Johnson v. Haywood County Jail

Filing 9

ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 2/4/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ROBERT WILLIAM JOHNSON,
Plaintiff,
VS.
HAYWOOD COUNTY JAIL,
Defendant.

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No. 14-1271-JDT-egb

ORDER DIRECTING ENTRY OF JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On October 9, 2014, Plaintiff Robert William Johnson, who was, at that time,
incarcerated at the Haywood County Jail in Brownsville, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 and a motion for leave to proceed in forma pauperis. (ECF
Nos. 1& 2.) In an order issued on October 14, 2014, the Court granted leave to proceed in
forma pauperis and assessed the civil filing fee pursuant to 28 U.S.C. §§ 1915(a)-(b). (ECF
No. 4.) Plaintiff subsequently notified the Court that he had been released and provided his
new address. (ECF No. 5.)1
On December 7, 2015, the Court dismissed the complaint for failure to state a claim
but granted leave to file an amended complaint. (ECF No. 8.) Plaintiff was instructed that
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On October 5, 2015, the Court directed Plaintiff to either pay the entire filing fee or submit a non-prisoner
in forma pauperis affidavit. (ECF No. 6.) Plaintiff complied with that order by submitting the appropriate affidavit
on October 19, 2015. (ECF No. 7.)

any amended complaint must be filed within thirty days and that, should he fail to file an
amended complaint within the time specified, the Court would assess a “strike” pursuant to
28 U.S.C. § 1915(g) and enter judgment. (Id. at 9). However, Plaintiff has not filed an
amended complaint, and the time within which to do so has expired. Therefore, judgment
will be entered in accordance with the December 7, 2015, order of dismissal.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. A non-prisoner desiring to proceed on
appeal in forma pauperis must obtain pauper status under Federal Rule of Appellate
Procedure 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999).
However, 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. It would be inconsistent for a district
court to determine that a complaint should be dismissed prior to service on the defendants,
but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman,
722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to

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dismiss this case for failure to state a claim also compel the conclusion that an appeal would
not be taken in good faith.
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a), that any
appeal in this matter by Plaintiff would not be taken in good faith. Leave to proceed on
appeal in forma pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of
appeal, he must also pay the full $505 appellate filing fee or file a motion for leave to appeal
in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the
first dismissal of one of his cases as frivolous or for failure to state a claim. This “strike”
shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64
(2015).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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