Montgomery v. Memphis Police Dept. et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 12 , ORDER OF DISMISSAL WITHOUT PREJUDICE, ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 1/2/14. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
SAMUEL MONTGOMERY, JR.,
Plaintiff,

VS.

MEMPHIS POLICE DEPARTMENT,
ET AL.,
Defendants.

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No. 12-2976-JDT-tmp

ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF DISMISSAL WITHOUT PREJUDICE
ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On November 9, 2012, Plaintiff Samuel Montgomery, Jr., a resident of Osceola,
Arkansas, filed a pro se civil complaint pursuant to 42 U.S.C. § 1983 and a motion to
proceed in forma pauperis. (Docket Entries 1 & 2.) Named as Defendants were the
Memphis Police Department, J. Clapp, A. Harper, J. Dennison, and C. Leatherwood.1 (D.E.
1 at 1.) The Court denied leave to proceed in forma pauperis and directed Plaintiff to pay
the filing fee, which he did on November 30, 2012. (D.E. 3 & 4.) On January 2, 2013,
Plaintiff was provided with a notice advising that service of process is governed by Federal

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Plaintiff also included two unidentified “John Doe” defendants.

Rule of Civil Procedure 4 and that the appropriate forms may be found on the Court’s
website or obtained at the Clerk’s Offices in either Memphis or Jackson. The notice further
advised that if summonses were properly completed and presented to the Clerk, they would
be issued and returned to Plaintiff for service; a sample summons was provided.
On April 4, 2013, U.S. Magistrate Judge Tu M. Pham2 issued an order noting that the
Defendants had not been served with process and that the 120-day time limit for service set
forth in Fed. R. Civ. P. 4(m) had expired. Plaintiff was directed to show cause, within twenty
days, why the case should not be dismissed. (D.E. 7.) Plaintiff did not respond directly to
the show cause order. However, on April 12, 2013, Plaintiff submitted to the Clerk only one
summons for issuance, directed not to any named Defendant, but to the “Agents of the
Organized Crime Unit.” (D.E. 8.) No proof of service on the Defendants was filed;
therefore, on May 29, 2013, Magistrate Judge Pham issued an order directing Plaintiff to
properly serve the Defendants and file proof of service within thirty days. (D.E. 9.)
On June 11, 2013, Plaintiff filed what apparently was intended to be a return on the
single summons originally issued on April 12, 2013, showing that he mailed the process by
certified mail to the Memphis Police Department, Organized Crime Unit, at 201 Poplar
Avenue, where it was received on April 15, 2013. (D.E. 10.) No further activity occurred
in the case until Magistrate Judge Pham issued another order on October 1, 2013, noting that
the process was insufficient and directing Plaintiff to properly serve each Defendant within

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On March 27, 2013, the case was referred to the assigned U.S. Magistrate Judge for case management and
handling of all pretrial matters by determination or by report and recommendation, as appropriate. (D.E. 6.)

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sixty days. (D.E. 11.) Plaintiff was warned that failure to comply would result in a
recommendation of dismissal with regard to all unserved Defendants. (Id. at 3.)
Plaintiff filed no proof of service and took no further action. Therefore, on December
5, 2013, Magistrate Judge Pham issued a Report and Recommendation (“R&R”) in which
he recommended the case be dismissed. (D.E. 12.) Objections to the R&R were due on or
before December 23, 2013. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d).
However, Plaintiff has filed no objections.
The Court agrees with the Magistrate Judge’s recommendation and ADOPTS the
R&R. This case is hereby DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m)
and 41(b) for failure to serve process and failure to prosecute.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of
Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800,
803-04 (6th Cir. 1999). Rule 24(a) provides that if a party seeks pauper status on appeal, he
must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.
P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an
appeal would not be taken in good faith, or otherwise denies leave to appeal in forma
pauperis, the party must file his motion to proceed in forma pauperis in the Court of
Appeals. Fed. R. App. P. 24(a)(4)-(5).

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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. The same considerations that lead the
Court to dismiss this case failure to serve process and failure to prosecute also compel the
conclusion that an appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by
Plaintiff is not taken in good faith. 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 to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.3
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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Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this Court. A motion to appeal in
forma pauperis then should be filed directly in the United States Court of Appeals for the Sixth Circuit. Unless he is
specifically instructed to do so, Plaintiff should not send to this Court copies of documents intended for filing in the
Sixth Circuit.

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