Opinion
No. 16-2539-JDT-dkv
07-01-2016
WILLIAM T. MARTIN, Plaintiff, v. CHERRY LINDAMOOD, Defendant.
ORDER DIRECTING PLAINTIFF TO CLARIFY HIS PLEADING AND EITHER PAY THE APPROPRIATE FILING FEE OR FILE A MOTION TO PROCEED IN FORMA PAUPERIS
On June 27, 2016, William T. Martin, Tennessee Department of Correction prisoner number 384489, who is incarcerated at the South Central Correctional Facility in Clifton, Tennessee, filed a pro se civil complaint. (ECF No. 1.) However, Plaintiff neglected to submit either the appropriate filing fee required by 28 U.S.C. §§ 1914(a)-(b) or an application to proceed in forma pauperis.
It is unclear from Plaintiff's document whether his intent is to file a complaint for violation of his civil rights pursuant to 42 U.S.C. § 1983 or a petition for writ of habeas corpus pursuant to either 28 U.S.C. § 2241 or 28 U.S.C. § 2254. Therefore, Plaintiff is ORDERED to clarify, in writing and within 30 days after the date of this order, whether his complaint is a § 1983 civil rights complaint, a § 2241 habeas petition, or a § 2254 petition.
If Plaintiff's complaint is intended as a civil rights complaint, the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b), applies to the assessment of the filing fee. Under the PLRA, a prisoner bringing a civil action must pay the entire civil 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 gives the prisoner the opportunity to make a "down payment" of a partial filing fee and pay the remainder in installments. § 1915(b)(2). However, in order 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).
Section 1914(a) requires a $5 filing fee for habeas petitions and a civil filing fee of $350 for all other civil cases. 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 habeas cases and cases in which the plaintiff is granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. --------
Therefore, if the complaint is intended as a civil rights complaint pursuant to 42 U.S.C. § 1983, Plaintiff 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. 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).
If, however, Plaintiff's document is intended as a habeas petition, he is ORDERED to submit either the $5.00 habeas filing fee required by 28 U.S.C. § 1914(a) or a motion to proceed in forma pauperis and a copy of his inmate trust account statement. Plaintiff is advised that if his current trust account balance is at least $25, he will be required to pay the $5 fee.
If Plaintiff fails to comply with this order in a timely manner the Court will deny leave to proceed in forma pauperis and dismiss the action without further notice for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).
The Clerk is directed to mail Plaintiff a copy of the prisoner in forma pauperis affidavit form along with this order. IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE