United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
John Thornton, proceeding pro se, filed this civil
rights lawsuit under 42 U.S.C. §1983 complaining of
alleged violations of his constitutional rights. Docket No.
1. This Court referred the case to the United States
Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and
(3) and the Amended Order for the Adoption of Local Rules for
the Assignment of Duties to United States Magistrate Judges.
The named Defendants are Officer Corvette Phillips and the
Texas Department of Criminal Justice. Docket No. 1 at 1.
November 1, 2016, Plaintiff was ordered to pay an initial
partial filing fee of $6.50, in accordance with 28 U.S.C.
§1915(b). Docket No. 3. He filed a response to this
order stating he had no money and did not know when his
family would send him any, and the only money he received was
$20.00 per year from his father's coal and lignite lease.
Docket No. 8 at 1. He followed this on December 5, 2016, with
a commissary slip dated November 30, 2016, purporting to show
he had no money in his account. Docket No. 9 at 1.
December 28, the Magistrate Judge issued an order stating
commissary slips were not acceptable substitutes for an
in forma pauperis data sheet and giving Plaintiff an
additional 30 days to pay the initial partial filing fee or
show cause for his failure to do so by submitting a current
data sheet. Docket No. 28 at 1.
January 12, 2017, Plaintiff filed an in forma
pauperis data sheet. Docket No. 12. This data sheet
showed in December of 2016, after receiving the order for an
initial partial filing fee of $6.50, Plaintiff received a
deposit of $50.00, giving him ample means with which to pay
the fee; instead, Plaintiff spent all of the money without
paying the fee despite the fact he knew of the fee at the
time he received the deposit. See Id. at 1.
The Magistrate Judge's Report and Plaintiff's
February 22, 2017, the Magistrate Judge issued a Report
recommending dismissal of the lawsuit. Docket No. 13. The
Magistrate Judge stated there is nothing unconstitutional
about making incarcerated persons pay part of the costs of
litigation through the partial filing fee plan devised by
Congress and codified in 28 U.S.C. §1915(b). Docket No.
13 at 2. Because Plaintiff failed to pay the initial partial
filing fee when he received funds which were more than ample
to permit him to do so, the Magistrate Judge determined
Plaintiff failed to prosecute his case or to obey an order of
the Court. Id. at 3.
filed objections to the Report on March 7, 2017. Docket No.
15. In these objections, Plaintiff states “the reason I
John Thornton TDCJ #1430272 didn't pay the $6.50 initial
partial fee when order[ed] by the court is because I had to
pay off a friendly debt to a friend here on the Telford
Unit.” Id. at 1. He acknowledges the Court
issued the initial partial fee order on November 1, 2016, and
he received $50.00 from his aunt in December. Id. He
asks the Court to collect the initial partial fee in
installments until it is paid off along with the rest of the
fee. Id. at 2.
does not dispute he received more than ample funds to pay the
initial partial filing fee in the month after the fee was
imposed. Instead, he simply chose not to pay the fee,
electing instead to pay off “a friendly debt to a
friend.” See Id. at 1. In Dudley v.
Pratt, Case No. 6:07cv320, 2007 WL 4290500 (E.D.Tex.,
December 4, 2007), the plaintiff Antonio Dudley was assessed
an initial partial filing fee of $4.01. Id. at 1. He
responded by stating he only received $20.00 per month, with
which he purchased personal items from the commissary such as
hygienic supplies, writing material, and postage stamps.
Id. The Court determined Dudley failed to prosecute
or to obey an order of the Court and dismissed the lawsuit
without prejudice. Id. at 2; see also Hicks v.
Secretary, Florida Department of Corrections, Case No.
4:10cv529, 2011 WL 1405155 (N.D.Fla., February 28, 2011) (all
litigants, including prisoners proceeding pro se,
must make decisions about how to spend their money when
contemplating litigation, and may have to make sacrifices to
pursue a claim), citing Beck v. Symington, 972
F.Supp. 532, 535 (D.Ariz. 1997).
request to have the inital partial filing fee collected in
installments does not comport with the in forma
pauperis statute, which provides that the initial
partial filing fee will be assessed and collected by the
district court up front and the remainder of the filing fee
collected in installments. 28 U.S.C. §1915(b)(1),
(b)(2). Plaintiff acknowledges he had the funds to pay the
initial partial filing fee of $6.50 when he received a
deposit of $50.00 in December of 2016. His choice not to do
so was his own. Plaintiff's objections fail to set out
any valid reason to reject the Report of the Magistrate
Court has conducted a careful de novo review of
those portions of the Magistrate Judge's proposed
findings and recommendations to which the Plaintiff objected.
See 28 U.S.C. §636(b)(1) (District Judge shall
“make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”). Upon
such de novo review, the Court has determined the