Becton v. Weirich 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 4/11/16. (Todd, James)

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

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No. 16-2233-JDT-cgc

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

On April 8, 2016, Plaintiff Xavier Becton, Tennessee Department of Correction
(“TDOC”) prisoner number 561079, who is incarcerated at the Bledsoe County Correctional
Complex (“BCCX”)1 in Pikeville, 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.)
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

1

Although Plaintiff’s complaint, executed on March 31, 2016, indicates he is
incarcerated at the BCCX, the TDOC’s Offender Information database shows that he is housed at
the Trousdale Turner Correctional Center (“TTCC”) in Hartsville, Tennessee. See
https://apps.tn.gov/foil-app/search.jsp. As it is unclear at this time which location is correct, the
Clerk is DIRECTED to mail a copy of this order to Plaintiff at both the BCCX and the TTCC.

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 current certification by the prison
trust account officer and a copy of his trust account statement for the six months immediately
preceding the filing of the complaint. § 1915(a)(2).
In this case, the affidavit submitted by Plaintiff is not accompanied by a certified copy
of his 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 fee2 or a copy of his
trust account statement for the last six months.3 If Plaintiff needs additional time to file the
required document, he may request one 30-day extension of time from this Court. McGore,
114 F.3d at 605.
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 a filing
fee of $350 in accordance with the installment procedures of 28 U.S.C. § 1915(b). However,

2

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.
3

Plaintiff does not need to submit another in forma pauperis affidavit.
2

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 without regard to the installment
payment procedures, and dismiss the action without further notice pursuant to Federal Rule
of Civil Procedure 41(b), for failure to prosecute. McGore, 114 F.3d at 605.4
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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).
3