Keys v. Moore et al

Filing 3

ORDER DIRECTING PLAINTIFF TO FILE A SIGNED, AMENDED COMPLAINT AND TO COMPLY WITH 28 U.S.C. §§ 1915(a)-(b) OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 12/15/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BERNARD KEYS,
Plaintiff,

VS.

ROBERT MOORE, ET AL.,
Defendants.

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No. 15-2798-JDT-tmp

ORDER DIRECTING PLAINTIFF TO FILE A SIGNED, AMENDED COMPLAINT
AND
TO COMPLY WITH 28 U.S.C. §§ 1915(a)-(b)
OR PAY THE $400 CIVIL FILING FEE

On December 11, 2015, Plaintiff Bernard Keys, booking number 15136267, an inmate
at the Shelby County Criminal Justice Complex in Memphis, Tennessee, filed an unsigned,
pro se document titled “Inmate Grievance Form” and “Affidavit of Complaint.” (ECF No.
1.) Although it is not entirely clear whether Plaintiff meant to commence a lawsuit with this
document or whether he merely intended to request a form so that he could then file a
lawsuit, the Court construes the document as an attempt to file a complaint pursuant to 42
U.S.C. § 1983. However, Plaintiff did not 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).
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. In order to take advantage of the installment procedures, the
prisoner must 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).
However, not all indigent prisoners are entitled to take advantage of the installment
payment provisions of § 1915(b). Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.
Thus, “[s]uch a litigant cannot use the period payment benefits of § 1915(b). Instead, he
must make full payment of the filing fee before his action may proceed.” In re Alea, 286
F.3d 378, 380 (6th Cir. 2002). The Sixth Circuit has upheld the constitutionality of this
provision. Wilson v. Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).

2

Plaintiff has filed at least three previous civil rights lawsuits while he was incarcerated
that were dismissed for failure to state a claim or as frivolous.1 Therefore, Plaintiff may not
file any action in which he proceeds in forma pauperis unless he demonstrates that he is
under imminent danger of serious physical injury. The assessment of whether a prisoner is
in imminent danger is made at the time of the filing of the complaint. See, e.g., Vandiver v.
Vasbinder, 416 F. App’x 560, 561-62 (6th Cir. 2011); Rittner v. Kinder, 290 F. App’x 796,
797-98 (6th Cir. 2008). In this case, the unsigned document submitted by Plaintiff is not
sufficiently clear for the Court to determine whether Plaintiff has satisfied his burden of
showing that he was in imminent danger of serious physical injury when it was filed.
Plaintiff is ORDERED to file, within 30 days after the date of this order, a signed,
amended complaint that fully and clearly sets out his claims. Plaintiff is further ORDERED
to submit, also within 30 days after the date of this order, either the entire $400 civil filing
fee2 or an in forma pauperis affidavit and a certified copy of his inmate trust account
statement for the last six months, as required by the PLRA. The Clerk is directed to mail

1

Plaintiff previously filed Keys v. Hart,No. 00-2980-JPM (W.D. Tenn. Nov. 30, 2000)
(dismissed as frivolous), Keys v. Gilless, 00-3085-JPM (W.D. Tenn. Nov. 30, 2000) (dismissed
as frivolous), and Keys v. Moore, 13-2212-JDT (W.D. Tenn. Jun. 19, 2013) (dismissed for
failure to state a claim).
2

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.
3

Plaintiff a § 1983 complaint form and a prisoner in forma pauperis affidavit form along with
this order. If Plaintiff needs additional time to submit the necessary documents, he may,
within 30 days after the date of this order, file a motion for an extension of time.
If Plaintiff pays the entire $400 filing fee, his complaint will be screened pursuant to
28 U.S.C. § 1915A(b). However, if Plaintiff seeks pauper status by submitting the financial
documentation required by the PLRA, the Court will first determine, pursuant to § 1915(g),
whether the complaint demonstrates that he was in imminent danger of serious physical
injury at the time this action was filed.3
If Plaintiff fails to timely comply with this order, the Court will 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.3d at 605.4
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

3

If Plaintiff sufficiently alleges that he was in imminent danger of serious physical injury
when the case was filed, the Court may grant leave to proceed in forma pauperis and assess the
filing fee using the PLRA’s installment payment procedures. However, if the Court finds
Plaintiff has not sufficiently alleged that he was in imminent danger when the case was filed,
pauper status will be denied, and Plaintiff will be given another opportunity to pay the entire
filing fee.
4

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).
4