Brown v. Perry et al

Filing 11

ORDER DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 4/30/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
RICKY FLAMINGO BROWN, SR.,
Plaintiff,
VS.
GRADY PERRY, ET AL.,
Defendants.

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No. 17-1036-JDT-cgc

ORDER DISMISSING CASE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On March 6, 2017, the Plaintiff, Ricky Flamingo Brown, Sr., who is incarcerated at the
Riverbend Maximum Security Institution (RMSI) in Nashville, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)
Under the provisions of the Prison Litigation Reform Act (PLRA), Brown is a three-strike
filer. See 28 U.S.C. § 1915(g). In an order issued on March 21, 2018, the Court denied leave to
proceed in forma pauperis because the complaint did not satisfy the imminent danger exception to
§ 1915(g) and directed Brown to pay the $400 civil filing fee within 30 days. (ECF No. 10.) The
order warned that failure to comply would “result in the assessment of the filing fee from Brown’s
inmate trust account without regard to the [PLRA’s] installment procedures and dismissal of this
action for failure to prosecute.” (Id. at 5.)
Brown did not pay the filing fee within the time specified. Therefore, this case is
DISMISSED for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
The Court also CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate

Procedure 24(a), that an appeal by Brown would not be taken in good faith. Leave to appeal in
forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g).
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 the 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. 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 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 account 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 account 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

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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
and shall clearly identify Plaintiff’s name and the case number as it appears 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. If Plaintiff fails to abide by these or any other requirements of this
order, the Court may impose appropriate sanctions, including a monetary fine or restrictions on
Plaintiff’s ability to file future lawsuits in this Court, without any additional notice or hearing.
The Clerk is ORDERED to mail a copy of this order to the prison official in charge of inmate
trust accounts at the Plaintiff’s prison. The Clerk is further ORDERED to forward a copy of this
order to the Warden of the RMSI 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

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