Burke v. Lenawee County Jail

• Court: District Court, E.D. Michigan
• Decided: August 2, 2024
• Docket: 2:24-cv-11632
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

JOSHUA J. BURKE,

Plaintiff, Case No. 2:24-cv-11632

v. Honorable Susan K. DeClercq United States District Judge LENAWEE COUNTY JAIL,

Defendant. _______________________________/ ORDER DISMISSING CASE SUA SPONTE FOR FAILURE TO PROSECUTE AND FAILURE TO PAY FILING FEES

Plaintiff Joshua Burke filed this lawsuit and sought permission to proceed without prepaying to do so. But his application demonstrated that he could afford to pay the filing fee yet had not paid, so he was directed to pay the fees. ECF No. 5 (citing Boussum v. Washington, 649 F. Supp. 3d 525, 529 (E.D. Mich.), recons. denied, 655 F. Supp. 3d 636 (E.D. Mich. 2023)). Plaintiff was also explicitly told that if he failed to pay the fees, then his complaint would be dismissed under 28 U.S.C. § 1915(b), (e)(2)(A) and Civil Rule 41(b) for failure to prosecute. Id. Plaintiff’s deadline was August 1, 2024. See FED. R. CIV. P. 6(d). He has not prepaid the fees or properly requested an exemption. Therefore, this Court must presume that he is proceeding without prepayment, assess the whole fee, and dismiss the case for failure to prosecute. McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 203 (2007). “If the case is dismissed under these circumstances, it is not

to be reinstated to the district court’s active docket”—even if the plaintiff attempts to pay the filing fees. Id.; see also Baxter v. Rose, 305 F.3d 486, 489 (6th Cir. 2002) (holding that McGore applies “where the district court dismisses cases sua sponte

under 28 U.S.C. § 1915A”), abrogated on other grounds by Jones, 549 U.S. 199; see also Redd v. Redmon, 215 F.3d 1327 (6th Cir. 2000) (unpublished table decision) (same for cases dismissed “under § 1915(e)(2)(A)”); Boussum v. Washington, 655 F. Supp. 3d 636, 642 (E.D. Mich. 2023) (same for cases dismissed under 28 U.S.C.

§ 1915(b)). Accordingly, it is ORDERED that Plaintiff’s Complaint, ECF No. 1, is DISMISSED. See 28 U.S.C. § 1915(b), (e)(2)(A); FED. R. CIV. P. 41(b).

Further, it is ORDERED that the Complaint is PROHIBITED from being reinstated to the district court’s active docket—even if Plaintiff pays the filing fees. Further, it is ORDERED that Plaintiff is DENIED leave to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(3).

This order closes the above-captioned case. /s/Susan K. DeClercq SUSAN K. DeCLERCQ United States District Judge Dated: 8/2/2024