Opinion
Civil No. 12-CV-305-KKC
01-24-2013
THOMAS RIDGEWAY, Plaintiff, v. CORRECTIONS DEPARTMENT, et al., Defendants.
ORDER OF DISMISSAL
On September 27, 2012, plaintiff Thomas Ridgeway filed a motion seeking permission to file a 42 U.S.C. § 1983 civil rights action [R. 1] and a motion to pay the $350.00 filing fee in installments. [R. 2]
On October 3, 2012, the Court denied Ridgeway's motion to file a complaint without paying the filing fee, but provided him with the proper form for filing a civil rights complaint and gave him 28 days in which to submit a complaint and pay the $350.00 filing fee in full. [R. 3] In so doing, the Court noted that he is not eligible to pay the $350.00 filing fee in installments because he is subject to the "three strikes" bar of 28 U.S.C. § 1915(g). See Ridgeway v. Commonwealth of Kentucky, No. 5:12-CV-129-JBC (E.D. Ky. 2012) [R. 20, therein]; Ridgeway v. Commonwealth of Kentucky, No. 12-5757 (6th Cir. Jan. 17, 2013) ("Ridgeway's action is barred by the three-strikes provision of the Prison Litigation Reform Act. 28 U.S.C. § 1915(g).").
On October 17, 2012, Ridgeway filed a complaint using the proper form [R. 4], but did not pay the $350.00 filing fee. His time for doing so has long since expired. On November 3, 2012, Ridgeway filed a notice of appeal [R. 5], but an untimely appeal does not divest the Court of jurisdiction over the matter. The Court will therefore dismiss this proceeding without prejudice for failure to prosecute. Fed. R. Civ. P. 41(b); Palasty v. Hawk, 15 F. App'x 197, 199-200 (6th Cir. 2001). Ridgeway remains liable for payment of the $350.00 filing fee. In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
Accordingly, IT IS ORDERED that:
1. Ridgeway's complaint [R. 4] is DISMISSED WITHOUT PREJUDICE for want of prosecution and for failure to comply with an order of the Court.
2. Ridgeway, Kentucky Department of Corrections ("KDOC") Inmate No. 160952, is assessed the $350.00 civil filing fee for this action.
3. The Clerk of the Curt shall open an account in Ridgeway's name for receipt of the filing fee and shall serve a copy of this order and a notice of payment form (Form EDKY 525), complete with (a) Ridgeway's name, (b) his inmate number, and (c) this case number, upon the warden of the institution in which he is currently confined and upon the KDOC in Frankfort, Kentucky.
4. Ridgeway's custodian shall submit payments from his inmate account, as and when funds are deposited therein, until the full $350.00 filing fee has been paid to the Clerk of this Court.
5. The Clerk of this Court shall transmit a copy of this Order to the Clerk of the Sixth Circuit Court of Appeals, referencing Case No. 12-6524.
6. The Court will enter an appropriate judgment.
7. This matter IS STRICKEN from the Court's active docket.
Signed By:
Karen K. Caldwell
United States District Judge