United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING PLAINTIFF JACKSON, SEVERING
REMAINING PLAINTIFFS, ADDRESSING FEE ISSUES AND DENYING
MOTIONS FOR TEMPORARY RESTRAINING ORDER
D. TODD UNITED STATES DISTRICT JUDGE.
5, 2017, a pro se civil complaint was filed pursuant
to 42 U.S.C. § 1983 by six Tennessee Department of
Correction inmates: Terrance Nichols, prisoner number 359992;
Terrence Burnett, prisoner number 293592; Curtis James
Jackson, prisoner number 404827; Rodney Smith, prisoner
number 14209; Artis Whitehead, prisoner number 369413; and
James Blue, prisoner number 277214. At the time the complaint
was filed, all six were confined at the Hardeman County
Correctional Facility (HCCF) in Whiteville, Tennessee. The
complaint is signed by all except Plaintiff Whitehead. The
filing fee was not paid, but only four of the Plaintiffs have
submitted motions to proceed in forma pauperis.
Plaintiff Jackson signed the complaint and submitted a motion
to proceed in forma pauperis, the TDOC Felony
Offender Information website shows that he has been paroled.
However, he has provided the Court with no change of address.
The most basic responsibility of a litigant is to keep the
Court advised of his whereabouts, but Plaintiff Jackson has
failed to do so. Therefore, it appears he has abandoned this
action. Accordingly, Plaintiff Jackson's claims are
hereby DISMISSED without prejudice pursuant to Federal Rule
of Civil Procedure 41(b), for failure to prosecute. His
motion to proceed in forma pauperis (ECF No. 7) is
DENIED as moot.
not practicable for the five remaining Plaintiffs to litigate
their claims in a single action. The Court hereby SEVERS the
claims of Plaintiffs Terrence Burnett, Rodney Smith, Artis
Whitehead and James Blue. The Clerk is directed to open new
civil actions for these four Plaintiffs and to docket a copy
of the complaint and this order in each new case. The instant
case will proceed with Terrance Nichols as the sole
the Prison 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(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 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 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).
Terrance Nichols has failed to submit a motion to proceed
in forma pauperis. Therefore, Plaintiff Nichols 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. The Clerk is
directed to mail Plaintiff Nichols a copy of the prisoner
in forma pauperis affidavit form along with this
order. If he needs additional time to submit the necessary
documents, he may, within 30 days after the date of this
order, file a motion for an extension of time.
Plaintiff Nichols 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). However, if Plaintiff
Nichols 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 from his
inmate trust account without regard to the installment
payment procedures, and dismiss the action without further
notice for failure to prosecute, pursuant to Federal Rule of
Civil Procedure 41(b).
Plaintiff Nichols is transferred to a different prison or
released, he is ORDERED to notify the Court immediately, in
writing, of his change of address. Failure to abide by this
requirement may likewise result in the dismissal of this case
without further notice, for failure to prosecute.
Burnett, Smith and Blue
Terrence Burnett, Rodney Smith and James Blue all have
properly submitted motions to proceed in forma
pauperis and certified copies of their inmate trust
account statements as required by the PLRA. (ECF Nos. 5, 6,
& 8.) Therefore, leave to proceed in forma
pauperis is GRANTED as to these three Plaintiffs in
accordance with the terms of the statute. The $350 filing
fees will be assessed in separate orders once the Clerk opens
new cases for Burnett, Smith and Blue.
TDOC website shows that Plaintiff Whitehead is currently
incarcerated at the Northwest Correctional Complex (NWCX) in
Tiptonville, Tennessee. Therefore, when opening his new case,
the Clerk is directed to ensure the docket reflects
Whitehead's current location at the NWCX, 960 State Route
212, Tiptonville, TN 38079.
Whitehead did not sign the complaint and has failed to either
pay the civil filing fee or submit a motion to proceed in
forma pauperis and a copy of his inmate trust account
statement. Therefore, the Clerk is directed to mail a copy of
page 62 of the complaint to Plaintiff Whitehead, which
contains the signature block where he failed to sign the
document. Plaintiff Whitehead is ORDERED to sign that page
and return it within 30 days after the date of this order.