Jenkins v. Deitz et al

Filing 10

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 4/13/18. (mbm)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION MICHAEL RAY JENKINS, Plaintiff, VS. TAMRA FORD, Defendant. ) ) ) ) ) ) ) ) ) No. 17-1111-JDT-cgc ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE On May 24, 2017, Plaintiff Michael Ray Jenkins, Tennessee Department of Correction prisoner number 89343, who is incarcerated at the Whiteville Correctional Facility in Whiteville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the Middle District of Tennessee. (ECF No. 1.) Plaintiff’s non-medical claims against Defendant Tamra Ford were severed and transferred to this district on June 8, 2017. (ECF No. 5.) Plaintiff did not pay the civil filing fee when he submitted his complaint. 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).1 Although the obligation to 1 The civil filing fee is $350. See 28 U.S.C. § 1914(a). The Schedule of Fees set out following the statute also requires the Clerk to collect an additional administrative fee of $50 for filing any civil case. However, that additional $50 fee will not apply if Plaintiff is ultimately granted leave to proceed in forma pauperis. 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. Id. at 604. However, in order to take advantage of the installment procedures, the prisoner must complete and submit to the district court, along with the complaint, an in forma pauperis affidavit and a certified copy of his inmate trust account statement for the last six months. 28 U.S.C. § 1915(a)(2). In this case, although Plaintiff did submit a certified copy of his trust account statement (ECF No. 2), he did not file an actual in forma pauperis affidavit. Therefore, the Plaintiff is ORDERED to submit, within 30 days after the date of this order, either the entire $400 civil filing fee or a properly completed and executed application to proceed in forma pauperis.2 The Clerk is directed to mail Plaintiff a copy of the prisoner in forma pauperis affidavit form along with this order. If Plaintiff needs additional time to submit the affidavit, he may, within 30 days after the date of this order, file a motion for an extension of time. 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 only a $350 filing fee 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 2 Plaintiff does not need to submit another copy of his trust account statement. 2 leave to proceed in forma pauperis, assess the entire $400 filing fee from his inmate trust account without regard to the installment payment procedures, and dismiss the action without further notice for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b). McGore, 114 F.3d at 605.3 If Plaintiff is transferred to a different prison or released, he is ORDERED to notify the Court immediately, in writing, of his change of address. Failure to abide by this requirement may likewise result in the dismissal of this case without further notice, for failure to prosecute. IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE 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). 3

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