Smith v. Hurdle et al

Filing 4

ORDER DIRECTING PLAINTIFF TO FILE A SIGNED IN FORMA PAUPERIS AFFIDAVIT OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 1/12/2017. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MICHAEL DESHAWN SMITH,
Plaintiff,
VS.
ASHLEY HURDLE, ET AL.,
Defendants.

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No. 17-2025-JDT-cgc

ORDER DIRECTING PLAINTIFF TO FILE A SIGNED IN FORMA PAUPERIS AFFIDAVIT
OR PAY THE $400 CIVIL FILING FEE

On January 12, 2017, Plaintiff Michael Deshawn Smith, who is incarcerated at the Northeast
Correctional Complex in Mountain City, Tennessee, filed a civil complaint accompanied by an
unsigned 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
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, although Plaintiff filled out his in forma pauperis affidavit and submitted a
certification of his inmate trust account statement, he neglected to sign the affidavit. Accordingly,
Plaintiff is ORDERED to submit, within 30 days after the date of this order, either the entire $400
civil filing fee1 or a signed and completed in forma pauperis affidavit.2 The Clerk is directed to mail
Plaintiff another copy of the prisoner in forma pauperis affidavit form along with this order. 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, 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 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 605.3
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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.
2

Plaintiff does not need to submit another trust account statement.

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).
2