McHenry v. Payne

• Court: District Court, E.D. Arkansas
• Decided: February 4, 2025
• Docket: 3:23-cv-00239
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

MARKELVIN LORENZO MCHENRY ADC #180858 PLAINTIFF

v. Case No. 3:23-cv-00239-KGB

DEXTER PAYNE, Director, ADC DEFENDANT

ORDER Before the Court are Findings and Recommendation (“Recommendation”) submitted by United States Magistrate Patricia S. Harris (Dkt. No. 11). Plaintiff Markelvin Lorenzo McHenry has filed objections to the Recommendation (Dkt. No. 14), two “Notices” that the Court construes as part of his objections (Dkt. Nos. 13; 16), a letter that the Court construes as a motion for status update (Dkt. No. 12), a motion that the Court construes as a supplement to his objections and an additional request for status update (Dkt. No. 15), and a motion for leave to proceed in forma pauperis (Dkt. No. 17). For the reasons set forth below, the Court declines to adopt Judge Harris’s Recommendation (Dkt. No. 11) and grants Mr. McHenry’s motions for a status update (Dkt. Nos. 12; 15). For the reasons explained in this Order, the Court also denies Mr. McHenry’s most recent motion for leave to proceed in forma pauperis (Dkt. No. 17). I. Background Mr. McHenry is currently incarcerated at the Grimes Unit of the Arkansas Division of Corrections (Dkt. No. 1, at 1). On November 15, 2023, he filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his sentence has been imposed incorrectly (Id., at 1–2). On December 4, 2023, Judge Harris ordered Mr. McHenry either to pay the $5.00 filing fee or to file a motion for leave proceed in forma pauperis by January 4, 2024 (Dkt. No. 2, at 2). Mr. McHenry then filed a motion for leave to proceed in forma pauperis (Dkt. No. 7), which Judge Harris rejected on grounds that he had the means to pay the filing fee (Dkt. No. 8, at 1). Judge Harris then gave Mr. McHenry until February 23, 2024, to pay the filing fee (Id., at 2). On January 26, 2024, Mr. McHenry filed a copy of an “Inmate Personal Withdrawal Request Form” requesting that $5.00 be paid to the Clerk’s office for the stated purpose: “To pay for filing

fee an application to proceed in forma pauperis papers” (Dkt. No. 9). On March 5, 2024, Judge Harris noted that no payment had yet been received by the Clerk’s office, but, in the light of Mr. McHenry’s apparent attempt at paying the fee, Judge Harris extended the deadline for him to pay the fee up to and including March 19, 2024 (Dkt. No. 10, at 2). Judge Harris then issued her Recommendation on March 27, 2024, recommending that Mr. McHenry’s petition be dismissed without prejudice for failure to pay the filing fee and that judgment be entered for respondent Dexter Payne (Dkt. No. 11, at 3). Mr. McHenry timely filed objections to the Recommendation (Dkt. No. 14). He has supplemented those objections (Dkt. Nos. 12; 13; 15; 16).

On June 3, 2024, Mr. McHenry filed a second motion for leave to proceed in forma pauperis (Dkt. No. 17). II. Motion For Leave To Proceed In Forma Pauperis The Court turns first to Mr. McHenry’s second motion for leave to proceed in forma pauperis (Id.). Under the Prison Litigation Reform Act (“PLRA”), a prisoner who is permitted to file a civil action in forma pauperis still must pay the full statutory filing fee of $5.00. 28 U.S.C. § 1915(b)(1). The only question is whether a prisoner will pay the entire filing fee at the initiation of the proceeding or in installments over a period of time. Ashley v. Dilworth, 147 F.3d 715, 716 (8th Cir. 1998). Even if a prisoner is without assets and unable to pay an initial filing fee, he will be allowed to proceed with his claims, and the filing fee will be collected by the Court in installments from the prisoner’s inmate trust account. 28 U.S.C. § 1915(b)(4). In this case, Judge Harris found that, for purposes of Mr. McHenry’s first motion for leave to proceed in forma pauperis, Mr. McHenry’s total deposits for the preceding six months were $1,255.00, that his average monthly account balance was $20.36, and that his account balance as

of January 8, 2024, was $34.71 (Dkt. No. 8, at 1; see also Dkt. No. 7, at 5). Given these facts, Judge Harris concluded that Mr. McHenry had the means to pay the $5.00 filing fee and denied his motion (Dkt. No. 8, at 1). Mr. McHenry does not dispute Judge Harris’s interpretation of these facts and concedes that he has the ability to pay the filing fee in his objections to the Recommendation (Dkt. No. 14, ¶ 2). Moreover, in his second motion for leave to proceed in forma pauperis Mr. McHenry indicates that, as of June 3, 2024, his average monthly account balance had increased to $426.21, and his current account balance had increased to $900.13 (Dkt. No. 17, at 3). For these reasons, the Court denies Mr. McHenry’s current motion for leave to proceed in forma pauperis (Id.).

III. Recommended Disposition Judge Harris in her Recommendation recommends that the Court dismiss Mr. McHenry’s complaint without prejudice for failure to pay the filing fee (Dkt. No. 11, at 3). Mr. McHenry objects to the Recommendation on grounds that: (1) the Recommendation does not find that his petition is frivolous, moot, or otherwise fails to state a claim upon which relief can be granted (Dkt. No. 14, ¶ 1); (2) that he has submitted multiple personal withdrawal requests for the purpose of paying the filing fee, including as recently as March 11, 2024, but that officials have failed to process those requests (Id., ¶ 3); (3) that the record demonstrates that he has sufficient funds to pay the fee if his requests had actually been processed (Id., ¶ 2); and (4) that the Court should therefore grant him a final extension to pay the filing fee (Id., ¶ 4). Along with his objections, Mr. McHenry has filed a “Notice” in the form of a copy of his March 11, 2024, personal withdrawal request for the stated purpose: “To pay for filing fee an application to proceed in forma pauperis papers” (Dkt. No. 13). Mr. McHenry indicates that, should the Court grant his proposed extension, he will reach out to his family members via mail in order to have them pay the filing fee on his behalf

(Dkt. No. 14, ¶ 4). Mr. McHenry supplemented his objections (Dkt. Nos. 12; 13; 15; 16). In the light of Mr. McHenry’s objections and evidence of his repeated attempts to pay the filing fee (Dkt. Nos. 9; 13; 14), the Court declines to adopt the Recommendation (Dkt. No. 11). The Court extends the time for Mr. McHenry to pay the filing fee until 60 days after the date of this Order. The Court also directs that a copy of this Order be provided to the Warden of the Grimes Unit, and the Court directs the Warden of the Grimes Unit to communicate with employees responsible for processing personal withdrawal requests such as Mr. McHenry’s submitted requests in this case to ensure such requests are processed appropriately.

IV. Conclusion For the foregoing reasons, the Court: (1) denies Mr. McHenry’s second motion for leave to proceed in forma pauperis (Dkt. No. 17); (2) declines to adopt Judge Harris’s Recommended Disposition (Dkt. No. 11); (3) orders Mr. McHenry to pay the filing fee within 60 days after the date of this Order; (4) grants Mr. McHenry’s motions for status update (Dkt. Nos. 12; 15) and considers this Order sufficient to apprise Mr. McHenry of the status of his case; and (5) refers the case to Judge Harris for further consideration and screening. The Court also directs that a copy of this Order be provided to the Warden of the Grimes Unit, and the Court directs the Warden of the Grimes Unit to communicate with employees responsible for processing personal withdrawal requests such as Mr. McHenry’s submitted requests in this case to ensure such requests are processed appropriately. It is so ordered this 4th day of February, 2025.

Hustine A.Palun— Kristine G. Baker Chief United States District Judge