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Seay v. Social Security Office

United States District Court, W.D. Tennessee, Western Division

July 20, 2015

LLOYD EUGENE SEAY, Plaintiff,
v.
SOCIAL SECURITY OFFICE, ET AL., Defendants.

ORDER EXTENDING TIME TO COMPLY WITH 28 U.S.C. § 1915(a)(2)

JAMES D. TODD, District Judge.

On June 8, 2015, Plaintiff Lloyd Seay, booking number 15109904, who is currently incarcerated at the Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)

Under the Prisoner Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914. Although the obligation to pay the fee accrues at the moment the case if 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 provides 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 certification by the prisoner trust account officer and a copy of his trust account statement for the last six months. 28 U.S.C. § 1915(a)(2).

Plaintiff's original in forma pauperis affidavit was not accompanied by a certified copy of his inmate trust account statement. Therefore, the Court issued an order on June 9, 2015, directing Plaintiff to submit, within 30 days, either a copy of his trust account statement or the entire filing fee. (ECF No. 4.) Plaintiff did not comply with the June 9, 2015, order. However, the Court received a letter from Plaintiff on July 17, 2015 (ECF No. 5) in which he states that he is still incarcerated and asks the Court to stop writing to him asking for money because he has none.[1]

The Court did not order Plaintiff to pay the filing fee outright. Instead, he was ordered to either pay the fee or file a copy of his inmate trust account statement. In his letter, Plaintiff does not state whether he has made any attempt to obtain his trust account statement from Jail officials. He must at least make an effort to do so, and if the Jail officials then refuse to provide him with the information, he should advise the Court. Cf. McGore, 114 F.3d at 611 (prisoner cannot be penalized for prison official's failure to promptly pay an assessment).

The Court will construe Plaintiff's July 17 letter as a request for an extension of time to comply with the previous order. Therefore, Plaintiff is allowed an additional 30 days after the date of this order in which to either submit a copy of his inmate trust account statement or pay the $400 filing fee. If Plaintiff attempts to obtain his trust account statement from Jail officials but is unable to do so, he must so notify the Court.

Plaintiff is again warned that if he fails to comply with this order in a timely manner the Court will deny leave to proceed in forma pauperis, assess the entire $400 filing fee without regard to the installment payment procedures, and dismiss the action without further notice pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute.

IT IS SO ORDERED.


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