Miller v. Parker et al

Filing 7

AMENDED ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, ASSESSING $350 FILING FEE IN ACCORDANCE WITH PLRA AND TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a). The case is hereby TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the Northern Division of the United States District Court for the Eastern District of Tennessee, at Knoxville. Signed by Judge James D. Todd on 8/18/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DONALD CRAIG MILLER,
Plaintiff,
VS.
TONY PARKER, ET AL.,
Defendants.

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No. 17-1152-JDT-cgc

AMENDED1 ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS,
ASSESSING $350 FILING FEE IN ACCORDANCE WITH PLRA
AND TRANSFERRING CASE PURSUANT TO 28 U.S.C. § 1406(a)

On August 9, 2017, Plaintiff Donald Craig Miller, Tennessee Department of Correction
prisoner number 232285, who is incarcerated at the Hardeman County Correctional Facility (HCCF
) in Whiteville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The
Court issued an order on August 14, 2017, directing Plaintiff to submit, within 30 days, either the
$400 filing fee or an in forma pauperis affidavit and a copy of his inmate trust account for the last
six months, as required by the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b).
However, later that same day the Clerk received and docketed Plaintiff’s in forma pauperis affidavit
and trust account statement.
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).2 Although the

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The original order of transfer contained a typographical error directing the Clerk to
transfer the case to the Middle District of Tennessee.
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Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. However, pursuant to
§ 1914(b), “[t]he clerk shall collect from the parties such additional fees . . . as are prescribed by

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. Id. at 604. In this case,
Plaintiff has properly submitted an in forma pauperis affidavit and an inmate trust account
statement, as required by 28 U.S.C. § 1915(a)(2). The motion to proceed in forma pauperis is
GRANTED in accordance with the terms of the PLRA.
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 account officer at Plaintiff’s
prison shall calculate a partial initial filing fee equal to twenty percent (20%) of the greater of the
average balance in or deposits to Plaintiff’s trust fund account for the six months immediately
preceding the completion of the affidavit. When the account contains any funds, the trust account
officer shall collect them and pay them directly to the Clerk of the Court. If the funds in Plaintiff’s
account are insufficient to pay the full amount of the initial partial filing fee, the trust account officer
is instructed to withdraw all of the funds in the Plaintiff’s account and forward them to the Clerk of
the Court.
On each occasion that funds are subsequently credited to Plaintiff’s account the trust account
officer shall immediately withdraw those funds and forward them to the Clerk of Court, until the
initial filing fee is paid in full.

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 in which the
plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. As the Court is
granting leave to proceed in forma pauperis in this case pursuant to the terms of the PLRA,
Plaintiff is not liable for the additional $50 fee.
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It is further ORDERED that after the initial partial filing fee is fully paid, the trust account
officer shall withdraw from Plaintiff’s account and pay to the Clerk of this Court monthly payments
equal to twenty percent (20%) of all deposits credited to Plaintiff’s account during the preceding
month, but only when the amount in the account exceeds $10, until the $350 filing fee is paid.
Each time 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 submit it to the Clerk along with the payment. All payments and
accounts statements shall be sent to:
Clerk, United States District Court, Western District of Tennessee
111 S. Highland Ave., Rm. 262, Jackson, TN 38301
and shall clearly identify Plaintiff’s name and the case number as included on the first page of this
order.
If Plaintiff is transferred to a different prison or released, he is ORDERED to notify the Court
in which the case is pending of his change of address. If still confined, he shall provide the officials
at the new facility with a copy of this order. If Plaintiff fails to abide by these or any other
requirements of this order, appropriate sanctions may be imposed, up to and including dismissal of
this action, without any additional notice or hearing.
The Clerk shall mail a copy of this order to the prison official in charge of prison trust fund
accounts at the Plaintiff’s prison. The Clerk is further ORDERED to forward a copy of this order
to the Warden of the HCCF 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.
Plaintiff’s complaint concerns events that occurred during his previous incarceration at the
Rodger D. Wilson Detention Center in Knoxville, Tennessee. He has sued TDOC Commissioner
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Tony Parker, Knox County Sheriff Jimmy “J.J.” Jones; Knoxville Mayor Tim Burchett; and various
“Jailers” at the Detention Center, contending that his federal constitutional rights were violated. He
also seeks to assert various claims under Tennessee law.
Plaintiff asserts in his complaint that venue is appropriate in this district under Tenn. Code
Ann. § 41-21-803 because he is currently housed at the HCCF, located in this district.3 (ECF No.
1 at 4-5.) However, unless a different federal law provides otherwise, the proper venue of any civil
action brought in federal court is governed by the federal general venue statute, 28 U.S.C. § 1391,
not by state venue statutes and rules. “[T]his section shall govern the venue of all civil actions
brought in district courts of the United States.” § 1391(a)(1) (emphasis added).
Twenty-eight U.S.C. § 1391(b) authorizes the commencement of a federal civil action only
in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred . . . ; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.
Except for the fact that Plaintiff is now incarcerated here, this case has no connection with this
district. The complaint specfically alleges that the unlawful acts occurred in Knox County (see ECF

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Section 41-21-803 provides:
Except as otherwise provided by law, an action that accrued while the
plaintiff inmate was housed in a facility operated by the department or in a
facility operated by a private corporation pursuant to contract with the
state or local government shall be brought in the county in which the
facility is located.
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No. 1 at 3-4), which is part of the Northern Division of the Eastern District of Tennessee. 28 U.S.C.
§ 123(a)(1).
Twenty-eight U.S.C. § 1406(a) states that “[t]he district court of a district in which is filed
a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.” This action
should have been brought in the Eastern District of Tennessee. Therefore, the case is hereby
TRANSFERRED, pursuant to 28 U.S.C. § 1406(a), to the Northern Division of the United States
District Court for the Eastern District of Tennessee, at Knoxville.
The Clerk is directed to close this case without entry of judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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