Ray v. Reyes et al

Filing 4

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 2/24/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOHNATHAN RAY,
Plaintiff,
VS.
NURSE REYES, ET AL.,
Defendants.

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No. 16-2128-JDT-tmp

ORDER DIRECTING PLAINTIFF TO COMPLY WITH
28 U.S.C. § 1915(a)(1)-(2) OR PAY $400 CIVIL FILING FEE

On February 22, 2016, Plaintiff Johnathan Ray, who is incarcerated at the West
Tennessee State Penitentiary (“WTSP”) in Henning, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) However, Plaintiff neglected to 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).1

1

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.

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. However, 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). In this case, although Plaintiff submitted two copies of
his trust account statement (ECF Nos. 1-1 & 3), he did not submit an in forma pauperis
affidavit.
Therefore, the Plaintiff is ORDERED to submit, within 30 days after the date of this
order, either the entire $400 civil filing fee or a properly completed and executed application
to proceed in forma pauperis.2 The Clerk is directed to mail Plaintiff a copy of the prisoner
in forma pauperis affidavit form along with this order. If Plaintiff needs additional time to
submit the affidavit, he may, within 30 days after the date of this order, file a motion for an
extension of time.
If Plaintiff timely submits the necessary document and the Court finds that he is
indeed indigent, the Court will grant leave to proceed in forma pauperis and assess only a
$350 filing fee in accordance with the installment procedures of 28 U.S.C. § 1915(b).

2

Plaintiff does not need to submit another copy of his trust account statement.
2

However, if Plaintiff fails to comply with this order in a timely manner 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 605.3
If Plaintiff is transferred to a different prison or jail or if he is released, he is
ORDERED to notify the Court immediately, in writing, of his change of address.4 Failure
to abide by this requirement also may result in the dismissal this action, without further
notice, for failure to prosecute.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

3

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

On February 23, 2016, the Clerk received a letter from Plaintiff in which he states that
he “will be going back to county jail soon for court and could be there for quite sometime and
maybe even transferred from WTSP. Please forward a copy of everything the court sents me to
my home address provided below.” (ECF No. 3-2.) However, Plaintiff must keep the Court
apprised of his actual address and whereabouts each time he is moved or transferred to a
different facility, even if it is temporary. Using his home address may result in Plaintiff not
receiving mail from the Court in a timely manner, which could result in Plaintiff missing an
imposed deadline.
3