Graves v. Lindamood et al

Filing 16

ORDER DISMISSING CLAIMS, DENYING MOTION TO HOLD DEFENDANTS LIABLE FOR PLAINTIFFS SAFETY & CARE (ECF NO. 8 ), DENYING MOTION NOT TO BE PLACED IN IC UNIT (ECF NO. 9 ), DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (ECF NO. 10 ), DENYING MOTION FOR PRELIMINARY INJUNCTIVE ORDER (ECF NO. 11 ), DENYING MOTION FOR ORDER TO HOLD DEFENDANT LIABLE (ECF NO. 13 ), DENYING LEAVE TO AMEND, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 9/18/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MARESSE GRAVES,
Plaintiff,
VS.
CHERRY LINDAMOOD, et al.,
Defendants.

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No. 14-1310-JDT-egb

ORDER DISMISSING CLAIMS,
DENYING MOTION TO HOLD DEFENDANTS LIABLE FOR
PLAINTIFF’S SAFETY & CARE (ECF NO. 8),
DENYING MOTION NOT TO BE PLACED IN IC UNIT (ECF NO. 9),
DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (ECF NO. 10),
DENYING MOTION FOR PRELIMINARY INJUNCTIVE ORDER (ECF NO. 11),
DENYING MOTION FOR ORDER TO HOLD DEFENDANT LIABLE (ECF NO. 13),
DENYING LEAVE TO AMEND,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On November 13, 2014, Plaintiff Maresse Graves (“Graves”), who was formerly an
inmate at the Whiteville Correctional Facility (“WCF”) in Whiteville Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos.
1 & 2.) On November 14, 2014, this Court ordered Graves to comply with 28 U.S.C. §
1915(a)(2) or pay the civil filing fee. (ECF No. 4.) In response, Graves filed a new motion to
proceed in forma pauperis on December 3, 2014. (ECF No. 5.) In an order issued July 16, 2015,
the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to
the Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.)
The Clerk shall record the defendants as WCF Warden Cherry Lindamood, WCF Case Manager

Ms. First Name Unknown (FNU) Jackson, Tennessee Department of Corrections (“TDOC”)
Commissioner Derrick Schofield, WCF Inmate Classification Coordinator Mrs. FNU Trotter,
WCF Unit Manager Mrs. FNU White, WCF Prison Librarian Mr. FNU Gray, WCF Assistant
Warden Robert Adams, and TDOC Assistant Commissioner of Operations Jason Woodall, who
was sued as “J. Woodall”.
I The Complaint
Graves complains that Defendants are being deliberately indifferent to his personal safety
by their failure to place him in protective custody, that he is being denied access to the courts,
and that there has been a failure to train, supervise, and manage employees (Comp. 3, ECF No.
1.)
Graves alleges that his life is in imminent danger due to a monetary hit put on his life by
the Crips gang. (Id. at 5.) Graves states that he was a member of the Crips gang, but after he
filed a lawsuit about prison conditions, some Crips gang member put a hit on his life. (Id. at 7.)
When Graves arrived at WCF, which is managed by Corrections Corporation of America
(“CCA”), he told Defendant White as well as the following people, who are not a party to this
lawsuit: Case Manager Fuller, Case Manager Cross, and Chief of Unit Manager Mitter, that there
was a monetary gang hit placed on his life. (Id. at 5.) Graves informed the aforementioned
people that he could not live in his assigned compound and he needed to be immediately placed
in protective custody. (Id.) Graves states that he was moved from Unit H to Unit I. (Id.)
Graves was in the general population for seven months. (Id.)
Graves alleges after the seven months, he began to overhear inmates saying that he was
going to be jumped and stabbed. (Id.) On October 3, 2014, Graves went to medical and
requested protective custody. (Id.) Graves states that he was placed on Protective Custody

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Investigation where Defendant Jackson was the hearing officer. (Id.) Graves alleges that he
informed Defendant Jackson about the monetary hit, but she refused to look at Graves’s
documents provided with his statement. (Id. at 6.) Graves was denied protective custody. (Id.)
Graves states that he refused his cell assignment due to his life being in danger and was written
up for refusing the cell assignment; regardless, he was moved to a cell which was not protective
custody. (Id.)
From October 15, 2014, to October 31, 2014, Graves states that he spoke with
Defendants Lindamood, Trotter, and White about his need for protective custody, but he was not
placed in protective custody. (Id.) Graves alleges that on October 15, 2014, he submitted an
emergency inmate grievance describing his issues and the need for protective custody. (Id.)
Graves further alleges that Officer Pruitt, who is not a party to this lawsuit, opened the letter
without his permission. Then Officer Pruitt gave an unnamed inmate two pieces of Graves’s
outgoing mail causing a rumor to start that he was snitching. (Id. at 6-7.)
Graves states that at the end of October 2014, he and other unnamed inmates were told
that they were being moved to IC unit. (Id. at 7.) Graves alleges that he told Sergeant Amos,
who is not a party to this complaint, and all the other Defendants, except for Defendant
Schofield, that he could not be moved to that place because his life is in danger. (Id.) Graves
states that he was feeling depressed and hopeless causing him to cut himself in a suicide attempt
resulting in his being placed in medical. (Id. at 7.)
Graves states that he cannot live or be housed in the general population, and he has told
all the defendants, expect for Defendants Schofield and Woodall. (Id.) Graves further provides
that there are a lot of Crips gang members in Unit IC and the WCF in general and that he has
received two disciplinary reports for refusing cell assignments. (Id. at 8.) Graves also alleges

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that there have been rumors about his sexual orientation causing sexual predators to come after
him. (Id.)
Graves further alleges that around October 18 through 22, 2014, he requested a § 1983
complaint form, but was not given one by Defendant Gray which resulted in his having to write
his complaint by hand. (Id.) Graves states that he is being prohibited to follow court procedures.
(Id.)
Graves seeks a preliminary and permanent injunction placing him in segregation
restrictive housing, moving him into protective custody with no cellmate until relocated to
another prison, stopping all attempts to place him in the WCF general housing or IC Unit, and
transfer to another prison; an order that defendants not hinder his access to the courts; and a
removal of the two cell assignment disciplinary reports. (Id.)
II. Analysis
A.

Screening and Standard
The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2)

seeks monetary relief from a defendant who is immune from such

relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies standards under Federal Rule of Civil Procedure 12(b)(6), as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-

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pleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the]
complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original).
“[P]leadings that . . . are no more than conclusions . . . are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule
8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without
some factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on
which the claim rests.”).
“A complaint can be frivolous either factually or legally. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Hill, 630 F.3d
at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief.
Statutes allowing a complaint to be dismissed as frivolous give “judges not only
the authority to dismiss a claim based on an indisputably meritless legal theory,
but also the unusual power to pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are clearly baseless.” Neitzke,
490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a
dismissal for failure to state a claim, where a judge must accept all factual
allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that are
reviewed for frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners

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are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 2011 WL
285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to
comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleading’”) (quoting Clark v. Nat’l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original); Payne v. Sec’y of Treas., 73 F.
App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s
claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation
to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506,
510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would
transform the courts from neutral arbiters of disputes into advocates for a particular party. While
courts are properly charged with protecting the rights of all who come before it, that
responsibility does not encompass advising litigants as to what legal theories they should
pursue.”).
B.

§ 1983 Claim
Graves filed his eleven page handwritten complaint pursuant to actions under 42 U.S.C.

§ 1983. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
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declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
1.

Mootness

After the filing of the complaint, Graves submitted a change of address showing that he is
now incarcerated in West Tennessee State Penitentiary (“WTSP”). (ECF No. 54.) Therefore,
Graves’s prayer for temporary and permanent injunctive relief concerning his protective custody
status at WCF, in which he seeks immediate transfer to protective custody or transfer to another
prison, are moot. Moore v. Curtis, 68 F. App’x 561, 562 (6th Cir. 2003) (claims for declaratory
and injunctive relief against prison staff moot when inmate transferred to another facility); Kensu
v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (same); Tramber v. Pleasant, No. 4:12CV-P31-M,
2012 WL 4594339, at *5 (W.D. Ky. Oct. 2, 2012) (inmate’s claim for a transfer and medical care
moot when he was transferred to another facility). The change of residence also serves to render
Graves’s Motion to Hold Defendants Liable for Plaintiff’s Safety and Care (ECF No. 8.), Motion
for Court Order Not to be Placed in IC Unit without Protective Custody Status (ECF No. 9.),
Motion for Temporary Restraining Order and Rule to Show Cause (ECF No. 10.), and Motion
for Preliminary Injunctive Order Prohibiting Defendants from Placing Plaintiff in IC Unit (ECF
No. 11), and Motion for Court Order to Hold Defendants and Their Agents Liable for Plaintiff’s
Safety (ECF No. 13) be DENIED as MOOT.
2.

Twombly Standard Claims against Defendant Schofield
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The complaint contains no factual allegations against Defendant Schofield. When a
complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
3.

Claims against Defendants in their Official Capacity

Graves is suing all Defendants in their official and individual capacity. Defendants
Schofield and Woodall are employed by the TDOC. “[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s office.
As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989) (citation omitted).

Any claims against Defendants Schofield and

Woodall in their official capacity are asserted against the State of Tennessee.
The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment
has been construed to prohibit citizens from suing their own states in federal court. Welch v. Tex.
Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); Employees of Dep’t of Pub. Health & Welfare v. Mo.
Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection &
Advocacy v. Stewart, ___ U.S. ___, ___, 131 S. Ct. 1632, 1638 (2011) (“A State may waive its
sovereign immunity at its pleasure, and in some circumstances Congress may abrogate it by
appropriate legislation. But absent waiver or valid abrogation, federal courts may not entertain a
private person’s suit against a State.”) (citations omitted).

By its terms, the Eleventh

Amendment bars all suits, regardless of the relief sought. Pennhurst, 465 U.S. at 100-01.

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Tennessee has not waived its sovereign immunity. Tenn. Stat. Ann. § 20-13-102(a). Moreover,
a state is not a person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the
Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71.
Graves sues CCA employees Defendants Jackson, Trotter, White, Gray, and Adams in
their individual and official capacity. The official capacity claims against these CCA employees
must be construed as claims against CCA itself. Cf. Will, 491 U.S. at 71.

However, the

complaint does not assert a valid claim against CCA. “A private corporation that performs the
traditional state function of operating a prison acts under color of state law for purposes of §
1983.” Thomas v. Coble, 55 F. App’x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of
Am., 102 F.3d 810, 814 (6th Cir. 1996)); see also Parsons v. Caruso, 491 F. App’x 597, 609 (6th
Cir. 2012) (corporation that provides medical care to prisoners can be sued under § 1983). The
Sixth Circuit has applied the standards for assessing municipal liability to claims against private
corporations that operate prisons or provide medical care to prisoners. Thomas, 55 F. App’x at
748-49; Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App’x 386, 388 (6th
Cir. 2001). CCA “cannot be held liable under a theory of respondeat superior.” Braswell v.
Corr. Corp. of Am., 419 F. App’x 622, 627 (6th Cir. 2011). Instead, to prevail on a § 1983 claim
against CCA, Graves “must show that a policy or well-settled custom of the company was the
‘moving force’ behind the alleged deprivation” of his rights. Id. The complaint does not allege
that Graves suffered any injury because of an unconstitutional policy or custom of CCA
4.

Protective Custody Claims

Graves believed that his life was endangered by his cell assignment in IC Unit and in the
WCF general population due to the alleged hit on his life by gang members. His complaint,
however, fails to articulate a credible threat that had been made to Graves. This Court cannot

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issue orders based on mere theoretical probabilities and the facts as alleged show no harm to
Graves. The complaint does not allege any deliberate indifference on the part of any defendant.
The Supreme Court has repeatedly observed that prisons present an "ever-present potential for
violent confrontation." Whitley v. Albers, 475 U.S. 312, 321 (1986) (quoting Jones v. No. Car.
Prisoner’s Labor Union, Inc., 433 U.S. 119, 132 (1977)).

See also, Wolff v. McDonnell, 418

U.S. 539, 561-62 (1974) (prisons are populated by violent offenders, causing unremitting tension
among inmates and between inmates and guards).
This Court does not have the authority to supervise classification and assignment of
inmates. An inmate does not have a protected right to be assigned to a particular prison, security
classification, or housing assignment. Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v.
Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976). See Sandin v. Conner,
515 U.S. 472, 484-87 (1995) (confinement in particular part of prison or jail does not implicate
due process absent "atypical and significant hardship" "in relation to the ordinary incidents of
prison life").
Graves did not suffer any injury from his residence at WCF or in IC Unit. Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Peck v. Mortimer, 650 F.2d 929, 930 (8th Cir. 1981);
see Forbes v. Trigg, 976 F.2d 308, 312 (7th Cir. 1992) (dismissing as moot habeas petition
because petitioner had been released from segregation); Thompson v. Smith, 719 F.2d 938, 94041 (8th Cir. 1983) (dismissing as moot habeas petition alleging harassment because petitioner
was transferred to another prison).

Plaintiff must show "a reasonable expectation or a

demonstrated probability that the same controversy will recur." Id. See Thompson v. Smith, 719
F.2d 938 (8th Cir. 1983); Peck v. Mortimer, 650 F.2d 929 (8th Cir. 1981); Willis v. Ciccone, 506
F.2d 1011 (8th Cir. 1974) (all holding moot a conditions of confinement challenge because the

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prisoner was no longer confined in the allegedly offending institution). Graves does not allege
any facts that would support a claim of reasonable expectation or demonstrated probability that
this same controversy will recur.
5.

Claims for Issuance of Disciplinary Reports

Graves also has no claim for a violation of due process in connection with the issuance of
disciplinary reports.

Graves attached the disciplinary reports from October 14, 2014, and

October 25, 2014, both stating that Graves refused his cell assignment. (Compl. 1 & 4, ECF No.
1-2.) Graves states in his complaint that he refused his cell assignment. (Compl. 6, ECF No. 1.)
An inmate’s right to due process arises only if a restriction implicates a constitutionally protected
liberty interest. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In Wolff v. McDonnell, 418
U.S. 539 (1974), the Supreme Court held that, where a prisoner is charged with a disciplinary
offense that may result in loss of good time credit, due process requires certain procedural
protections. Id. at 563-66. In addition, a disciplinary proceeding may give rise to a protected
liberty interest if the restrictions imposed constitute an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995).

In general, an inmate does not have a liberty interest in a particular security

classification or in freedom from segregation. Olim v. Wakinekona, 461 U.S 238, 245 (1983).
In this case, Graves’s own documentation shows that he received a disciplinary report for actions
he took. There are no allegations that he did not refuse the cell assignment. Any loss of good
time credit or punishment received was not the type of “atypical and significant hardship”
contemplated in Sandin.
6.

First Amendment Claims

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Graves asserted that his access to the court has been restricted; however, the complaint
does not assert a valid claim for denial of Graves’s First Amendment right of access to the
courts. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Bounds v. Smith, 430
U.S. 817, 821 (1977) (“It is now established beyond doubt that prisoners have a constitutional
right of access to the courts.”). The Supreme Court has held that
“[t]he fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” Bounds, 430 U.S. at 828. However, Bounds
does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions
to slip-and-fall claims. The tools it requires to be provided are those that the
inmates need in order to attack their sentences, directly or collaterally, and in
order to challenge the conditions of their confinement. Impairment of any other
litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996); see also Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc) (inmates’ First Amendment right of access to the courts “extends to
direct appeal, habeas corpus applications, and civil rights claims only”).
To have standing to pursue a First Amendment claim that he was denied access to the
courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’ i.e., that the
conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers v. Hawley, 14 F.
App’x 403, 409 (6th Cir. 2001) (citation omitted); see also Hadix, 182 F.3d at 405-06
(explaining how Lewis altered the “actual injury” requirement previously articulated by the Sixth
Circuit). “Actual injury” can be demonstrated by “the late filing of a court document or the
dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). The complaint does not allege that Graves suffered any actual injury as he was able to
file this complaint, proceed in forma pauperis, and file numerous other motions.

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III. Standard for Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb.
22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some
form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).
Leave to amend is not required where a deficiency cannot be cured. Brown, 2013 WL 646489, at
*1; Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of
course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically
must be reversed. If it is crystal clear that the plaintiff cannot prevail and that amending the
complaint would be futile, then a sua sponte dismissal may stand.”); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints
subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would
be inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with
the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right of access to the courts.”).
IV. Appeal Issues
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Plaintiff in this case would be taken in good faith. 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.

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See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that
lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an
appeal would not be taken in good faith.
V. Conclusion
The Court DISMISSES Graves’s complaint as to all Defendants for failure to state a
claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b(1). Leave to Amend is DENIED because the deficiencies in Graves’s complaint cannot
be cured. It is also CERTIFIED, pursuant to 28 U.S.C. §1915(a)(3), that any appeal in this
matter by Graves would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Graves
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good
faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), partially overruled on other grounds by LaFountain, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, Graves
is instructed that if he wishes to take advantage of the installment procedures for paying the
appellate filing fee, he must comply with the procedures set out in McGore and § 1915(a)(2) by
filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust
account for the six months immediately preceding the filing of the notice of appeal.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Graves, 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.

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IT IS SO ORDERED.
s/James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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