Perry v. Parker et al

Filing 4

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(2) OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 12/30/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
WILLIE PERRY, JR.,
Plaintiff,
VS.
TONY PARKER, ET AL.,
Defendants.

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No. 16-1327-JDT-cgc

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(2)
OR PAY THE $400 CIVIL FILING FEE

On December 30, 2016, Plaintiff Willie Perry, Jr., who is incarcerated at the Northwest
Correctional Complex in Tiptonville, Tennessee, filed a complaint pursuant to 42 U.S.C. § 1983
accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b), a prisoner
bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914(a). Although the
obligation to pay the fee accrues at the moment the case is filed, see McGore v. Wrigglesworth, 114
F.3d 601, 605 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716
F.3d 944, 951 (6th Cir. 2013), the PLRA provides the prisoner the opportunity to make a “down
payment” of a partial filing fee and pay the remainder in installments. § 1915(b)(2). However, in
order to take advantage of the installment procedures, the prisoner must properly complete and
submit to the district court, along with the complaint, an in forma pauperis affidavit containing a
current certification by the prison trust account officer and a copy of his trust account statement for
the six months immediately preceding the filing of the complaint. § 1915(a)(2).

In this case, the affidavit submitted by Plaintiff is not accompanied by a certified copy of his
trust account statement. Accordingly, Plaintiff is ORDERED to submit, within 30 days after the
date of this order, either the entire $400 civil filing fee1 or a copy of his trust account statement for
the last six months.2 If Plaintiff needs additional time to file the required document, he may request
one 30-day extension of time from this Court. McGore, 114 F.3d at 605.
If Plaintiff timely submits the necessary document and the Court finds that he is indeed
indigent, the Court will grant leave to proceed in forma pauperis and assess a filing fee of $350 in
accordance with the installment procedures of 28 U.S.C. § 1915(b). However, if Plaintiff fails to
comply with this 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 pursuant to Federal Rule of Civil Procedure 41(b), for failure to
prosecute. McGore, 114 F.3d at 605.3
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. In addition, § 1914(b)
requires the clerk to “collect from the parties such additional fees . . . as are prescribed by the
Judicial Conference of the United States.” The Judicial Conference has prescribed an additional
administrative fee of $50 for filing any civil case, except for cases seeking habeas corpus and
cases in which the plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C.
§ 1915. Therefore, if Plaintiff is ultimately granted leave to proceed in forma pauperis in
accordance with the PLRA, he will not be responsible for the additional $50 fee.
2

Plaintiff does not need to submit another in forma pauperis affidavit.

3

Even a voluntary dismissal by Plaintiff will not eliminate the obligation to pay the filing
fee. McGore, 114 F.3d at 607; see also In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).
2