Pittman v. Henry County TN Corrections Facility et al

Filing 12

ORDER DISMISSING CASE COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, NOTIFYING PLAINTIFF OF APPELLATE FILING FEE AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER U.S.C. § 1915(g). Signed by Judge James D. Todd on 1/10/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MICHAEL PITTMAN,
Plaintiff,
VS.
HENRY COUNTY,
Defendant,

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No. 15-2705-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE AND
NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER U.S.C. § 1915(g)

On October 27, 2015, Plaintiff Michael Pittman (Pittman), who is incarcerated at the
Henry County Corrections Facility (Jail) in Paris, Tennessee, filed a pro se complaint pursuant to
42 U.S.C. § 1983. (ECF No. 1.) After Pittman filed the required documentation, the Court
granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison
Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 10.) The Clerk shall record
the Defendants as the State of Tennessee, Henry County, the City of Paris, and Captain First
Name Unknown Page. 1

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In an almost identical copy of his complaint filed on November 2, 2015, Plaintiff named
the State of Tennessee as a Defendant. (ECF No.8 at 1.) Plaintiff also named both the “Henry
County Police Department” and the “Sheriff Dept.” as Defendants. (Id.) However, the
complaint itself does not specify whether the officers responding to the incident in question were
with the City of Paris Police Department or the Henry County Sheriff’s Department, or both.
The Court construes any claims against the “Henry County Police Department” as claims against
the City of Paris. The Court also construes the claims against the Sheriff’s Department and the
Jail as claims against Henry County.

I. The Complaint
The complaint alleges that on February 3, 2015, Pittman and his son, Michael Fitch,
drove to the home of Pittman’s fiancée. Pittman’s fiancé was not home, and Fitch got out of the
car and went to the door of the house while Pittman stayed in the car and telephoned his fiancée.
Pittman observed his 14-year-old stepson open the door of the house and then watched while his
son and stepson appeared to get into a minor altercation. (ECF No. 1 at 1.) As Pittman got out
of the car he saw his stepson slam the door on Fitch; his stepson then called 911. When officers
arrived it was determined the argument began because Fitch was banging on the door while
Pittman’s stepson was sleeping and woke him up. (Id. at 1-2.) The officers recommended the
two be separated and left. (Id. at 2.)
On March 3, 2015, Pittman, who was on parole at the time, was served with a warrant for
his arrest for verbal assault. (Id. at 2.) Pittman alleges this resulted in false arrest and a parole
violation charge. (Id. at 3.) At his parole violation hearing on March 17, 2015, Pittman’s parole
officer admitted that after speaking with the district attorney they had agreed that the wrong
person was arrested. (Id.) The charges were dropped on April 30, 2015. (Id.)

However,

Pittman alleges that he continued to be incarcerated at the Jail. (Id.) Although the complaint is
not entirely clear, Pittman appears to allege that this was because of a “parole hold” which is put
in place any time a parolee is arrested. (Id.) Pittman alleges that he contacted the Parole Board
in Nashville, Tennessee, but the parole hold was not lifted and he was still incarcerated as of
September 27, 2015. (Id. at 4.)2

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The complaint is unclear as to how Pittman contacted the Parole Board or whether any
hearing or other proceeding actually occurred before the Board. Pittman does allege the “Parole
Board found no police officers signatures or names on the bogus police reports which was never
filed by myself or my fiance . . . against our children . . . whatsoever.” (Id. at 3-4.) However,
there are insufficient factual details for the Court to determine the meaning of this statement,
2

Pittman further alleges that in April and May 2015, Defendant Page prevented him from
going to the law library. As a result, he alleges he “couldn’t look [his] case up to be filed.” (Id.)
He states that he was told the legal materials at the Jail were outdated and “they never had the
time to take me.” (Id.) Pittman seeks various types of injunctive relief and compensatory
damages. (Id. at 5.)
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 wellpleaded 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
although it is possible Pittman may be referring to what happened at his parole violation hearing,
not to any proceeding before the actual Parole Board.
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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
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.,

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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
The Court construes Pittman’s complaint as having been filed 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
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

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defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
Pittman cannot sue the State of Tennessee under § 1983. 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, 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. Tennessee has not waived its sovereign immunity. See Tenn. Code Ann. § 2013-102(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 v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989).
Plaintiff also has no valid claim against the City of Paris or Henry County. When a
§ 1983 claim is made against a municipality, the court must analyze two distinct issues: (1)
whether plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the
municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S.

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115, 120 (1992). In this case, the second issue is dispositive of any claims against the City of
Paris and Henry County.
A local government “cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); see also Searcy
v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345
(6th Cir. 1994). A municipality cannot be held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell, 436 U.S. at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889
(6th Cir. 1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal
policy or custom, (2) connect the policy to the municipality, and (3) show that his particular
injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir.
2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “Where a
government ‘custom has not received formal approval through the body’s official
decisionmaking channels,’ such a custom may still be the subject of a § 1983 suit.” Alkire, 330
F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or custom “must be ‘the moving
force of the constitutional violation’ in order to establish the liability of a government body
under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk Co. v. Dodson, 454 U.S. at 326 (citation
omitted)).

“[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is actually responsible.’” City of St. Louis
v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80
(1986)) (emphasis in original).

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Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the
municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, No.
3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom,
No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of
Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v.
Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15,
2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom
or practice); Cleary v. Cnty of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich.
Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8
(E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL
1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an
official policy or custom of either the City of Paris or Henry County which caused injury to
Pittman.
To the extent Pittman may seek to be released, the Court has no authority to order such a
remedy under §1983.

When a prisoner seeks to challenge the validity or duration of his

confinement, his sole remedy is a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411
U.S. 475, 500 (1973); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)
(“Challenges to the validity of any confinement or to particulars affecting its duration are the
province of habeas corpus.”).
Pittman’s claim that he was not allowed access to legal materials, which prevented him
from filing a case, implicates the First Amendment right “to petition the Government for a

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redress of grievances,” U.S. Const., amend. I, which is made applicable to the states by the
Fourteenth Amendment. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Bounds
v. Smith, 430 U.S. 817, 822 (1977).
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, 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”).
In order to establish 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) (citing Lewis v. Casey, 518 U.S. at 351-53); see also Hadix v. Johnson, 182
F.3d 400, 405-06 (6th Cir. 1999) (explaining how Lewis altered the “actual injury” requirement
previously applied 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).

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Although Pittman alleges that the lack of legal materials prevented him from “look[ing]
his case up to be filed,” he does not further describe the case to which he refers. If he is referring
to the present case, he was able to file it in a timely manner even without any legal materials. He
does not allege that he actually attempted to file any other type of court proceeding which was
filed late or dismissed. The Sixth Circuit has stated that “[b]efore filing an ‘access to courts’
claim, a plaintiff must make some attempt to gain access to the courts; otherwise, how is th[e]
court to assess whether such access was in fact ‘effective’ and ‘meaningful’?” Swekel v. City of
River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997) (quoting Bounds, 430 U.S. at 822). “A
plaintiff cannot merely guess that a . . . remedy will be ineffective because of a defendant’s
actions. Rather the plaintiff must present evidence that the defendants’ actions actually rendered
any available . . . remedy ineffective.” Id. Therefore, Pittman has not sufficiently alleged a
claim that he was denied access to the courts.
For the foregoing reasons, Pittman’s complaint is subject to dismissal in its entirety for
failure to state a claim upon which relief can be granted.
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

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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.”).
In this case, the Court concludes that leave to amend is not warranted.
IV. Conclusion
The Court DISMISSES Pittman’s complaint 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.
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), that any appeal in this matter by Plaintiff would not be taken in good faith.

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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, 716 F.3d at 951. 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.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the
fourth dismissal of one of his cases as frivolous or for failure to state a claim.3 This “strike” shall
take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the ground that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Consequently, Plaintiff is warned that he will be barred from filing any
further actions in forma pauperis while he is a prisoner within the meaning of 28 U.S.C.
§ 1915(h) unless he is in imminent danger of serious physical injury.

3

Under those

Pittman previously filed Pittman v. Cox, No. 15-1290-JDT-egb (W.D. Tenn. Oct. 27,
2016) (dismissed for failure to state a claim), Pittman v. Henry Cnty., No. 15-cv-1284-JDT-tmp
(W.D. Tenn. Oct. 26, 2016) (dismissed for failure to state a claim), and Pittman v. Henry Cnty.,
No. 15-1262-JDT-egb (W.D. Tenn. Oct. 25, 2016) (dismissed for failure to state a claim).
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circumstances, if any civil action filed by Plaintiff is not accompanied either by the civil filing
fee or by allegations sufficient to show that, at the time of filing the action, he is in imminent
danger of serious physical injury, the complaint will be filed, but Plaintiff will be required to
remit the full civil filing fee. If he fails to do so, the case will be dismissed, and the filing fee
will be assessed from his inmate trust account.
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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