McClure v. Benton County Jail et al

Filing 44

ORDER GRANTING MOTION TO DISMISS,CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS 43 . Signed by Judge James D. Todd on 1/14/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MATTHEW KEITH McCLURE,
Plaintiff,
VS.
BENTON COUNTY, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 13-1234-JDT-egb

ORDER GRANTING MOTION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Plaintiff Matthew Keith McClure, a resident of Murfreesboro, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983 on August 14, 2013, while he was confined at the
Benton County Jail in Camden, Tennessee. (ECF No. 1.) On September 3, 2013, Plaintiff
notified the Court that he had been released and provided his new address. (ECF No. 5.)
The Court issued an order on December 4, 2013, granting leave to proceed in forma
pauperis, dismissing portions of the complaint, and directing that process be served on
Defendants Benton County, Patricia Chandler, Advanced Correctional Healthcare, Inc.
(“ACH”), and Crystal White. (ECF No. 8.) Plaintiff was also ordered to promptly notify the
Clerk of any change of address and warned that failure to do so could result in dismissal of
the case without further notice. (Id. at 7.)

On November 10, 2014, Defendants Chandler and Benton County filed a motion to
compel discovery (ECF No. 35), stating that Plaintiff had provided no answers to written
discovery requests served on September 25, 2014. Plaintiff did not file a response, and the
Court granted the motion to compel on December 16, 2014. (ECF No. 40.) Plaintiff was
ordered to provide his discovery answers on or before January 9, 2015, and warned that
failure to do so could result in the imposition of sanctions, including the dismissal of this
case, without further notice. (Id.)
On December 19, 2014, Defendants White and ACH also filed a motion to compel,
stating that Plaintiff had not answered their written discovery requests, which were served
on October, 1, 2014. (ECF No. 41.) Plaintiff failed to respond to that motion as well.
Subsequently, on January 5, 2015, these Defendants filed a Notice (ECF No. 42) stating that
the copy of the motion to compel that counsel had sent to Plaintiff at his address of record,
by certified mail, was returned on December 29, 2014, marked “Return to Sender,”
“Attempted - Not Known,” and “Unable to Forward.” (ECF No. 42-1.)
On January 12, 2015, Defendants Chandler and Benton County filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 41(b), stating that Plaintiff failed to
comply with the Court’s previous order directing him to serve his discovery responses by
January 9, 2015. (ECF No. 43.)
Given Plaintiff’s failure to respond to Defendants’ discovery requests and his failure
to respond to two separate motions to compel, it appears he has abandoned this action. In
addition, as mail sent by counsel to Plaintiff’s address of record was returned, he has also

2

failed to keep the Court advised of his current address. These failures have severely
prejudiced the Defendants in their efforts to defend this case. Therefore, this case is hereby
DISMISSED, pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute and
failure to comply with the Court’s orders.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of
Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800,
803-04 (6th Cir. 1999). Rule 24(a)(3) provides that if a party was permitted to proceed in
forma pauperis in the district court, he may also proceed on appeal in forma pauperis without
further authorization unless the district court “certifies that the appeal is not taken in good
faith or finds that the party is not otherwise entitled to proceed in forma pauperis.” If the
district court denies pauper status, the party may file a motion to proceed in forma pauperis
in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks
appellate review of any issue that is not frivolous. Id. The same considerations that lead the
Court to dismiss this case for failure to prosecute also compel the conclusion that an appeal
would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is,

3

therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

4