United States District Court, W.D. Tennessee, Eastern Division
ORDER TO MODIFY THE DOCKET AND DIRECTING PLAINTIFF TO
PAY THE $400 CIVIL FILING FEE
D. TODD UNITED STATES DISTRICT JUDGE.
April 11, 2018, the pro se prisoner Plaintiff,
Willie Ervin Moore a/k/a Julian Franklin Carter, II a/k/a
Willie Ervin Minter,  Tennessee Department of Correction
prisoner number 219268, who is incarcerated at the Northwest
Correctional Complex (NWCX) in Tiptonville, Tennessee, filed
a complaint pursuant to 42 U.S.C. § 1983. He did not pay
the filing fee or submit a motion to proceed in forma
the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§§ 1915(a)-(b), a prisoner bringing a civil action
must pay the full filing fee required by 28 U.S.C. §
1914(a). The statute merely provides the prisoner the
opportunity to make a “down payment” of a partial
filing fee and pay the remainder in installments. See
McGore v. Wriggles worth, 114 F.3d 601, 604 (6th Cir.
1997) (“[w]hen an inmate seeks pauper status, the only
issue is whether the inmate pays the entire fee at the
initiation of the proceeding or over a period of time under
an installment plan. Prisoners are no longer entitled to a
waiver of fees and costs.”), partially overruled on
other grounds by La Fountain v. Harry, 716 F.3d
944, 951 (6th Cir. 2013). As stated however, Plaintiff has
not sought pauper status in this case.
Plaintiff had filed a motion to proceed in forma
pauperis, not all indigent prisoners are entitled to
take advantage of the installment payment provisions of
§ 1915(b). Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
“[s]uch a litigant cannot use the periodic payment
benefits of § 1915(b). Instead, he must make full
payment of the filing fee before his action may
proceed.” In re Alea, 286 F.3d 378, 380 (6th
Cir. 2002). The Sixth Circuit has upheld the
constitutionality of this provision. Wilson v.
Yaklich, 148 F.3d 596, 602-06 (6th Cir. 1998).
has filed numerous previous lawsuits, and at least five of
those suits were dismissed for failure to state a claim or as
frivolous. Therefore, Plaintiff would not be eligible
to take advantage of the installment-payment provisions of 28
U.S.C. § 1915(b) unless he is in imminent danger of
serious physical injury. The assessment whether a prisoner is
in imminent danger is made at the time of the filing of the
complaint. See, e.g., Vandiver v. Vasbinder, 416
Fed.Appx. 560, 561-62 (6th Cir. 2011); Rittner v.
Kinder, 290 Fed.Appx. 796, 797-98 (6th Cir. 2008);
Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.
2002); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-16
(3d Cir. 2001) (en banc).
case, Plaintiff has sued the NWCX and the NWCX
“Education Department”; Warden Shawn Phillips;
Jill Spencer; and E.C.T., which is not further identified. He
alleges that he has tried several times to apply for a G.E.D.
class at the NWCX but has been denied. Plaintiff asserts that
he has been told the prison's computer records show that
he already has a high school diploma. However, he contends
that information is incorrect. Plaintiff alleges that his
civil rights have been violated by the denial of an
education. (ECF No. 1 at 5-6.)
complaint does not allege that he is in imminent danger of
serious physical injury. Because this complaint does not come
within the exception to 28 U.S.C. § 1915(g), the Court
cannot address its merits unless Plaintiff first tenders the
civil filing fee.
is ORDERED to remit the entire $400 civil filing fee within
thirty (30) days after the date of this order. Failure to do
so will result in the assessment of the filing fee from
Plaintiff's inmate trust account without regard to the
PLRA's installment procedures and dismissal of this
action for failure to prosecute. Alea, 286 F.3d at
 The Clerk is directed to MODIFY the
docket to include Plaintiff's aliases, which the Court
has obtained ...