Franklin v. Tennessee Department of Correction et al
Filing
13
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 3/2/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JANICE FRANKLIN,
Plaintiff,
VS.
STATE OF TENNESSEE, ET AL.,
Defendants.
)
)
)
)
)
)
)
)
)
No. 14-2738-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 September 19, 2014, Plaintiff Janice Franklin, Tennessee Department of
Correction prisoner number 432558, an inmate at the Tennessee Prison for Women in
Nashville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 in the United
States District Court for the Middle District of Tennessee, accompanied by a motion seeking
leave to proceed in forma pauperis and a motion for the appointment of counsel. (ECF Nos.
1, 2 & 3.) In an order issued on September 18, 2014, United States District Judge Kevin H.
Sharp granted leave to proceed in forma pauperis, assessed the civil filing fee pursuant to 28
U.S.C. §§ 1915(a)-(b), dismissed certain parties, denied the motion for appointment of
counsel without prejudice and transferred the case to this district, where venue is proper.
(ECF No. 5.) The case was docketed in this district on September 19, 2014. (ECF No. 7.)
On September 29, 2014, Plaintiff filed an amended complaint and a second motion to appoint
counsel. (ECF No. 9 & 10.)
On January 22, 2015, the Court denied the motion to appoint counsel and dismissed
the complaint for failure to state a claim; however, the Court granted leave to file a second
amended complaint against Defendants in their individual capacities addressing the medical
treatment Plaintiff was provided at the Mark Luttrell Correctional Center or any retaliation
she experienced for exercising her First Amendments rights. (ECF No. 12.) Plaintiff was
instructed that any amended complaint must be filed within twenty-eight days and that,
should she fail to file an amendment within the time specified, the Court would assess a
“strike” pursuant to 28 U.S.C. § 1915(g) and enter judgment. (Id. at 20).
Plaintiff has not filed a second amended complaint, and the time within which to do
so has expired. Therefore, judgment will be entered in accordance with the January 22,
2015, order of dismissal.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should she 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)(3) provides that if a party was permitted to proceed in
forma pauperis in the district court, she may also proceed on appeal in forma pauperis
without further authorization unless the district court “certifies that the appeal is not taken
in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis.”
2
If the district court denies pauper status, the party may file a motion to proceed in forma
pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
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.
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
PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the Plaintiff is instructed that if she wishes to
take advantage of the installment procedures for paying the appellate filing fee, she must
comply with the procedures set out in McGore and § 1915(a)(2) by filing an updated in
3
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 her 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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?