McGill v. Hardeman County Correctional Facility

Filing 12

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 8/2/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TIMOTHY MCGILL,
Plaintiff,
VS.
CORRECTIONS CORPORATION OF
AMERICA,
Defendant.

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No. 15-1181-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 July 22, 2015, Plaintiff Timothy McGill, Tennessee Department of Correction prisoner
number 527572, who is currently an inmate at the Morgan County Correctional Complex in
Wartburg, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a
motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order on July 22,
2015, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the
Prison Litigation Reform Act, 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) On June 13, 2016, the Court
dismissed the complaint for failure to state a claim but granted leave to file an amended complaint
within thirty days. (ECF No. 11.) The order notified Plaintiff that, if he “fails to file an amended
complaint within the time specified, the Court will assess a strike pursuant to 28 U.S.C. § 1915(g)
and enter judgment.” (Id. at 8.)
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 June 13, 2016, order of dismissal.

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. 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.
Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and 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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