Powell v. Woodard et al

Filing 14

ORDER DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 9/20/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JOSEPH POWELL,
Plaintiff,
VS.
JASON WOODARD, ET AL.,
Defendants.

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No. 16-1007-JDT-cgc

ORDER DISMISSING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On January 13, 2016, Plaintiff Joseph Powell, who is currently an inmate at the
Trousdale Turner Correctional Center (TTCC) in Hartsville, 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 subsequently 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. 4.) Powell’s allegations stem from his
previous incarceration in the Hardeman County Correctional Facility (HCCF) in Whiteville,
Tennessee. The Clerk shall record the Defendants as Jason Woodard, Deputy Commissioner
of Operations for the Tennessee Department of Correction (TDOC); former HCCF Warden
Michael Donahue; current HCCF Warden Grady Perry; former HCCF Chief Unit Manager

First Name Unknown (FNU) Mills; HCCF Unit Manager FNU Robertson;1 Sergeant (Sgt.)
FNU Golden; Case Manager FNU Marshall; Acting Unit Manager FNU Taylor; and
Maintenance Supervisor David McDonald. The Defendants are sued in both their individual
and official capacities.
I. The Complaint
Powell alleges that in October 16, 2014, he filed an emergency grievance stating that
due to his overpowering body odor, he feared for his safety from other inmates who did not
want to share a cell with him. (ECF No. 1 at 4; see also Ex. A, ECF No. 1-1.) Powell
explained his situation to Defendant Robertson in January 2014 and again on October 12,
2014. (Id.) Powell contends that despite Defendant Robertson’s knowledge that he would
more than likely be harmed by her refusal to put Powell in a single cell, Defendant Robertson
refused to assist him and used her authority to harass Powell with frequent cell changes
where he was put with informants and other incompatible inmates. (Id., see also Ex. B, ECF
No. 1-2.) Powell further contends that Defendant Mills, who was aware of Powell’s problem
because she responded to the grievances, did not correct the problem, but rather relied upon
informal policies and customs of HCCF to routinely deny grievances. (Id. at 5.) Similarly,
Powell alleges that, based on HCCF institutionalized policy of routinely denying inmate
grievances, on November 10, 2014, Defendant Donahue refused to use his authority to

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On February 5, 2016, Powell filed a motion to change Defendant Robinson’s name to
Robertson. (ECF No. 5.) Powell’s motion is GRANTED. The CLERK is directed to modify the
docket to reflect that the Defendant’s correct name is Robertson.
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correct the problem. (Id.) Plaintiff further states that on December 1, 2014, Defendant
Woodard “rubber-stamped” the denial of his grievance. (Id.)
On June 2, 2015, Powell and his cellmate had an altercation allegedly because of
Powell’s body odor, and Powell made a request to Defendant Golden that either he or his
cellmate be moved. (Id.) Powell alleges that Defendant Golden advised him that if he or his
cellmate requested another cell change, she would write them up on a disciplinary charge.
(Id.) On June 17, 2015, after Powell and his cellmate had another argument, Powell alleges
that he asked Defendants Marshall and Taylor to either move him to another cell or place him
in protective custody. (Id.) Powell told Defendants Marshall and Taylor that other inmates
did not want to share a cell with him due to his body odor. (Id. at 6.) However, Defendants
Marshall and Taylor did not grant his request for a cell change and instead allegedly
threatened Powell with a disciplinary write-up. (Id.) On August 19, 2015, Defendant Perry
again denied a grievance filed by Plaintiff, refusing to discipline Defendants Marshall,
Taylor, or Golden and refusing to grant Powell single-cell status. (Id., see also Ex. B, ECF
No. 1-2) On August 27, 2015, Defendant Woodard also denied Plaintiff’s grievance. (Id.)
On July 8, 2015, Powell filed a grievance about the cold temperature in his housing
unit, stating that inmates were wearing coats and that the temperature issue had existed for
several years. (Id., see also Ex. C, ECF No. 1-3.) Powell alleges that since filing the
grievance several of the pods he lived in have been extremely cold, both in his cell and in the
common areas. (Id.) Powell further alleges that Defendant McDonald, the maintenance

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supervisor, is aware of the cold but allows his staff to operate the air conditioning unit when
they should be heating the pods. (Id.)
Powell seeks a declaratory judgment that the denial of his requests for single-cell
status by Defendants Robertson, Mills, Donahue, Perry, and Woodard was a denial of due
process and the right to live in a safe environment; that the failure of Defendants Golden,
Marshall, and Taylor to separate Powell from his cellmate or place him in protective custody
status deprived also was a denial of due process and the right to live in an unthreatening
environment; and that the cold nature of the pods denied Powell a safe living environment.
(Id. at 7.)
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)
such relief.

seeks monetary relief from a defendant who is immune from

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 standards under Fed. R. Civ. P. 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), are
applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-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.
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Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). “[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.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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

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(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however,
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, 415 F. App’x 608,
612, 613 (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))); 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.”).
Plaintiff filed his complaint on the court-supplied form for 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
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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 § 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).
The claims against the Defendants in their official capacities are construed as claims
against their employers. For Defendant Woodard such claims are against TDOC, for all
other defendants the claims are against Corrections Corporation of America/CoreCivic,2
which operates the HCCF.
Claims against TDOC are, in turn, construed as claims against the State of
Tennesseee. However, Plaintiff cannot sue the State of Tennessee under 42 U.S.C. § 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

2

Corrections Corporation of America is now known as CoreCivic. See
www.corecivic.com.
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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.
§ 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 v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989).
The complaint also does not allege a viable claim against CoreCivic. “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 8178

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 CoreCivic,
Powell “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 adequately allege that Powell suffered an injury because of
an unconstitutional policy of custom of CoreCivic. Although Powell claims that the
Defendants were following an institutionalized policy of denying grievances, such a
conclusory allegation is insufficient to establish that CoreCivic had an unconstitutional
policy, that the policy was applied to Powell, and that the policy was a “moving force”
behind the specific unconstitutional and unlawful acts alleged in the complaint.
Additionally, Powell does not have a claim against Defendants Mills, Donahue and
Woodard for their roles as supervisors. Section 1983 will not support a claim based upon a
theory of respondeat superior alone. Polk County v. Dodson, 454 U.S. 312, 325 (1981);
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). A plaintiff must allege that a
defendant official was personally involved in the unconstitutional activity of a subordinate
in order to state a claim against such a defendant. Dunn v. State of Tennessee, 697 F.2d 121,
128 (6th Cir. 1982). A failure to supervise, control or train an individual is not actionable
“unless the supervisor ‘either encouraged the specific incident of misconduct or in some
other way directly participated in it.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
“At a minimum a plaintiff must show that the official least implicitly authorized, approved,
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or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Hays v.
Jefferson Co., Ky, 668 F.2d 869, 874 (6th Cir. 1982). Thus, the participation of Defendants
Mills, Donahue, and Woodard in processing or denying Powell’s grievances cannot, by itself,
constitute sufficient personal involvement to state a claim of constitutional dimension.
Simpson v. Overton, 79 F. App’x. 117, 2003 WL 22435653 (6th Cir. 2003); see also Martin
v. Harvey, 14 F. App’x. 307, 2001 WL 669983, at *2 (6th Cir. 2001) (“The denial of the
grievance is not the same as the denial of a request to receive medical care.”). Section 1983
liability may not be imposed against a defendant for “a mere failure to act” based upon
information contained in a grievance. See Shehee v. Luttrell, 199 F.3d at 300; Lillard, 76
F.3d at 727-28.
Powell claims that Defendants exposed him to unsafe living conditions due to his cell
assignment as well as the extremely cold temperatures. For a convicted prisoner, such claims
arise under the Eighth Amendment, which prohibits cruel and unusual punishments. See
generally Wilson v. Seiter, 501 U.S. 294 (1991).
An Eighth Amendment claim consists of both objective and subjective components.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);
Wilson v. Seiter, 501 U.S. 294, 298 (1991); Williams v. Curtin, 631 F.3d at 383; Mingus v.
Butler, 591 F.3d 474, 479-80 (6th Cir. 2010). The objective component requires that the
deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8;
Wilson, 501 U.S. at 298.

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To satisfy the objective component of an Eighth Amendment claim, a prisoner must
show that he “is incarcerated under conditions posing a substantial risk of serious harm,”
Farmer, 511 U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir.
2005), or that he has been deprived of the “minimal civilized measure of life’s necessities,”
Wilson, 501 U.S. at 298 (internal quotation marks omitted). See also Hadix v. Johnson, 367
F.3d 513, 525 (6th Cir. 2004) (“To succeed in an Eighth Amendment challenge, [a prisoner]
must establish that . . . a single, identifiable necessity of civilized human existence is being
denied . . . .”). The Constitution “does not mandate comfortable prisons.” Wilson, 501 U.S.
at 298 (internal quotation marks and citation omitted). “[R]outine discomfort is part of the
penalty that criminal offenders pay for their offenses against society.” Hudson, 503 U.S. at
9 (internal quotation marks and citation omitted). Thus, “extreme deprivations are required
to make out a conditions-of-confinement claim.” Id. at 9.
In considering the types of conditions that constitute a substantial risk of serious harm,
the Court evaluates not only the seriousness of the potential harm and the likelihood that the
harm will actually occur, but evidence that unwilling exposure to that risk violates
contemporary standards of decency, i.e., that society does not choose to tolerate the risk in
its prisons. Helling v. McKinney, 509 U.S. 25, 36 (1993). The Supreme Court has also
emphasized that prisoners can rarely establish an Eighth Amendment violation from a
combination of conditions of confinement that, in themselves, do not rise to the level of a
constitutional violation:

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Some conditions of confinement may establish an Eighth Amendment violation
“in combination” when each would not do so alone, but only when they have
a mutually enforcing effect that produces the deprivation of a single,
identifiable human need such as food, warmth, or exercise—for example, a
low cell temperature at night combined with a failure to issue blankets. To say
that some prison conditions may interact in this fashion is a far cry from saying
that all prison conditions are a seamless web for Eighth Amendment purposes.
Nothing as amorphous as “overall conditions” can rise to the level of cruel and
unusual punishment when no specific deprivation of a single human need
exists.
Wilson, 501 U.S. at 304-05 (citation omitted); see also Thompson, 29 F.3d at 242 (“Eighth
Amendment claims may not be based on the totality of the circumstances, but rather must
identify a specific condition that violates” a particular right); Carver v. Knox Cnty., Tenn.,
887 F.2d 1287, 1294 (6th Cir. 1989) (same).
To establish the subjective component of an Eighth Amendment violation, a prisoner
must demonstrate that the official acted with the requisite intent, that is, that he had a
“sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; see also Wilson, 501 U.S.
at 297, 302-03. The plaintiff must show that the prison officials acted with “deliberate
indifference” to a substantial risk that the prisoner would suffer serious harm. Farmer, 511
U.S. at 834; Wilson, 501 U.S. at 303; Helling, 509 U.S. at 32; Woods v. Lecureux, 110 F.3d
1215, 1222 (6th Cir. 1997); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996);
Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 79 (6th Cir. 1995). “[D]eliberate indifference
describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835.
Thus,
[a] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows
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of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.
This approach comports best with the text of the Eighth Amendment as our
cases have interpreted it. The Eighth Amendment does not outlaw cruel and
unusual “conditions”; it outlaws cruel and unusual “punishments.” An act or
omission unaccompanied by knowledge of a significant risk of harm might
well be something society wishes to discourage, and if harm does result society
might well wish to assure compensation. The common law reflects such
concerns when it imposes tort liability on a purely objective basis. . . . But an
official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment.
Id. at 837-38 (emphasis added; citations omitted); see also Garretson v. City of Madison
Heights, 407 F.3d 789, 796 (6th Cir. 2005) (“If the officers failed to act in the face of an
obvious risk of which they should have known but did not, then they did not violate the
Fourteenth Amendment.”). The subjective component must be evaluated for each defendant
individually. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011); see also id. at 768 (“[W]e
must focus on whether each individual Deputy had the personal involvement necessary to
permit a finding of subjective knowledge.”).
Powell claims that the Defendants were aware that inmates had an issue with his body
odor but failed to move him into a single cell. However, other than having arguments with
his cellmate, Powell does not allege that he suffered any actual harm as a result of his cell
assignment or the denial of his request. In the attached exhibits, Powell is encouraged to file
a medical claim due to his odor problem or seek to move to an over-forty floor. Powell does
not allege that he took either step. Similarly, with regard to the cold temperatures, Powell

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does not allege that he suffered any harm due to the cold temperatures, other than having to
wear a coat.
To the extent that Plaintiff seeks reassignment to a different cell, the Court has no
authority to supervise the 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”). Furthermore, as stated above, Powell has been transferred from the HCCF to the
TTCC.
III. 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
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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 Powell’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. Plaintiff’s motion to issue summonses (ECF No. 12) is also 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.
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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.
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
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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