Faulkner v. Burleson et al

Filing 4

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(2) OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 4/1/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES FAULKNER,
Plaintiff,
VS.
F. BURLESON, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 15-2220-JDT-tmp

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(2)
OR PAY THE $400 CIVIL FILING FEE

On March 31, 2015, Plaintiff James Faulkner, booking number 11144562, who is
incarcerated at the Shelby County Criminal Justice Complex in Memphis, 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.)
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).
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. § 1915(b)(2). 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 containing a certification by the prison trust
account officer and a copy of his trust account statement for the last six months.
§ 1915(a)(2).
In this case, the affidavit submitted by Plaintiff does not contain a certification by the
prison trust account officer and is not accompanied by a copy of Plaintiff’s trust account
statement. Accordingly, Plaintiff is ORDERED to submit, within thirty (30) days after the
date of this order, either the entire $400 civil filing fee1 or an in forma pauperis affidavit
containing a certification by the trust account officer and a copy of his trust account
statement for the last six months. The Clerk is directed to provide Plaintiff with another copy
of the prisoner affidavit form along with this order. If Plaintiff needs additional time to file
the required documents, he may request one 30-day extension of time from this Court.
McGore, 114 F.3d at 605.
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 a filing
fee of $350 in accordance with the installment procedures of 28 U.S.C. § 1915(b). However,
if Plaintiff fails to comply with this order in a timely manner, the Court will deny leave to

1

Twenty-eight U.S.C. § 1914(a) requires a civil filing fee of $350. In addition, § 1914(b)
requires the clerk to “collect from the parties such additional fees . . . 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. Therefore, if Plaintiff is ultimately granted leave to proceed in forma pauperis in
accordance with the PLRA, he will not be responsible for the additional $50 fee.

proceed in forma pauperis, assess the entire $400 filing fee without regard to the installment
payment procedures, and dismiss the action without further notice pursuant to Fed. R. Civ.
P. 41(b), for failure to prosecute. McGore, 114 F.3d at 605.2
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

2

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 F.3d 378, 381 (6th Cir. 2002).