Howard v. Lamar et al, No. 4:2014cv00066 - Document 11 (W.D. Ky. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr. Having failed to pay the $400 filing fee, the Court will, by separate Order, dismiss this action pursuant to Fed. R. Civ. P. 41(b). The prior Order (DN 9) obligating Plaintiff to pay the $400 filing fee remains in full effect. IT IS ORDERED that the Kentucky State Penitentiary shall forward $400.00 from Plaintiffs inmate account to the Clerk. cc: Plaintiff, pro se; KSP (SG)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT OWENSBORO MICHAEL DALE HOWARD v. PLAINTIFF CIVIL ACTION NO. 4:14-CV-P66-M DAVID W. LAMAR et al. DEFENDANTS MEMORANDUM AND ORDER Plaintiff, Michael Dale Howard, initiated this action by filing a complaint and a prisoner application to proceed without prepayment of fees. The Court determined that Plaintiff was barred from proceeding without paying the filing fee under 28 U.S.C. ยง 1915(a) unless he can show that he is in imminent danger of serious physical injury. Therefore, the Court ordered Plaintiff to pay the filing fee within 30 days. He was warned that failure to comply would result in dismissal of this action and continued responsibility to pay the filing fee. More than 30 days have passed since the Court entered its Order, and Plaintiff has not paid the filing fee.1 Having failed to pay the $400.oo filing fee as ordered by the Court, the Court will, by separate Order, dismiss this action pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a prior Order of this Court and failure to prosecute. Plaintiff remains obligated to pay the filing fee in full notwithstanding his failure to comply with the prior Order of this Court. McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) ( We conclude that by filing the complaint or notice of appeal, the prisoner waives any objection to the fee assessment by the district court. ) (emphasis added), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 1 The Court did receive a letter from Plaintiff asking this Court to contact Chase Bank and have that bank send in the required payment. However, as this Court has informed Plaintiff in a previous case dismissed for failure to pay the fee, it is Plaintiff s responsibility to ensure payment of the fee. Accordingly, the prior Order (DN 9) obligating Plaintiff to pay the $400.00 filing fee in this action remains in full effect. IT IS THEREFORE ORDERED that the Kentucky State Penitentiary shall forward $400.00 from Plaintiff s inmate account to the Clerk for full payment of the filing fee. The payment shall be made payable to Clerk, U.S. District Court and sent to the following address: Office of the Clerk United States District Court Western District of Kentucky 106 Gene Snyder U.S. Courthouse 601 W. Broadway Louisville, Kentucky 40202-2249 Date: cc: September 16, 2014 Plaintiff, pro se Kentucky State Penitentiary, 266 Water Street, P.O. Box 5128, Eddyville, KY 42038 4414.009
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