Erby v. State of Tenn.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

RICHARD ERBY, ET AL., )

)

Plaintiff, )

)

vs. ) No. 2:23-cv-02298-SHM-tmp

)

STATE OF TENNESSEE, ET AL., )

)

Defendants. )

)

ORDER DISMISSING PLAINTIFF STROUD WITHOUT PREJUDICE

FOR FAILURE TO PROSECUTE 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.)

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

Pauperis; Directing Plaintiffs 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 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 (1) 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.)

On September 6, 2023, Plaintiff Stroud filed a motion for leave to proceed in forma

pauperis. (ECF No. 5.) On September 28, 2023, he filed a letter notifying the Court of his recent

release from jail and his new address. (ECF No. 6.)

On February 12, 2024, Plaintiff Stroud was ordered to “file a non-prisoner in forma

pauperis affidavit or pay his pro rate share of the civil filing fee within thirty (30) days of the date

of this order.” (ECF No. 19 at PageID 249.) The Court warned that “failure to comply in a timely

manner with this order will result in dismissal of Plaintiff Stroud from this action without further

notice, pursuant to Fed. R. Civ. P. 41(b), for failure to prosecute.” (Id.)

Plaintiff Stroud has not complied with the Court’s February 12, 2024 order. The time for

compliance has expired. Accordingly, Plaintiff Stroud is DISMISSED without prejudice from this

action, pursuant to Fed. R. Civ. P. 41(b), for failure to prosecute.

Notwithstanding Plaintiff Stroud’s 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 Plaintiff Stroud forward the pro rata share of the $402 civil filing fee

to the Clerk of this Court.

All payments 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 Plaintiff Stroud 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 Stroud’s

ability to file future lawsuits in this Court, without additional notice or hearing.

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 Plaintiff Stroud would not be taken in good faith.

Leave to proceed on appeal in forma pauperis is, therefore, DENIED.

IT IS SO ORDERED this 8th day of August, 2024.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE