Shannon v. Luttrell et al

Filing 5

ORDER DIRECTING PLAINTIFF SHANNON 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 3/24/17. (Todd, James)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION WAYNE SHANNON, Plaintiff, VS. MARK H. LUTTRLL, ET AL., Defendants. ) ) ) ) ) ) ) ) ) No. 17-2213-JDT-cgc ORDER DIRECTING PLAINTIFF SHANNON TO COMPLY WITH 28 U.S.C. §§ 1915(a)(1)-(2) OR PAY THE $400 CIVIL FILING FEE On June 23, 2016, Plaintiffs Earl Morrow, Fred Erby and Wayne Shannon filed a pro se complaint pursuant to 42 U.S.C. § 1983, which was opened as case number 16-2491-JDTcgc. (ECF No. 1.) The Plaintiffs are incarcerated at the Shelby County Correctional Complex (“SCCC”) in Memphis, Tennessee. The complaint was signed by all three Plaintiffs, but only Plaintiff Morrow submitted an in forma pauperis application. (No. 16-2491, ECF No. 2.) On March 23, 2017, the Court issued an order that, inter alia, severed the Plaintiffs’ claims, leaving Plaintiff Morrow as the only Plaintiff in case number 16-2491. (See ECF No. 4.) The Clerk was directed to open new cases for Erby and Shannon (id. at 1-2), and Plaintiff Shannon’s claims were opened as case number 17-2213-JDT-cgc. Plaintiff Shannon did not pay the civil filing fee or submit a motion 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 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 Shannon 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. 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 . . . 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. 2 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 further notice for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). McGore, 114 F.3d at 605.2 IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE 2 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

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