Mitchell v. Weirich et al

Filing 8

ORDER DISMISSING CASE WITHOUT PREJUDICE AND ASSESSING $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 6/23/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
THOMAS E. MITCHELL,
Plaintiff,
VS.
AMY WEIRICH, ET AL.,
Defendants.

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No. 14-2932-JDT-dkv

ORDER DISMISSING CASE WITHOUT PREJUDICE AND
ASSESSING $400 CIVIL FILING FEE

On December 3, 2014, the Plaintiff, Thomas E. Mitchell, Tennessee Department of
Correction prisoner number 117645, an inmate at the Northeast Correctional Complex
(“NECX”) in Mountain City, Tennessee, filed a pro se complaint pursuant to 42 U.S.C.
§ 1983. (ECF No. 1.) Plaintiff is a three-strike filer under 28 U.S.C. § 1915(g). In an order
issued on April 30, 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 twenty-eight days. (ECF No. 5.) The order further
stated that “[f]ailure to do so will result in the dismissal of this action for failure to prosecute
. . . and assessment of the filing fee in a lump sum.” (Id. at 4 (citation omitted).)
Plaintiff did not pay the filing fee within the time specified. Instead, on June 12,
2015, almost two weeks after the expiration of the deadline, he filed a response to the order.

(ECF No. 6.) Plaintiff asked that he be allowed to pay the filing fee in installments, that the
case be transferred to a state court that would be willing to accept it without prepayment of
the filing fee, or that the action be stayed for twenty-five months to enable him to raise the
filing fee. However, Plaintiff cannot pay the filing fee in installments because he is subject
to 28 U.S.C. § 1915(g) and does not allege that he is in imminent danger of serious physical
injury. In addition, a federal court is not authorized to transfer a case to state court and
cannot solicit state courts to accept a case. Finally, although an extension of time to pay the
filing fee might be appropriate, an extension of twenty-five months would be far too long.
Therefore, Plaintiff’s motion is DENIED.
Because Plaintiff has not paid the filing fee within the time specified, this case is
DISMISSED WITHOUT PREJUDICE 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
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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
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.

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The Clerk shall mail a copy of this order to the prison official in charge of prison trust
accounts at the NECX. The Clerk is further ORDERED to forward a copy of this order to
the Warden of the NECX 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.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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