Elmore v. Tennessee Department of Correction et al
ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 8/21/17. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
NATHANEAL JOEL ELMORE,
CHARLOTTE BURNS, ET AL.,
ORDER DIRECTING ENTRY OF JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On May 13, 2016, the pro se prisoner Plaintiff, Nathaneal Joel Elmore, filed a
complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed
in forma pauperis. (ECF Nos. 1 & 2.) In an order issued May 16, 2016, 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. 4.)
On May 17, 2017, the Court dismissed the complaint for failure to state a claim but
granted leave to file an amended complaint within 30 days. (ECF No. 15.) 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 19-20.) The Court subsequently granted Plaintiff two extensions of time in which to file an
amendment (ECF Nos. 17 & 19), and pursuant to the latest extension his amended complaint
was due on or before July 31, 2017 (ECF No. 19 at 2).
Plaintiff has not file an amended complaint or sought a further extension of time in
which to do so. The Tennessee Department of Correction’s Felony Offender Information
website indicates that Plaintiff’s sentence expired on July 10, 2017.
https://apps.tn.gov/foil-app/search.jsp. Thus, it appears that Plaintiff has been released and
has abandoned this action. Therefore, judgment will be entered in accordance with the
March 17, 2017, order dismissing the complaint for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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 led 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
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
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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