United States District Court, M.D. Tennessee, Nashville Division
WILLIAM D. HAMBY, JR., Plaintiff,
SGT. PUNCHY, et al., Defendants.
MEMORANDUM AND ORDER
A. Trauger United States District Judge.
D. Hamby, Jr., an inmate at the Morgan County Correctional
Complex (MCCX) in Wartburg, Tennessee, has filed a pro
se complaint under 42 U.S.C. § 1983. (Doc. No. 1.)
However, the plaintiff has not paid the required filing fee,
nor has he submitted an application to proceed in forma
April 3, 2019, the court entered an order finding that the
plaintiff, a known “three-striker” under 28
U.S.C. § 1915(g), satisfied the statutory exception to
the three-strikes rule by alleging that he was under an
imminent danger of serious harm when he filed the complaint,
and therefore that he would be permitted to apply for pauper
status. (Doc. No. 3.) The court directed the Clerk to mail
the plaintiff a blank IFP application form. The plaintiff was
ordered to either complete and return the IFP application or
pay the full filing fee within 28 days of the entry of the
order. (Id. at 3-4.) The plaintiff was explicitly
warned that failure to comply with the order could result in
the dismissal of this case. (Id. at 4.)
date, well past the 28-day deadline, the plaintiff has failed
to pay the filing fee, file an IFP application, or request an
extension of time in which to do so.
plaintiff's failure to comply with the court's order
requires the dismissal of this action. Federal Rule of Civil
Procedure 41(b) states that, “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order,
a defendant may move to dismiss the action or any claim
against it.” Fed.R.Civ.P. 41(b). Moreover, “[i]t
is clear that the district court does have the power under
Rule 41(b), Fed. R. Civ. P., to enter a sua sponte order of
dismissal.” Carter v. City of Memphis, 636
F.2d 159, 161 (6th Cir. 1980) (citing Link v. Wabash R.R.
Co., 370 U.S. 626 (1962)). Dismissal of this action is
appropriate in view of the plaintiff's fault in failing
to comply with the court's order, despite having been
warned that such failure would lead to dismissal. Choate
v. Emerton, No. 2:16-cv-00037, 2018 WL 3656505, at *2
(M.D. Tenn. Aug. 2, 2018), report and recommendation
adopted, 2018 WL 4076955 (M.D. Tenn. Aug. 27, 2018).
Under Rule 41(b), dismissal for failure to prosecute can be
either with or without prejudice. In view of the
plaintiff's pro se status, as well as the
preference for disposing of cases on their merits, the court
finds dismissal without prejudice to be the appropriate
disposition here. See Id. (citing Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 591 (6th Cir.
this action is DISMISSED WITHOUT PREJUDICE
for want of prosecution and for failure to comply with the
filing fee is nevertheless to be assessed against the
prisoner in this circumstance. See In re Alea, 286
F.3d 378, 382 (6th Cir. 2002); see also In re Prison Litig.
Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997)
(“If the prisoner does not comply with the district
court's directions [to file a properly supported IFP
application], the district court shall presume that the
prisoner is not a pauper, and assess the inmate the full
amount of fees.”). Accordingly, the entire $400.00 fee
is hereby ASSESSED, as follows:
Warden of the facility in which the plaintiff is currently
housed, as custodian of the plaintiff's trust account, is
DIRECTED to submit to the Clerk of Court, as
an initial payment, the greater of: (a) 20% of the average
monthly deposits to the plaintiff's credit at the jail;
or (b) 20% of the average monthly balance to the
plaintiff's credit for the six-month period immediately
preceding the filing of the complaint. 28 U.S.C. §
1915(b)(1). Thereafter, the custodian shall submit 20% of the
plaintiff's preceding monthly income (or income credited
to the plaintiff for the preceding month), but only when the
balance in his account exceeds $10.00. 28 U.S.C. §
1915(b)(2). Payments shall continue until the $400.00 filing
fee has been paid in full to the Clerk of Court. 28 U.S.C.
Clerk of Court MUST send a copy of this
order to the Warden of the facility where the plaintiff is
housed to ensure compliance with that portion of 28 U.S.C.
§ 1915 pertaining to the payment of the filing fee. If
the plaintiff is transferred from his present place of
confinement, the custodian must ensure that a copy of this
order follows the plaintiff to his new place of confinement,
for continued compliance with the order. All payments made
pursuant to this order must be submitted to the Clerk of
Court for the United States District Court for the Middle
District of Tennessee, 801 Broadway, Nashville, TN 37203.
the final order denying all relief in this case. The Clerk
SHALL enter judgment. Fed.R.Civ.P. 58(b).