Houston v. Philips et al
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING CASE WITHOUT PREJUDICE AND ASSESSING $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 9/20/17. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
SHAWN PHILLIPS, ET AL.,
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS,
DISMISSING CASE WITHOUT PREJUDICE AND
ASSESSING $400 CIVIL FILING FEE
On July 19, 2017, Plaintiff Eric Houston, Tennessee Department of Correction prisoner
number 204320, who is incarcerated at the Northwest Correctional Complex (NWCX) in
Tiptonville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)
Plaintiff did not pay the $400 civil filing fee or submit a motion to proceed in forma pauperis and
a copy of his inmate trust account statement for the last six months, as required by the Prison
Litigation Reform Act ( PLRA), 28 U.S.C. §§ 1915(a)-(b).
The Court issued an order on July 26, 2017, finding that the complaint, in its present form,
failed to state a claim on which relief may be granted. (ECF No. 3 at 2.) Plaintiff was directed to
file an amended complaint within 30 days and warned that if he failed to do so the case would be
dismissed without further notice. (Id.) The Court also directed Plaintiff to either pay the entire $400
filing fee or submit the financial information required by the PLRA within 30 days. (Id.) Plaintiff
again was warned that if he failed to comply with the order in a timely manner the Court would
“deny leave to proceed in forma pauperis, assess the entire $400 filing fee from his inmate trust
account without regard to the installment payment procedures [of the PLRA], and dismiss the action
without further notice for failure to prosecute . . . .” (Id. at 3.)
Although the time for compliance has expired, Plaintiff has not paid the filing fee or
submitted an in forma pauperis affidavit and a trust account statement; he also has failed to submit
an amended complaint. Therefore, the complaint is hereby DISMISSED with prejudice both for
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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
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 NWCX 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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