McFarland v. Bond et al
Filing
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ORDER DISMISSING CASE WITHOUT PREJUDICE AND ASSESSING $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 5/22/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
KENNETH ERIC MCFARLAND,
Plaintiff,
VS.
MELVIN BOND, ET AL.,
Defendants.
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No. 14-1282-JDT-egb
ORDER DISMISSING CASE WITHOUT PREJUDICE AND
ASSESSING $400 CIVIL FILING FEE
On October 15, 2014, the Plaintiff, Kenneth Eric McFarland, an inmate at the
Haywood County Justice Complex (“Jail”) in Brownsville, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In response to orders of the Court
(ECF Nos. 4 & 6), Plaintiff subsequently filed an in forma pauperis affidavit and inmate trust
account statement (ECF No. 7) and an executed signature page to his complaint (ECF No.
11).1
Plaintiff is a three-strike filer under 28 U.S.C. § 1915(g). In an order issued on April
2, 2015, the Court denied leave to proceed in forma pauperis because the complaint did not
satisfy the imminent danger exception to § 1915(g) and directed Plaintiff to pay the $400
civil filing fee within 28 days. (ECF No. 12.) The order further stated that “[f]ailure to do
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The signature page also included a new prayer for relief.
so will result in the assessment of the filing fee from Plaintiff’s inmate trust account without
regard to the installment procedures and dismissal of this action for failure to prosecute.” (Id.
at 5.)
On April 13, 2015, Plaintiff filed a motion seeking an unspecified extension of time.
(ECF No. 14.) The Court construed the motion as a request for an extension of time to pay
the filing fee and granted the motion on April 17, 2015, extending Plaintiff’s time to pay the
fee through May 14, 2015. (ECF No. 15.) The order further stated that “Plaintiff is again
warned that failure to [pay the filing fee] will result in dismissal of the case without further
notice pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 1-2.)
To date, Plaintiff has not paid the civil filing fee, and the time in which to do so has
expired. Instead, on May 4, 2015, the Clerk docketed a letter from McFarland asking that
the fee be waived due to his indigence. (ECF No. 16.) The Court is unable to waive the
statutory requirements of 28 U.S.C. § 1915. Even if it had the authority, it would decline to
do so where, as here, the complaint contains no credible allegation that Plaintiff is in
imminent danger of serious physical injury. Therefore, because Plaintiff has not paid the
filing fee within the time specified, this case is DISMISSED WITHOUT PREJUDICE
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Notwithstanding the dismissal of this action, the Court is still required to assess the
civil filing fee, since the responsibility for paying the filing fee accrues at the time a
complaint is filed. McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), partially
overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); cf.
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In re Alea, 286 F.3d 378, 381-82 (6th Cir. 2002) (dismissal of civil action filed by prisoner
pursuant to 28 U.S.C. § 1915(g) did not obviate the obligation to pay the filing fee).
It is ORDERED that Plaintiff cooperate fully with prison officials in carrying out this
order. It is further ORDERED that the trust fund officer at Plaintiff’s prison shall withdraw
from Plaintiff’s trust fund account the sum of $400 and forward that amount to the Clerk of
this Court. If the funds in Plaintiff’s account are insufficient to pay the full amount of the
civil filing fee, the prison official is instructed to withdraw all of the funds in Plaintiff’s
account and forward them to the Clerk of Court. On each occasion that funds are
subsequently credited to Plaintiff’s account, the prison official shall immediately withdraw
those funds and forward them to the Clerk of Court, until the civil filing fee is paid in full.
The trust fund officer is not required to remit any balance less than $10, unless that amount
would constitute the final installment of the civil filing fee, provided that any balance under
$10 is held in custody for purposes of paying the civil filing fee in this action and is promptly
remitted to the Clerk when sufficient funds are deposited into Plaintiff’s account to bring the
balance to $10.
Each time that the trust fund 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 file it with the Clerk along with the
payment. All payments and account statements shall be sent to:
Clerk, United States District Court, Western District of Tennessee
111 S. Highland Ave., Room 262, Jackson, TN 38301
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and shall clearly identify Plaintiff’s name and the case number on the first page of this order.
If Plaintiff is transferred to a different prison or released, he is ORDERED to notify
the Court immediately of his change of address. If still confined, he shall provide the
officials at the new prison with a copy of this order.
The Clerk shall mail a copy of this order to the prison official in charge of prison trust
fund accounts at Plaintiff’s prison. The Clerk is further ORDERED to forward a copy of this
order to the Jail Administrator to ensure that the custodian of Plaintiff’s inmate trust account
complies with that portion of 28 U.S.C. §§ 1915(a)-(b) pertaining to the payment of filing
fees.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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