Lucas v. Holland et al

Filing 12

ORDER DIRECTING PLAINTIFF TO FILE AN UPDATED IN FORMA PAUPERIS AFFIDAVIT OR PAY THE FULL $505 APPELLATE FILING FEE. Signed by Judge James D. Todd on 4/17/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DEREK LUCAS,
Plaintiff,
VS.
J.C. HOLLAND, ET AL.,
Defendants.

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No. 16-2309-JDT-cgc

ORDER DIRECTING PLAINTIFF TO FILE AN UPDATED IN FORMA PAUPERIS
AFFIDAVIT OR PAY THE FULL $505 APPELLATE FILING FEE

Plaintiff Derek Lucas, a prisoner acting pro se, filed a civil complaint pursuant to Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1974). (ECF No. 1.) The Court granted leave
to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation
Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) On March 22, 2017, the Court
dismissed the complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and
certified that an appeal would not be taken in good faith. (ECF No. 8.) Judgment was entered the
same day. (ECF No. 9.) On April 13, 2017, Plaintiff filed a notice of appeal (ECF No. 10) and a
motion for leave to appeal in forma pauperis (ECF No. 11).
Generally, a plaintiff granted leave to proceed in forma pauperis is not required to pay filing
fees. 28 U.S.C. § 1915(a)(1). Because Plaintiff is a prisoner, however, he must pay the entire $505
appellate filing fee, although he may be able to take advantage of the installment payment method
of § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), partially overruled
on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). In order to take

advantage of the installment procedures, a prisoner plaintiff must submit, along with the notice of
appeal, an updated in forma pauperis affidavit and inmate trust account statement. Id. at 610; 28
U.S.C. § 1915(a)(2).
In this case, while Plaintiff submitted a current trust account statement with his motion to
proceed in forma pauperis, he neglected to submit an updated in forma pauperis affidavit.
Therefore, at the present time, he is not eligible to take advantage of the installment procedures of
§ 1915(b). Plaintiff is, however, liable to the Court for the full $505 appellate filing fee, which
accrued at the moment the notice of appeal was filed. Accordingly, Plaintiff is hereby ORDERED
to submit either the full $505 appellate filing fee or an updated in forma pauperis affidavit within
30 days after the date of this order. If Plaintiff needs additional time to file the required affidavit,
he may request one 30-day extension of time from this Court.
If Plaintiff fails to file the required affidavit in a timely manner, the Court will deny leave
to appeal in forma pauperis and assess the entire $505 filing fee from his inmate trust account
without regard to the installment procedures, and the Sixth Circuit may dismiss the appeal for failure
to prosecute. However, if Plaintiff timely submits the necessary document and the Court finds that
he is still indigent, then the Court will grant leave to appeal in forma pauperis and assess the filing
fee in accordance with the installment procedures of 28 U.S.C. § 1915(b).
The Clerk is directed to send Plaintiff a copy of the prisoner in forma pauperis affidavit form
along with this order. The Clerk is also directed to notify the Sixth Circuit of the entry of this order.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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