Presley v. Webb et al

Filing 13

ORDER OF DISMISSAL, GRANTING MOTION TO AMEND COMPLAINT 8 , DENYING MOTIONS TO APPOINT COUNSEL 9 12 , CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE, Motions terminated: 9 8 12 . Signed by Judge James D. Todd on 9/29/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KRISTOPHER WAYNE PRESLEY,
Plaintiff,
VS.
DR. WEBB et al.,
Defendants.

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No. 14-2705-JDT-tmp

ORDER OF DISMISSAL,
GRANTING MOTION TO AMEND COMPLAINT (ECF No. 8),
DENYING MOTIONS TO APPOINT COUNSEL (ECF Nos. 9 & 12),
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On September 12, 2014, Plaintiff Kristopher Wayne Presley (“Presley”), who is currently
an inmate at the Shelby County Correctional Center (“SCCC”) in Memphis, Tennessee, filed a
pro se complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2). In an order issued September 16, 2014, the Court granted leave to
proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation
Reform Act of 1995 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4) The Clerk shall record
the defendants1 as Dr. First Name Unknown (“FNU”) Webb, Officer FNU Long, Nurse FNU

1

The Clerk is directed to add Defendants Chief FNU Moore and Officer FNU Vaughn to
the list of Defendants as well as correct the position of Officer FNU Long and spelling of Officer
Snowden pursuant to Presley’s Motion for Amended Complaint. (Mtn. to Am. Compl. at 2-3,
ECF No. 8-1)/

Krane, Officer Snowden, Lieutenant (“Lt.”) FNU Bean, Lt. FNU Kornagy, Officer Phillips, and
Chief FNU Moore, and Officer FNU Vaughn.2
I. The Complaint and Amended Complaint
On December 4, 2014, Presley filed a motion seeking leave to amend with an
incorporated amendment to his complaint. (Mot. to Am. Compl., ECF No. 8.) Because the
motion was submitted before the complaint had been screened, leave of Court is not required.
The amended complaint includes a jury demand. The Clerk is directed to modify the docket to
reflect that Presley has demanded a jury trial.3
Presley’s alleges Defendants violated his Eighth Amendment Rights by denying medical
treatment and through improper treatment. (Am. Compl. at ¶ 57, ECF No. 8-1.) On or around
September 22, 2013, Presley was diagnosed with scabies4 by Defendant Webb who then gave
instructions to Defendant Vaughn for Presley’s treatment. (Id. at ¶ 25.) After the diagnosis,
Presley received treatment, although “without medical oversight,” and had his clothing removed
for cleaning, but was not given clean sheets. (Id. at ¶¶ 26-30.).

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Plaintiff also purports to sue seven John/Jane Doe defendants. Service of process cannot
be made on a fictitious party. The filing of a complaint against “John/Jane Doe” does not toll the
running of the statute of limitations against that party. See Cox v. Treadway, 75 F.3d 230, 240
(6th Cir. 1996); Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir. 1968). The Clerk
is directed to terminate the John/Jane Doe defendants.
3

The fact that Plaintiff has demanded a jury trial does not guarantee that he will get one.
A case can be dismissed on screening under 28 U.S.C. §§ 1915(e)(2)(B) or 1915A(b) or a
defendant may file a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure
or a motion for summary judgment under Rule 56. A jury demand means only that, if the case
proceeds to trial, the trier of fact will be a jury rather than the assigned judge.
4

Scabies is defined by the Mayo Clinic as, “an itchy skin condition caused by a tiny
burrowing mite called Sarcoptes scabiei. The presence of the mite leads to intense itching in the
area
of
its
burrows.”
http://www.mayoclinic.org/diseasesconditions/scabies/basics/definition/CON-20023488
2

On or around early October, 2013, after being put in general population,, Presley was
diagnosed with scabies by Defendant Krane. (Id. at ¶ 35.) Presley was given his third dose of
treatment on October 3, 2013. (Id. at ¶ 37.) Presley informed Defendant Snowden that he
needed new sheets, but she replied that, “she wasn’t medical” forcing Presley to push his sheets
and blanket out of his cell. (Id.at ¶ 38.)
Presley alleges that October 2013, through December 2013, his requests for treatment,
clean sheets, and proper diagnosis were denied. (Id. at ¶¶ 36-46.) He was cleared medically by
Defendant Krane and moved to general housing. (Id. at ¶ 41 ) Despite being cleared, Presley
informed Defendants Phillips and Bean that he was not cured. (Id. at ¶ ¶ 42 & 43.) After filing
grievances, Presley was re-examined by Defendant Krane who told him to stop exercising and
prescribed Benadryl by a nurse “Jane Doe.” (Id. at ¶ 46.)
In January 2014, Presley wrote Defendant Moore about his circumstances. (Id. at ¶ 48.)
In January 2014, Presley was again diagnosed with scabies and prescribed “lidane” by
Defendant Webb after stating that he wanted either treatment or an examination by an outside
clinic and threatening to sue for lack of treatment. (Id. at ¶¶ 49-51.) During the month of
February 2014, Presley was treated with “lidane.” (Id. at ¶ 53.) Presley alleges that he now
suffers from migraines, has black spots in his vision, and has scars over his legs. (Id. at ¶ 54.)
Presley seeks a preliminary and permanent injunction ordering Defendants to undergo
training and provide a clean prison environment as well as compensatory and punitive damages.
(Id.at ¶¶ 60-62.)

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II. Analysis
A.

Screening and Standard
The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2)

seeks monetary relief from a defendant who is immune from such

relief.
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the court applies standards under Federal Rule of Civil Procedure 12(b)(6), as stated in
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all wellpleaded allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the]
complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original).
“[P]leadings that . . . are no more than conclusions . . . are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule
8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without
some factual allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on
which the claim rests.”).

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“A complaint can be frivolous either factually or legally. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Hill, 630 F.3d
at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief.
Statutes allowing a complaint to be dismissed as frivolous give “judges not only
the authority to dismiss a claim based on an indisputably meritless legal theory,
but also the unusual power to pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are clearly baseless.” Neitzke,
490 U.S. at 327, 109 S. Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a
dismissal for failure to state a claim, where a judge must accept all factual
allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that are
reviewed for frivolousness. Neitzke, 490 U.S. at 327-28, 109 S. Ct. 1827.
Id. at 471.
“Pro se complaints are to be held ‘to less stringent standards than formal pleadings
drafted by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and prisoners
are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 2011 WL
285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to
comply with “unique pleading requirements” and stating “a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleading’”) (quoting Clark v. Nat’l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original); Payne v. Sec’y of Treas., 73 F.
App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s
claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District judges have no obligation
to act as counsel or paralegal to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506,

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510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to ferret out the strongest cause
of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would
transform the courts from neutral arbiters of disputes into advocates for a particular party. While
courts are properly charged with protecting the rights of all who come before it, that
responsibility does not encompass advising litigants as to what legal theories they should
pursue.”).
B.

§ 1983 Claim
Presley filed his original complaint on the court-supplied form for actions under 42

U.S.C. § 1983. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) a deprivation
of rights secured by the “Constitution and laws” of the United States (2) committed by a
defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
1.

Claims against Defendant Moore as Supervisor

It is clear that Presley sues Defendants Moore because of his supervisory capacities.
Under 42 U.S.C. § 1983, “[g]overnment officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S.
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at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must
plead that each Government-official defendant, through the official’s own official actions,
violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a §
1983 plaintiff must show that a supervisory official at least implicitly authorized,
approved or knowingly acquiesced in the unconstitutional conduct of the
offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted).

A supervisory official, who is aware of the

unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or her individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir.
1996). The complaint does not allege that Defendants Moore, through his own actions, violated
Presley’s rights.
2.

Eight Amendment Claim for Medical Indifference

Presley’s complains that he was either denied proper treatment and, once given treatment,
it was with a “highly toxic lotion” that still is causing side effects in him today. (Id. at 57.) “The
right to adequate medical care is guaranteed to convicted federal prisoners by the Cruel and
Unusual Punishments Clause of the Eighth Amendment. “A prisoner’s right to adequate medical
care ‘is violated when prison doctors or officials are deliberately indifferent to the prisoner’s
serious medical needs.’”

Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005) (quoting

Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)); see also Santiago v. Ringle, 734 F.3d
585, 590 (6th Cir. 2013) (same).

“Although the right to adequate medical care does not

encompass the right to be diagnosed correctly, [the Sixth Circuit] has long held that prison

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officials who have been alerted to a prisoner’s serious medical needs are under an obligation to
offer medical care to such a prisoner.” Johnson, 398 F.3d at 874 (internal quotation marks and
citation omitted).
The objective component of an Eighth Amendment claim requires that a prisoner have a
serious medical need. Blackmore, 390 F.3d at 895; Brooks v. Celeste, 39 F.3d 125, 128 (6th Cir.
1994). “[A] medical need is objectively serious if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would readily
recognize the necessity for a doctor’s attention.” Blackmore, 390 F.3d at 897 (internal quotation
marks and citations omitted); see also Santiago, 734 F.3d at 590 (same); Johnson, 398 F.3d at
874 (same). Alternatively, where a prisoner complains about a delay in medical treatment, the
Court will “examine the seriousness of a deprivation by examining the effect of the delay in
treatment.” Napier v. Madison Cnty., Ky., 238 F.3d 739, 742 (6th Cir. 2001). “An inmate who
complains that delay in medical treatment rose to a constitutional violation must place verifying
medical evidence in the record to establish the detrimental effect of the delay in medical
treatment to succeed.” Id. (internal quotation marks and alteration omitted); see also Santiago,
734 F.3d at 591 (“In a case like this, involving a claim based on the prison’s failure to treat a
condition adequately, medical proof is necessary to assess whether the delay caused a serious
medical injury.”) (internal quotation marks omitted).

“The ‘verifying medical evidence’

requirement is relevant [only] to those claims involving minor maladies or non-obvious
complaints of a serious need for medical care.” Blackmore, 390 F.3d at 898. The Court will
assume, for purposes of this order, that Presley’s scabies constituted a serious medical need.
To establish the subjective component of an Eighth Amendment violation, a prisoner
must demonstrate that the official acted with the requisite intent, that is, that he or she had a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v.
Seiter, 501 U.S. 294, 302-03 (1991). The plaintiff must show that the prison officials acted with
“deliberate indifference” to a substantial risk that the prisoner would suffer serious harm.
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Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Helling v. McKinney, 509 U.S. 25, 32 (1993);
Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Street, 102 F.3d at 814; Taylor v. Mich.
Dep’t of Corr., 69 F.3d 76, 79 (6th Cir. 1995). “[D]eliberate indifference describes a state of
mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. Thus,
[a] prison official cannot be found liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference. This approach
comports best with the text of the Eighth Amendment as our cases have
interpreted it. The Eighth Amendment does not outlaw cruel and unusual
“conditions”; it outlaws cruel and unusual “punishments.” An act or omission
unaccompanied by knowledge of a significant risk of harm might well be
something society wishes to discourage, and if harm does result society might
well wish to assure compensation. The common law reflects such concerns when
it imposes tort liability on a purely objective basis. . . . But an official’s failure to
alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot under our cases be condemned as the infliction
of punishment.
Id. at 837-38 (emphasis added; citations omitted); see also Garretson v. City of Madison Heights,
407 F.3d 789, 796 (6th Cir. 2005) (“If the officers failed to act in the face of an obvious risk of
which they should have known but did not, then they did not violate the Fourteenth
Amendment.”). Each defendant’s subjective knowledge must be assessed separately, Rouster v.
Cnty. of Saginaw, 749 F.3d 437, 447 (6th Cir. 2014), and information available to one defendant
may not automatically be imputed to other defendants, Gray v. City of Detroit, 399 F.3d 612, 616
(6th Cir. 2005).
“‘[T]hat a [medical professional] has been negligent in diagnosing or treating a medical
condition does not state a valid claim . . . under the Eighth Amendment.’” Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). “The requirement that the official have subjectively perceived a risk of harm and then
disregarded it is meant to prevent the constitutionalization of medical malpractice claims; thus, a
plaintiff alleging deliberate indifference must show more than negligence or the misdiagnosis of

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an ailment.” Comstock, 273 F.3d at 703. “When a doctor provides treatment, albeit carelessly or
inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the prisoner’s
needs, but merely a degree of incompetence which does not rise to the level of a constitutional
violation.” Id.; see also Johnson, 398 F.3d at 875 (same). “‘[D]eliberate indifference to a
substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that
risk.’” Comstock, 273 F.3d at 703 (quoting Farmer, 511 U.S. at 836). “A medical decision not
to order an X-ray, or like measures, does not represent cruel or unusual punishment. At most it
is medical malpractice, and as such the proper forum is the state court.” Estelle, 429 U.S. at 107.
In the present case, Presley alleges that he received treatment for scabies, albeit not
always to the extent, duration, or prescription that he preferred. Presley’s own allegation show
that Defendants provided treatment on several occasions. (Am. Compl. at ¶ ¶ 29, 37, 46, & 53,
ECF No 8-1.) The level of treatment provided by Defendants, thus amounts, at most, to medical
negligence not indifference.
C.

Motion to Appoint Counsel
Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any

person unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding
is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also
Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to
have counsel appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 60506 (6th Cir. 1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d
319, 323 (7th Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal
civil cases . . . .”). Appointment of counsel is “a privilege that is justified only by exceptional
circumstances.” Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In

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determining whether ‘exceptional circumstances’ exist, courts have examined the type of case
and the abilities of the plaintiff to represent himself. This generally involves a determination of
the complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and
citations omitted).5 Appointment of counsel is not appropriate when a pro se litigant’s claims are
frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752
F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir.
2009) (same).6
Presley has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel in this case. Because the case will be dismissed sua sponte for the
reasons stated below, the motion for appointment of counsel is DENIED
III. Standard for Leave to Amend
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissals under the PLRA. LaFountain v. Harry, 716 F.3d
944, 951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir.
Feb. 22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered,
some form of notice and an opportunity to cure the deficiencies in the complaint must be
afforded.”). Leave to amend is not required where a deficiency cannot be cured. Brown, 2013
WL 646489, at *1; Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This
does not mean, of course, that every sua sponte dismissal entered without prior notice to the
plaintiff automatically must be reversed. If it is crystal clear that the plaintiff cannot prevail and
5

A plaintiff is not entitled to an evidentiary hearing on the issue. Sutton v. Small Bus.
Admin., 92 F. App’x 112, 116 (6th Cir. 2003).
6

These factors are important, because § 1915(e)(1) “does not authorize the federal courts
to make coercive appointments of counsel” to represent indigent civil litigants. Mallard v.
United States Dist. Ct., 490 U.S. 296, 310 (1989).
11

that amending the complaint would be futile, then a sua sponte dismissal may stand.”); Grayson
v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file
complaints subject to dismissal under Rule 12(b)(6) should receive leave to amend unless
amendment would be inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.
2001) (“We agree with the majority view that sua sponte dismissal of a meritless complaint that
cannot be salvaged by amendment comports with due process and does not infringe the right of
access to the courts.”).
IV. Appeal Issues
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Presley 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.
V. Conclusion
The Court DISMISSES Presley’s complaint as to all Defendants for failure to state a
claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b(1). Leave to Amend is DENIED because the deficiencies in Presley’s complaint
cannot be cured. It is also CERTIFIED, pursuant to 28 U.S.C. §1915(a)(3), that any appeal in
this matter by Presley would not be taken in good faith.

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The Court must also address the assessment of the $505 appellate filing fee if Presley
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 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 Presley, 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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