORDER: The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Accordingly, this action is hereby DISMISSED. Signed by District Judge Aleta A. Trauger on 1/17/2017. (xc:Pro se party by regular and certified mail. Warden by regular mail)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
RODNEY M. HAYS
PATTHAY ALWARD, et al.
MEMORANDUM AND ORDER
The Court has before it a pro se prisoner complaint (Docket Entry Nos. 1 and 5) under 42
U.S.C. § 1983 and an application to proceed in forma pauperis (Docket Entry No. 6).
It appears from the application that the plaintiff lacks sufficient financial resources from
which to pay for the filing of the complaint. Therefore, the plaintiff’s application to proceed in forma
pauperis is GRANTED. 28 U.S.C. § 1915(a).
The plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C.
§ 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where
he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust
(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust
account for the prior six (6) months.
Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding
monthly income (or income credited to the plaintiff's trust account for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk
of Court. 28 U.S.C. § 1915(b)(2).
The plaintiff is an inmate at the Metro Davidson County Detention Facility in Nashville. On
September 21, 2016, he attempted to “pet” a dog being housed in his unit and was bitten on the right
forearm. The plaintiff alleges both negligence and deliberate indifference on the part of the
defendants as the cause for his injury.
The plaintiff has previously raised his claims in an action in federal court. See Rodney M.
Hays v. Patthay Alward, et al., Civil Action No. 3:16-2823 (M.D. Tenn.)(Crenshaw, J.,
presiding)(presently pending on appeal; Appellate No. 16-6831). That action was dismissed for
failure to state a claim upon which relief could be granted. 28 U.S.C. § 1915(e)(2).
To promote the interests of judicial economy, a district court may raise the doctrine of res
judicata sua sponte. Holloway Construction Co. v. United States Department of Labor, 891 F.2d
1211, 1212 (6th Cir.1989)(per curiam). Thus, an action will be barred under res judicata where (1)
the prior litigation involved the same parties or their privies, (2) the prior litigation was terminated
by a final judgment on the merits, and (3) the prior litigation involved the same claim or cause of
action as the present lawsuit. Hydranautics v. Film Tec Corporation, 204 F.3d 880 (9th Cir.2000).
In this case, the plaintiff is raising the same claims against the same defendants or their
privies, predicated upon the same course of events. The previous action was dismissed for failure
to state a claim, which constitutes a dismissal on the merits. Pratt v. Ventas, Inc., 365 F.3d 514, 522
(6th Cir.2004). Therefore, pursuant to the doctrine of res judicata, the instant action is barred.
Accordingly, this action is hereby DISMISSED. An appeal of the judgment rendered herein
would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445-446 (1962).
Therefore, the plaintiff is NOT certified to pursue an appeal of this judgment in forma pauperis. 28
U.S.C. § 1915(a)(3).
Nevertheless, should the plaintiff decide to file a notice of appeal, he must either pay the
Clerk of Court the full appellate filing fee of five hundred five dollars ($505) or submit a new
application to proceed in forma pauperis with a certified copy of his inmate trust account statement
for the previous six month period. 28 U.S.C. § 1915(a)(1); McGore v. Wrigglesworth, 114 F.3d 601
(6th Cir. 1997).
The Clerk is directed to send a copy of this order to the Warden of the Metro Davidson
County Detention Facility to ensure that the custodian of plaintiff’s inmate trust account complies
with that portion of the Prison Litigation Act relating to the payment of the filing fee.
It is so ORDERED.
Aleta A. Trauger
United States District Judge
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