Baxter v. State of Tennessee et al
Filing
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ORDER DIRECTING PLAINTIFF TO FILE UPDATED FINANCIAL INFORMATION OR PAY THE FULL $505 APPELLATE FILING FEE. Signed by Judge James D. Todd on 11/28/16. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY AARON BAXTER,
Plaintiff,
VS.
STATE OF TENNESSEE, ET AL.,
Defendants.
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No. 12-1294-JDT-egb
ORDER DIRECTING PLAINTIFF TO FILE UPDATED FINANCIAL
INFORMATION OR PAY THE FULL $505 APPELLATE FILING FEE
Plaintiff Timothy Aaron Baxter, a prisoner acting pro se, filed a civil complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court granted leave to proceed in forma
pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) On October 4, 2013, the Court issued
an order granting leave to amend the complaint and directing that process be issued for
Defendant Kevin Gray. (ECF No. 10.) Ultimately, the Court granted Defendant Gray’s
motion for summary judgment and certified that an appeal by Plaintiff would not be taken
in good faith. (ECF No. 61.) Judgment was entered on March 12, 2015. (ECF No. 62.)
Plaintiff filed a motion for relief from judgment pursuant to Federal Rule of Appellate
Procedure 60(b) on March 18, 2015. (ECF No. 63.) The Court denied that motion on March
15, 2016. (ECF No. 69.) Plaintiff then filed a second motion for relief from judgment on
April 4, 2016 (ECF No. 70), which was denied on October 7, 2016 (ECF No. 74). On
November 25, 2016, Plaintiff filed a notice of appeal. (ECF No. 75.)
Generally, a plaintiff granted leave to proceed in forma pauperis is not required to pay
filing fees. 28 U.S.C. § 1915(a)(1). Because Plaintiff is a prisoner, however, he must pay
the entire $505 appellate filing fee, although he may be able to take advantage of the
installment payment method of § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013). In order to take advantage of the installment procedures, a prisoner
plaintiff must submit, along with the notice of appeal, an updated in forma pauperis affidavit
and inmate trust account statement. Id. at 610; 28 U.S.C. § 1915(a)(2).
In this case, Plaintiff did not pay the $505 appellate filing fee or submit an updated
in forma pauperis affidavit and trust account statement with the notice of appeal. Therefore,
at the present time, he is not eligible to take advantage of the installment procedures of
§ 1915(b). Plaintiff is, however, liable to the Court for the full amount of the appellate filing
fee, which accrued at the moment the notice of appeal was filed. Accordingly, Plaintiff is
hereby ORDERED to submit either the entire $505 appellate filing fee or an updated in
forma pauperis affidavit and trust account statement within 30 days after the date of this
order. If Plaintiff needs additional time to file the required documents, he may request one
30-day extension of time from this Court.
If Plaintiff fails to file the required documents in a timely manner, the Court will deny
leave to appeal in forma pauperis and assess the entire $505 filing fee from his inmate trust
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account without regard to the installment procedures, and the Sixth Circuit may dismiss the
appeal for failure to prosecute.
The Clerk is directed to send Plaintiff a copy of the prisoner in forma pauperis
affidavit form along with this order. The Clerk is also directed to notify the Sixth Circuit of
the entry of this order.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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