Bivens actions arise from violations of an individual’s federal constitutional rights by one acting under color of federal law
How later courts described this case
- Bivens actions arise from violations of an individual’s federal constitutional rights by one acting under color of federal law
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KENNETH MOBLEY, ET AL., )
)
Plaintiffs, )
)
vs. ) No. 2:22-cv-02276-SHM-tmp
)
WARDEN BOWERS, ET AL., )
)
Defendants. )
)
ORDER DISMISSING CERTAIN PLAINTIFFS;
DENYING REQUEST FOR PRODUCTION OF TRUST FUND STATEMENT;
DIRECTING PLAINTIFFS TO COMPLY WITH 28 U.S.C. §§ 1914(a) & 1915(a) OR PAY
THE $402 CIVIL FILING FEE; AND DIRECTING PLAINTIFFS FREEMAN AND
SMITH TO SIGN COMPLAINT
On May 2, 2022, a pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by eight
inmates: Kenneth Mobley, Eric Reese, Ronald Freeman, Rodney Wadley, Randy Agnew, Eric
Brown, Gary Childress, and Brett Smith.1 At the time the complaint was filed, all eight plaintiffs
were purportedly confined at the Federal Correctional Institution in Memphis, Tennessee (“FCI
Memphis”).
The complaint was filed against the FCI Memphis Warden and other Federal Bureau of
Prisons employees. It is reasonably construed to allege a deprivation of various federal
constitutional rights, including but not limited to, denial of the rights to liberty, to be protected
from cruel and unusual punishment, of access to the courts, and to religious exercise. The Court
liberally construes the complaint as arising under Bivens v. Six Unknown Named Agents of the Fed.
1 Plaintiffs did not provide their Bureau of Prisons (“BOP”) register numbers.
Bureau of Narcotics, 403 U.S. 388 (1971); see Parry v. Mohawk Motors of Mich., Inc., 236 F.3d
299, 306 n.1 (6th Cir. 2000) (Bivens actions arise from violations of an individual’s federal
constitutional rights by one acting under color of federal law).
Under the Prison Litigation Reform Act (the “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 a prisoner the opportunity to make a “down
payment” of a partial filing fee and pay the remainder in installments. § 1915(b)(2). However, 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). The Plaintiffs did not
pay the filing fee,2 and only Mobley has submitted a motion to proceed in forma pauperis. (See
ECF No. 2.)
Plaintiffs Mobley, Freeman, and Smith appear to be the only plaintiffs who are currently
incarcerated at FCI Memphis. See Federal Bureau of Prisons Inmate Locator,
https://www.bop.gov/inmateloc/ (last accessed Nov. 21, 2022). The remaining Plaintiffs have not
provided the Court with changes of address and have not signed the complaint. It appears they
have abandoned this action. Plaintiffs Reese, Wadley, Agnew, Brown, and Childress are
2 The civil filing fee is $350. 28 U.S.C. § 1914(a). The Schedule of Fees set out following the
statute also requires an additional administrative fee of $52 for filing any civil case. That
additional fee will not apply if leave to proceed in forma pauperis is ultimately granted.
DISMISSED without prejudice from this action pursuant to Federal Rule of Civil Procedure 41(b),
for failure to prosecute.
Plaintiff Mobley
Plaintiff Mobley signed the complaint and has submitted an in forma pauperis affidavit.
(ECF No. 2.) However, he has failed to submit a copy of his trust account statement for the relevant
period. Plaintiff Mobley moves the Court to order the prison to provide the Court with his six-
month financial statements and asserts that his request has been refused. (See ECF No. 2-1.)
Plaintiff Mobley has not demonstrated his efforts to obtain a trust account statement from
the prison. Plaintiff Mobley’s request for an order requiring the prison to produce a trust account
statement (ECF No. 2-1) is DENIED.
Plaintiff Mobley is ORDERED to submit, within 30 days after the date of this order, either
his proportionate share of the $402 civil filing fee or a certified copy of his inmate trust account
statement for the last six months. If he needs additional time to submit his trust account statement,
he may, within 30 days after the date of this order, file a motion for an extension of time.
Plaintiffs Freeman & Smith
The complaint is only signed by Plaintiff Mobley. (See ECF No. 1 at PageID 6.) Plaintiffs
Freeman and Smith did not sign the complaint and have failed to pay the civil filing fee or submit
in forma pauperis affidavits with certified copies of their inmate trust account statements.
Therefore, the Clerk is DIRECTED to mail one copy each of PageID 6, which contains the
signature block, to Plaintiffs Freeman and Smith. Plaintiffs Freeman and Smith are ORDERED
to sign the page and return it within 30 days after the date of this order. Failure to do so will result
in dismissal of the plaintiff who fails from this case pursuant to Federal Rule of Civil Procedure
41 for failure to prosecute.
Plaintiffs Freeman and Smith are ORDERED to submit, within 30 days after the date of
this order, either their individual proportionate shares of the $402 civil filing fee or properly
completed and executed in forma pauperis affidavits and certified copies of their inmate trust
account statements for the last six months. The Clerk is DIRECTED to mail Plaintiffs Freeman
and Smith each a copy of the prisoner in forma pauperis affidavit form along with this order. If
additional time is needed to submit the necessary documents, the plaintiff may, within 30 days
after the date of this order, file a motion for an extension of time.
If a 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 the proportionate share
of a $350 filing fee in accordance with the installment procedure of 28 U.S.C. § 1915(b). However,
if a Plaintiff fails to comply with this order in a timely manner, the Court will deny leave to proceed
in forma pauperis, assess the plaintiff’s proportionate share of the entire $402 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 605.3
If any plaintiff is transferred to a different prison or released, he is ORDERED to notify
the Court immediately, in writing, of his change of address. Failure to abide by this requirement
may likewise result in the dismissal of this case without further notice, for failure to prosecute.
3 Even a voluntary dismissal by a Plaintiff will not eliminate the obligation to pay the filing fee.
McGore, 114 F.3d at 607; see In re Alea, 286 F.3d 378, 381 (6th Cir. 2002).
IT IS SO ORDERED, this 6th day of December, 2022.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE