Murrell v. Donahue et al

Filing 7

ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 6/8/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ERIK JAMES MURRELL,
Plaintiff,
VS.
MICHAEL DONAHUE, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 15-1047-JDT-egb

ORDER DIRECTING ENTRY OF JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On March 4, 2015, Plaintiff Erik James Murrell, who is incarcerated at the Hardeman County
Correctional Facility 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 March 9, 2015, the Court issued
an order granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to
28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.)
On April 12, 2016, the Court issued an order dismissing the complaint for failure to state a
claim but granting leave to amend within thirty days. (ECF No. 6.) Plaintiff was warned that failure
to file an amendment would result in the entry of judgment and assessment of a “strike” pursuant
to 28 U.S.C. §1915(g). (Id. at 11.) 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
April 12, 2016, order of dismissal.

For the reasons stated in the order of dismissal, it is CERTIFIED, pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a), that an appeal would not be taken in
good faith.
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, Plaintiff is instructed
that if files a notice of appeal and wishes to take advantage of the installment procedures for paying
the $505 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 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. See 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

2