United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. Trauger JT United States District Judge.
December 19, 2018, Delmar Mack, an inmate at the Bledsoe
County Correctional Complex in Pikeville, Tennessee, filed a
pro se complaint under 42 U.S.C. § 1983 (Doc.
No. 1) and an application to proceed in forma
pauperis (IFP) (Doc. No. 2). After the court noted the
high balances reported in the plaintiff's inmate trust
account, the plaintiff subsequently filed an updated IFP
application in which he declared that he is unable to pay the
$400.00 filing fee despite receiving $900.00 per month in
veterans' disability benefits. (Doc. No. 8 at 1.) The
plaintiff also submitted a letter to the court dated May 24,
2019, in which he stated that he “would like to proceed
with paying the $400.00 filing fee.” (Doc. No. 9 at 1.)
on these submissions, the court denied the plaintiff
permission to proceed as a pauper and ordered him to pay the
$400.00 filing fee within 28 days of the entry of the
court's June 18, 2019 order. (Doc. No. 10.) The plaintiff
was explicitly warned that if he did not comply with this
order within the time frame specified or seek a timely
extension, this action would be dismissed for failure to
prosecute and for failure to comply with the court's
order and the filing fee would be assessed against him.
(Id. at 2.)
the date of this order, the plaintiff has not paid the filing
fee as directed. Rather, in a notice dated July 22, 2019, he
asserted that the Americans with Disabilities Act prohibits
the collection of court costs from disabled individuals such
as himself. (Doc. No. 11.)
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 Prison Litig.
Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997)
(“If the prisoner does not comply with the district
court's directions, the district court shall presume that
the prisoner is not a pauper, and assess the inmate the full
amount of fees.”). While the plaintiff asserts that the
Americans with Disabilities Act (ADA) prohibits the
assessment of “court costs” (Doc. No. 11 at 1),
he does not identify any specific provision of the ADA that
supports this assertion. In an abundance of caution, the
court liberally construes the plaintiff's argument under
the statute defining the exemption of veterans' benefits
from judicial process, 38 U.S.C. § 5301. However, the
court finds that such benefits are not exempt from an
assessment to enforce the filing fee requirement. In
pertinent part, Section 5301 provides as follows:
[S]uch payments made to, or on account of, a beneficiary
shall be exempt from taxation, shall be exempt from the claim
of creditors, and shall not be liable to attachment, levy, or
seizure by or under any legal or equitable process whatever,
either before or after receipt by the beneficiary. The
preceding sentence shall not apply to claims of the United
States arising under such laws [administered by the Secretary
of the Department of Veterans' Affairs] . . . .
38 U.S.C. § 5301(a)(1).
nothing in this statute suggests that recipients of
Veterans' benefits are exempt from the statutory filing
fee requirements of 28 U.S.C. § 1914, . . . [nor] that
Veterans' benefits cannot be taken into account for
purposes of determining whether a litigant is financially
eligible for IFP status.” Slupkowski v.
Terrell, No. 08-1081 JNE/SRN, 2008 WL 3911386, at *2 (D.
Minn. Aug. 18, 2008) (citing cases). Furthermore, “[b]y
filing the complaint, the prisoner waives any objection to
the fee assessment by the district court . . . [or] the
withdrawal of funds from the trust account by prison
officials to pay the prisoner's court fees and
costs.” In re Prison Litig. Reform Act, 105
F.3d at 1132. Even if the enforcement of the filing fee
obligation were deemed to be a form of seizure by legal
process under Section 5301(a)(1), “the required fees
must be considered to be a claim of the government and, thus,
exempt from the protective purposes of the statute.”
Gleave v. Graham, 954 F.Supp. 599, 611 (W.D.N.Y.
1997), aff'd, 152 F.3d 918 (2d Cir. 1998).
the plaintiff's objection to the fee assessment is
overruled and 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 plaintiffs credit at the jail; or (b)
20% of the average monthly balance to the plaintiffs 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 plaintiffs 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. § 1915(b)(3).
Clerk of Court MUST send a copy of this
order to 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 ...