Nichols et al v. Core Civic et al

Filing 22

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 11/29/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TERRANCE NICHOLS,
Plaintiff,
VS.
CORECIVIC, ET AL,
Defendants.

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No. 17-1104-JDT-cgc

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

Plaintiff Terrance Nichols and five other prisoners filed a joint pro se civil
complaint on June 5, 2017. (ECF No. 1.) The Court severed the Plaintiffs’ claims, (ECF
No. 16), and subsequently issued an order granting Plaintiff Nichols leave to proceed in
forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform
Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 20.)
On November 1, 2018, the Court issued an order dismissing Nichols’s complaint
for failure to state a claim but granted leave to file an amended complaint within twentyone days. (ECF No. 21.) 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 10.) However, Nichols 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 November 1, 2018, 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 Nichols 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). 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
Nichols would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if
Nichols 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, §§ 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 the PLRA and McGore by filing an

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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 Nichols, 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

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