Erby v. State of Tenn.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

RICHARD ERBY, ET AL., )

)

Plaintiffs, )

)

v. ) Case No. 2:23-cv-02298-SHM-tmp

)

STATE OF TENNESSEE, ET AL., )

)

Defendants. )

)

ORDER DISMISSING CERTAIN PLAINTIFFS WITHOUT PREJUDICE AND

ASSESSING THE $402 CIVIL FILING FEE

On May 10, 2023, Plaintiffs (1) Richard Erby, (2) Robert L. Love, (3) Jerrahmiah J.

Rankins, (4) Dangelo C. Reid, (5) Rodricus Brown, (6) LaTerrance Stewart, (7) Antonio

Whitmore, Jr., (8) Jutarian D. Malone, (9) Lavell Pennington, and (10) Szumanki Stroud

(collectively, the “Plaintiffs”) filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

Plaintiff Erby signed and filed a motion to proceed in forma pauperis. (“IFP Motion,” ECF No. 2

at PageID 46.)

On August 8, 2023, the Court entered an Order Denying Motion to Proceed In Forma

Pauperis; Directing Plaintiff to Comply with 28 U.S.C. § 1914(a)-(b) and § 1915(a); and Directing

the Clerk to Send Forms to Plaintiffs. (ECF No. 4.) The Court explained that the plaintiffs were

proportionately liable for the filing fee. (Id. at PageID 79.)

Plaintiffs Love, Rankins, Reid, Brown, Stewart, Whitmore, Malone, Pennington, and

Stroud were each ordered “to submit, within twenty-one (21) days after the date of this Order,

either: (1) the Pro Rata Amount; or (2) a properly completed and executed § 1915(a)(2) application

to proceed as a pauper, including (a) an in forma pauperis affidavit and (b) certified copy of the

Plaintiff’s inmate trust account statement for the last six (6) months.” (Id. at PageID 80, 82.) The

plaintiffs were warned,

If any Plaintiff fails to comply with this Order, the Court will, without

further notice, dismiss that Plaintiff as a party to the complaint for failure to

prosecute, pursuant to Federal Rule of Civil Procedure 41(b). See McGore, 114

F.3d at 605.

(Id. at PageID 80.) The Court advised that, if any of these plaintiffs failed to comply with the

Court’s Order, the Court would “(1) deny leave for the non-complying Plaintiff to proceed in forma

pauperis; (2) assess the entire four hundred dollar ($400.00) filing fee from the non-complying

Plaintiff’s inmate trust account without regard to the installment procedures; and (3) dismiss the

non-complying Plaintiff’s claims in the complaint, without further notice, for failure to prosecute,

pursuant to Federal Rule of Civil Procedure 41(b).” (Id.at PageID 82-83.)

Plaintiffs Rankins, Brown, and Malone have not paid their pro rata shares of the filing fee

or completed a § 1915(a)(2) application. They have failed to comply with the Court’s August 8,

2023 order, and the period for compliance has expired. Plaintiffs Rankins, Brown, and Malone

are hereby DISMISSED without prejudice from this action for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b).

Notwithstanding these plaintiffs’ dismissal, the Court is still required to assess the civil

filing fee, since the responsibility for paying the filing fee accrues at the time the complaint is filed.

McGore v. Wrigglesworth, 114 F.3d at 601, 607 (6th Cir. 1997), partially overruled on other

grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); cf. In re Alea, 286 F.3d 378,

381-82 (6th Cir. 2002) (dismissal of civil action filed by prisoner pursuant to 28 U.S.C. § 1915(g)

did not obviate the obligation to pay the filing fee).

It is ORDERED that Plaintiffs Rankins, Brown, and Malone cooperate fully with prison

officials in carrying out this order. It is further ORDERED that the trust fund officer at the prison

of each plaintiff shall withdraw from their trust fund accounts the pro rata share of the $402 civil

filing fee and forward that amount to the Clerk of this Court. If the funds in a plaintiff’s account

are insufficient to pay the full pro rata share of the civil filing fee, the prison official is instructed

to withdraw all the funds in the plaintiff’s account and forward them to the Clerk of Court. On

each occasion that funds are subsequently credited to the plaintiff’s account, the prison official

shall immediately withdraw those funds and forward them to the Clerk of Court, until the pro rata

share of the civil filing fee is paid in full. The trust fund officer is not required to remit any balances

less than $10, unless that amount would constitute the final installment of the plaintiff’s pro rata

share, provided that any balance under $10 is held in custody for purposes of paying the plaintiff’s

pro rata share in this action and is promptly remitted to the Clerk when sufficient funds are

deposited into Plaintiff’s account to bring the balance to $10.

Each time that the trust fund officer makes a payment to the Court as required by this order,

he shall print a copy of the prisoner’s account statement showing all activity in the account since

the last payment under this order and file it with the Clerk along with the payment. All payments

and account statements shall be sent to:

Clerk, United States District Court, Western District Tennessee,

167 N. Main, Ste. 242, Memphis, TN 38103

and shall clearly identify the plaintiff’s name and the case number as it appears on the first page

of this order.

If the plaintiff is transferred to a different prison or released, he is ORDERED to notify the

Court immediately of his change of address. If still confined, he shall provide the officials at the

new prison with a copy of this order. If the plaintiff fails to abide by these or any other

requirements of this order, the Court may impose appropriate sanctions, including a monetary fine

or restrictions on Plaintiff’s ability to file future lawsuits in this Court, without additional notice

or hearing.

The Clerk is ORDERED to mail a copy of this order to the prison official in charge of

prison trust fund accounts and to the administrator of the jail to ensure that the custodian of the

plaintiff’s inmate trust account complies with that portion of the PLRA pertaining to the payment

of filing fees.

It is also CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate

Procedure 24(a), that any appeal in this matter by Plaintiffs Rankins, Brown, and Malone would

not be taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED.

IT IS SO ORDERED this 12th day of February, 2024.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE