Benson v. Shelby County Government et al

Filing 12

ORDER DISMISSING CASE AND ASSESSING $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 1/4/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
RICKY BENSON a/k/a
RICKEY BENSON,
Plaintiff,
VS.
SHELBY COUNTY, ET AL.,
Defendants.

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No. 14-2530-JDT-cgc

ORDER DISMISSING CASE AND ASSESSING $400 CIVIL FILING FEE

On July 9, 2014, the Plaintiff, Ricky Benson a/k/a Rickey Benson, booking number
15107847, who is incarcerated at the Shelby County Criminal Justice Complex (“Jail”) in Memphis,
Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to
proceed in forma pauperis. (ECF Nos. 1 & 2.) Plaintiff is a three-strike filer under 28 U.S.C.
§ 1915(g). In an order issued on November 12, 2015, the Court denied leave to proceed in forma
pauperis because the complaint did not satisfy the imminent danger exception to § 1915(g) and
directed Plaintiff to pay the $400 civil filing fee within 30 days. (ECF No. 11.) The order further
stated that “[f]ailure to do so will result in the assessment of the filing fee from Benson’s inmate
trust account without regard to the installment procedures and dismissal of this action for failure to
prosecute.” (Id. at 4.)
Plaintiff did not pay the filing fee within the time specified. Therefore, this case is
DISMISSED pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

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 a 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 account 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:

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Clerk, United States District Court, Western District of Tennessee
167 N. Main St., Room 242, Memphis, TN 38103
and shall clearly identify Plaintiff’s name and the case number 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 shall mail a copy of this order to the prison official in charge of prison trust
accounts at the Jail. The Clerk is further ORDERED to forward a copy of this order to the Director
of the Jail to ensure that the custodian of Plaintiff’s inmate trust account complies with that portion
of 28 U.S.C. §§ 1915(a)-(b) 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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