Jones v. Willie et al

Filing 11

ORDER DENYING RECONSIDERATION, 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 4/7/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TOMMY EARL JONES,
Plaintiff,
VS.
DONALD WILLIE, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 14-2492-JDT-dkv

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

On June 23, 2014, Plaintiff Tommy Earl Jones, Tennessee Department of Correction
(“TDOC”) prisoner number 464968, an inmate at the West Tennessee State Penitentiary
(“WTSP”) in Henning, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and
Title II of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq.,
accompanied by a motion seeking the appointment of counsel and a motion for an injunction.
(ECF Nos. 1, 2 & 3.) Plaintiff subsequently filed a motion for leave to proceed in forma
pauperis. (ECF No. 4.) On November 24, 2014, Plaintiff filed an amended complaint that
appeared to be intended to supplement the original complaint. (ECF No. 5.) He filed a
second motion for an injunction and a second motion for appointment of counsel on
November 26, 2014. (ECF Nos. 6 & 7.)

In an order issued on January 30, 2015, the Court, inter alia, granted leave to proceed
in forma pauperis, assessed the civil filing fee under the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b),1 denied the motions for an injunction and for
appointment of counsel, dismissed the complaint, as amended, for failure to state a claim,
granted leave to file a second amended complaint and specified that any second amended
complaint be filed within twenty-eight days. (ECF No. 8.) Plaintiff was cautioned that, if
he “fails to file an amended complaint within the time specified, the Court will assess yet
another strike pursuant to 28 U.S.C. § 1915(g) and will enter judgment.” (Id. at 26.)
Plaintiff did not file an amended complaint within the time specified. Instead, on
February 9, 2015, Plaintiff filed a document, titled “Memorandum” (ECF No. 10), in which
he appears to argue that the dismissal of his complaint was erroneous in light of the Sixth
Circuit’s order in Jones v. Cuddy, No. 14-5087 (6th Cir. Sept. 5, 2014). In that case, the
Sixth Circuit held that an allegation that a prison doctor refused to provide pain medication
stated a claim under the Eighth Amendment. Id., slip op. at 3. However, the present case is
distinguishable from Jones v. Cuddy. In this case, the Court acknowledged that the
complaint might assert a viable Eighth Amendment claim against Defendant Willie for
discontinuing Plaintiff’s pain medication but declined to order service of process because the
only relief sought was a transfer to the Lois M. DeBerry Special Needs Facility. (ECF No.

1

Although Plaintiff is a three-strike filer under 28 U.S.C. § 1915(g), the Court found the
complaint arguably satisfied the “imminent danger” exception to that provision. Therefore, the
Court granted pauper status, assessed the filing fee pursuant to § 1915(b) and screened the
complaint in accordance with §§ 1915(e)(2)(B) and 1915A.
2

8 at 22-23.) Similar allegations in the amended complaint were brought only under Title II
of the ADA, which is not a proper vehicle for raising claims of inadequate medical treatment.
(Id. at 24.) Furthermore, to the extent Plaintiff’s Memorandum can be construed as a motion
for reconsideration, nothing in that filing persuades the Court that the prior order of dismissal
was in error.
Because Plaintiff has failed to file an amended complaint, judgment will be entered
in accordance with the January 30, 2015, order of dismissal.
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), 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
3

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 v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). 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
fourth 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, 733 F.3d 175, 177-78 (6th
Cir. 2013), cert. granted, 135 S. Ct. 43 (2014) (Nos. 13-1333, 13A985).
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

4