Hughes v. Johnson & Johnson et al

Filing 12

ORDER DISMISSING COMPLAINT WITH PREJUDICE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/2/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
STEVEN ALAN HUGHES,
Plaintiff,
VS.
JOHNSON & JOHNSON, ET AL.,
Defendants.

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No. 14-2502-JDT-cgc

ORDER DISMISSING COMPLAINT WITH PREJUDICE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On June 27, 2014, Plaintiff, Steven Alan Hughes, RNI Number 247143, an inmate at
the Shelby County Correctional Center in Memphis, Tennessee, filed a pro se 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 on June 30, 2014, 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 October 17,
2014, the Court dismissed the complaint for failure to state a claim, granted leave to amend
to correct the deficiencies identified in that order, and directed that any amendment must be
filed within twenty-eight days. (ECF No. 9.) The Court subsequently extended Plaintiff’s
time to file his amendment to and including December 19, 2014. (ECF No. 11.)

Plaintiff has not filed his amended complaint, and the time within which to do so has
expired. Therefore, the Court DISMISSES the action WITH PREJUDICE for failure to state
a claim on which relief may be granted, 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 v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the

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PLRA. Therefore, the Plaintiff is instructed that if he wishes to take advantage of the
PLRA’s 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
second dismissal of one of his cases as frivolous or for failure to state a claim.1 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

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Plaintiff previously filed Hughes v. Correct Care Solutions, No. 2:12-cv-02403-JDTdkv (W.D. Tenn. Feb. 6, 2013) (dismissed for failure to state a claim).

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