Moss v. Perry et al
Filing
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ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 4/24/18. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ZAKKAWANDA MOSS,
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Plaintiff,
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VS.
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No. 18-1073-JDT-cgc
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GRADY PERRY, ET AL.,
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Defendants.
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________________________________________________________________________
ORDER DIRECTING PLAINTIFF TO COMPLY WITH
28 U.S.C. § 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING FEE
______________________________________________________________________
On April 23, 2018, Plaintiff
Zakkawanda Moss, Tennessee Department of
Correction prisoner number 524910, 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.) However, Plaintiff neglected to submit either
the $400 civil filing fee required by 28 U.S.C. §§ 1914(a)-(b) or an application to proceed
in forma pauperis.
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
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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 only 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.
Thus, if Plaintiff is granted leave to proceed in forma pauperis, he will not be liable for the
additional $50 fee.
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.
Id. at 604.
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 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 submitted a copy of his trust account statement (ECF No. 1-3.), he did not submit
an 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 extension of time.
If Plaintiff timely submits the necessary documents 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 procedure of 28 U.S.C. § 1915(b).
However, if plaintiff fails to comply with this order in a timely manner, the Court will
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Plaintiff does not need to submit another copy of his trust account statement.
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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, and dismiss the action
without further notice for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). McGore,
114 F.3rd at 605.3
IT IS SO ORDERED
s/James D. Todd______________
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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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 F3d. 378, 381 (6th Cir. 2002).
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