Higgins v. Barker et al

Filing 5

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS, DISMISSING CASE WITHOUT PREJUDICE, AND ASSESSING $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 6/10/20. (skc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
LEWIS HIGGINS,

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Plaintiff,
VS.
T. J. BARKER, ET AL.,
Defendants.

No. 20-1088-JDT-cgc

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS,
DISMISSING CASE WITHOUT PREJUDICE, AND ASSESSING $400 CIVIL FILING FEE

On April 17, 2020, Lewis Higgins, an inmate at the Hardin County Correctional Facility
(Jail) in Savannah, 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).

Plaintiff’s motion, however, was not

accompanied by a certified copy of his prison trust account statement for the last six months, as
required by the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). Therefore, the
Court issued an order directing Plaintiff to submit the required information or pay the entire $400
civil filing fee within 30 days. (ECF No. 4.) Plaintiff 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 trust account without regard to the installment payment procedures,
and dismiss the action without further notice pursuant to Federal Rule of Civil Procedure 41(b) for
failure to prosecute.” (Id. at PageID 11.)
Plaintiff has not complied with or responded in any manner to the Court’s prior order, and
the time for compliance has expired. Therefore, the motion for leave to proceed in forma pauperis

is DENIED, and this case is hereby DISMISSED without prejudice in its entirety, pursuant to
Federal Rule of Civil Procedure 41(b).
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.
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 Jail Administrator 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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