Pruitt v. Ford et al

Filing 8

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 9/25/18. (skc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
A.T. PRUITT,
Plaintiff,
VS.
TAMMY FORD, ET AL.,
Defendants.

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No. 17-1134-JDT-cgc

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

On July 11, 2017, the pro se Plaintiff, A.T. Pruitt, who is incarcerated at the
Whiteville Correctional Facility in Whiteville, Tennessee, filed a complaint pursuant to 42
U.S.C. § 1983. (ECF No. 1.) The Court subsequently issued an order granting Plaintiff=s
motion for 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. 4.)
On August 24, 2018, the Court dismissed the complaint for failure to state a claim
and granted leave to file an amended complaint. (ECF No. 6.) An order of clarification
was entered on August 29, 2018, advising Plaintiff that any amended complaint must be
filed within twenty-one days after that date. (ECF No. 7.) The order of August 24th
notified Plaintiff that if he failed to file an amended complaint within the specified time
period, the Court would assess a ‘strike’ pursuant to 28 U.S.C. § 1915(g) and enter

judgment. (ECF No. 6 at 8; ECF No. 7.) However, Plaintiff has failed to file an amended
complaint, and the time within which to do so has expired. Therefore, judgment will be
entered in accordance with the August 24, 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 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.
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
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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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