Hernandez-Perez v. Prince

Filing 3

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING FEE. Signed by Judge James D. Todd on 1/23/2017. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FRANCISCO HERNANDEZ-PEREZ,
Plaintiff,
VS.
DR. PRINCE,
Defendant.

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No. 17-2038-JDT-tmp

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

On January 18, 2017, Plaintiff Francisco Hernandez-Perez, Bureau of Prisons register
number 07163-043, who is incarcerated at the Federal Correctional Institution in Memphis,
Tennessee, filed a pro se civil complaint pursuant to Bivens v. Six Unknown Agts. of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). (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
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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 . . . as are prescribed by
the Judicial Conference of the United States.” The Judicial Conference has prescribed an
additional fee of $50 for filing any civil case, except for cases seeking habeas corpus and cases
in which leave to proceed in forma pauperis is granted 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).
Therefore, 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 and a certified copy of his inmate trust account statement for
the last six months. 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
necessary documents, 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 documents 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).
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
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further notice for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b). McGore, 114 F.3d
at 605.2
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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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).
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