Opinion
1:20-cv-00018
08-04-2021
FREDERICK ALEXANDER AVERY, Plaintiff, v. JUDGE CHERYL A. BLACKBURN, et al., Defendants.
MEMORANDUM AND ORDER
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE
State inmate Frederick Alexander Avery filed a pro se complaint under 42 U.S.C. § 1983 (Doc. No. 1) and an application for leave to proceed in forma pauperis (IFP) (Doc. No. 2) on April 2, 2020. By Order entered April 20, 2020 (Doc. No. 4), the Court denied Plaintiff's IFP application pursuant to 28 U.S.C. § 1915(g), required him to prepay the full filing fee of $400, and cautioned him that failure to do so would result in the dismissal of the case and assessment of the fee against him.
Rather than heed this requirement, on April 28, 2020, Plaintiff filed a Notice of Appeal from the denial of his IFP application. (Doc. No. 6.) Plaintiff did not at that time pay the $505 appellate filing fee or file in this Court an application for leave to proceed IFP on appeal. The Court determined that Section 1915(g) precluded the granting of pauper status on appeal in this case, and so issued a deficiency order cautioning Plaintiff that he must either prepay the appellate filing fee within 30 days or secure permission directly from the Sixth Circuit to proceed IFP, in order to avoid dismissal of his appeal for want of prosecution and assessment of the full appellate filing fee against him. (Doc. No. 8 at 2 (citing In re Alea, 286 F.3d 378, 382 (6th Cir. 2002)).)
On January 11, 2021, Plaintiff's appeal was dismissed after he failed to comply with the Sixth Circuit's instructions to pay the appellate filing fee into this Court by December 9, 2020. (Doc. Nos. 9, 10.) The case thus returned to this Court, where Plaintiff has failed in the intervening six months to pay the filing fee as required by the Court's April 20, 2020 Order.
Dismissal of this action is appropriate in view of Plaintiff's fault in failing to comply with the Court's Order despite having been warned that such failure could lead to dismissal, Choate v. Emerton, No. 2:16-cv-00037, 2018 WL 3656505, at *2 (M.D. Tenn. Aug. 2, 2018), report and recommendation adopted, 2018 WL 4076955 (M.D. Tenn. Aug. 27, 2018), and pursuant to the Court's “well settled . . . authority to dismiss sua sponte a lawsuit for failure to prosecute.” Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013). See also M.D. Tenn. L.R. 41.01(a) (“Civil suits that have been pending for an unreasonable period of time without any action having been taken by any party may be summarily dismissed[.]”). In view of Plaintiff's pro se status, as well as the preference for disposing of cases on their merits, the Court finds dismissal without prejudice to be the appropriate disposition here. See Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir. 2011).
Accordingly, this action is DISMISSED WITHOUT PREJUDICE. Both the $400 district court filing fee and the $505 appellate filing fee are hereby ASSESSED against Plaintiff, see In re Alea, 286 F.3d 378, 382 (6th Cir. 2002), with payment to be made as follows:
The warden of the facility in which Plaintiff is currently housed, as custodian of Plaintiff's trust account, is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a) 20% of the average monthly deposits to Plaintiff's credit at the jail; or (b) 20% of the average monthly balance to Plaintiff's credit for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of Plaintiff's preceding monthly income (or income credited t when the balance in his account exceeds $10. Id. in filing fees has been paid in full to the Clerk of
The Clerk of Court MUST send a copy o Plaintiff is currently housed to ensure complianc to the payment of these filing fees. If Plaintiff is t the custodian must ensure that a copy of this confinement, for continued compliance with the must be submitted to the Clerk of Court for the U of Tennessee, 801 Broadway, Nashville, TN 372
It is so ORDERED.