Forrester v. Taylor

Filing 26

ORDER GRANTING MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 37, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE 23 20 . Signed by Judge James D. Todd on 4/21/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CHRISTOPHER S. FORRESTER,
Plaintiff,
VS.
EARL TAYLOR,
Defendant.

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No. 14-1330-JDT-egb

ORDER GRANTING MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 37,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

The pro se prisoner Plaintiff, Christopher S. Forrester, who is currently incarcerated at the
Hardeman County Correctional Facility (“HCCF ”) in Whiteville, Tennessee,1 filed this action
pursuant to 42 U.S.C. § 1983 on December 8, 2014, accompanied by a motion for leave to proceed
in forma pauperis. (ECF Nos. 1 & 2.) 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.) On July 29, 2015,
the Court issued an order directing that process be issued for the Defendant, Earl Taylor. (ECF No.
6.) A scheduling order was entered on October 9, 2015. (ECF No. 16.)
Defendant filed a motion to compel discovery pursuant to Federal Rule of Civil Procedure
37 on January 28, 2016. (ECF No. 21.) Defendant stated he served Plaintiff with his First Set of

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When the complaint was filed, Plaintiff was confined at the Whiteville Correctional
Facility. (ECF No. 1 at 2.) He was first transferred to the Morgan County Correctional Complex
(ECF No. 5) and from there to the HCCF (ECF No. 18).

Interrogatories and Requests for Production on December 9, 2015. (ECF No. 21-2.) When Plaintiff
did not serve responses in a timely manner, counsel for Defendant contacted Plaintiff by letter dated
January 13, 2016, advising that if his responses were not received by January 27, 2016, a motion to
compel would be filed (ECF No. 21-3). However, Plaintiff did not response to the letter or submit
answers to the discovery requests.
The Court granted Defendant’s motion to compel on February 23, 2016, ordering Plaintiff
to provide his discovery responses within ten days. (ECF No. 22.) Plaintiff was warned that if he
failed to comply with the order in a timely manner, the Court could impose sanctions pursuant to
Rule 37(b)(2)(A), including the dismissal of this case. (Id. at 2.) However, on March 23, 2016,
Defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 37(b)(2)(A)(v) and
41(b), stating that Plaintiff has failed to comply with the Court’s order to serve his discovery
responses.

Plaintiff has not responded to the Defendant’s motion to dismiss or otherwise

communicated with the Court regarding his refusal to provide discovery.
The Court finds that Plaintiff has acted willfully and in bad faith in failing to provide any
discovery responses and that his failure has prejudiced the Defendant’s ability to defend in this
matter. Plaintiff was warned that failure to comply with the Court’s order compelling discovery
could lead to dismissal of this case. Therefore, the Court finds that dismissal is an appropriate
sanction.
Accordingly, Defendant’s motion to dismiss is GRANTED, and this case is hereby
DISMISSED pursuant to Federal Rules of Civil Procedure 37(b)(2)(A)(v) and 41(b).2 For the

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Defendant filed a motion for judgment on the pleadings on December 16, 2015. (ECF
No. 20.) That motion is DENIED as moot.
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reasons stated in the order compelling discovery, the Court declines to order payment of Defendant’s
reasonable expenses caused by Plaintiff’s failure to provide discovery.
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. The
same considerations that lead the Court to dismiss this case for failure to comply with the Court’s
order to provide discovery also compel the conclusion that an appeal would not be taken in good
faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
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 v. Harry, 716 F.3d 944, 951 (6th Cir.
2013). McGore sets out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b).
Therefore, the Plaintiff 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.
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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