Pentecost v. State of Tennessee

Filing 5

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS DISMISSING CASE WITHOUT PREJUDICE AND ASSESSING $400 CIVIL FILING FEE 1 . Signed by Judge James D. Todd on 6/29/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JOSHUA EDWARD PENTECOST,

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)
Plaintiff,
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VS.
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No. 1:15-cv-1119-JDT-egb
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STATE OF TENNESSEE,
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Defendant.
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__________________________________________________________________________
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
DISMISSING CASE WITHOUT PREJUDICE
AND ASSESSING $400 CIVIL FILING FEE
__________________________________________________________________________
On May 13, 2015, Plaintiff Joshua Edward Pentecost, Tennessee Department of
Correction prisoner number 473429, who is incarcerated at the Northwest Correctional
Complex in Tiptonville, Tennessee, filed a pro se motion for temporary restraining order
and preliminary injunction, which was docketed as a complaint for violation of his civil
rights, pursuant to 42 U.S.C. § 1983. (ECF No. 1.) However, Plaintiff neglected to submit
either the $400 civil filing fee required by 28 U.S.C. §§ 1914(a)-(b) or an application to
proceed in forma pauperis.
The Court issued an order on May 14, 2015, directing Plaintiff to submit the required
information or pay the entire filing fee within 30 days. (ECF No. 4.) Plaintiff was warned
that if he failed to comply with the order in a timely manner, the Court will “deny leave to
proceed in forma pauperis, assess the entire $400 filing fee without regard to the installment

payment procedures, and dismiss the action without further notice, under Fed.R.Civ.P.41(b),
for failure to prosecute.” (Id. At 2.)
The Plaintiff has not complied with the May 14, 2015 order, and the time for
compliance has expired. Therefore, the motion for leave to proceed in forma pauperis is
DENIED, and the complaint is hereby DISMISSED without prejudice, pursuant to
Fed.R.Civ.P.41(b).
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); cf. 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).
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 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 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 balances 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 Tennessee,
111 South Highland Avenue, Rm. 262, Jackson, TN 38301
and shall clearly identify Plaintiff’s name and the case number 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 fund accounts at Plaintiff’s prison. The Clerk is further ORDERED to forward a copy
of this order to the Warden of the Northwest Correctional Complex 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.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/James D. Todd_________________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE