Johnson v. Weirich et al

Filing 6

ORDER DISMISSING COMPLAINT, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 5/15/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ERROL JOHNSON, SR.,
Plaintiff,
VS.
AMY WEIRICH, ET AL.,
Defendants.

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No. 15-2074-JDT-dkv

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

On January 29, 2015, Plaintiff, Errol Johnson, Sr., booking number 14106164, a
pretrial detainee at the Shelby County Criminal Justice Complex 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 January 30,
2015, 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.) The Clerk shall record the Defendants as Shelby County District Attorney General Amy
Weirich; the City of Millington, Tennessee; Shelby County Sheriff Bill Oldham, whose last
name was misspelled “Odom”; and Millington Police Sergeant Dennis Brunson.1

1

The Court construes the allegations against the “Millington Police” as an attempt to
assert a claim against the City of Millington.

The complaint alleges that, on February 18, 2014, Plaintiff was arrested on charges
of aggravated child neglect and first degree murder. Upon receiving discovery in the case,
Plaintiff learned that Defendant Brunson is listed as both a witness and the prosecutor on the
indictment. (ECF No. 1 at 2.) According to Plaintiff, “[t]he case stands on slanderous,
contradictory comments made by Sgt. D. Brunson.” (Id.) Plaintiff further avers that “Amy
Weirich being Shelby County District Attorney General is not only part of the wrongful
arrest and prosecution, but also slander, libel and defamation due to using the media as a
outlet to make false accusations and statements against me.” (Id.) The arrest was carried out
by officers with the Shelby County Sheriff’s Office. (Id.) The prayer for relief states as
follows:
I wish to obtain my freedom due to my innocence. Also I wish to obtain
punitive damages for my mental anguish, loss of employment and wages. I’ve
lost my personal property and residence. I wish to be granted monetary
damages for the slander, defamation, libel, wrongfully arrest, prosecution
(wrongful), and wrongful imprisonment.
(Id. at 3.)
By way of background, on February 13, 2014, a grand jury in Shelby County,
Tennessee returned a four-count indictment charging Plaintiff with two counts of aggravated
child abuse and two counts of first degree murder.2 The case is pending. The victim was
Plaintiff’s disabled twelve-year-old daughter, Andrea Ruth, who allegedly “died from

2

See http://jssi.shelbycountytn.gov (Indictment # 14 00889).
2

gangrene and infected bedsores due to neglect . . . in what has been described as one of the
worst child-neglect cases police have ever seen in Tennessee.”3
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)
such relief.

seeks monetary relief from a defendant who is immune from

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 standards under Fed. R. Civ. P. 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), are
applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded
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). “[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)

3

Father and caregiver of disabled Tenn. girl who died from gangrene, bedsores charged
with murder, N.Y. Daily News (Feb. 19, 2014), at www.nydailynews.com/news/national/dadcaregiver-disabled-tenn-girl-charged-murder-article-1.1620547.
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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.”).
“A complaint can be frivolous either factually or legally.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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, however,
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, 415 F. App’x 608,
612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to

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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))); 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, 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.”).
To state a claim under 42 U.S.C. § 1983,4 a plaintiff must allege two elements: (1)
a deprivation of rights secured by the “Constitution and laws” of the United States (2)

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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.
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committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970).
The Court cannot order Plaintiff’s release. When a prisoner seeks to challenge the
validity or duration of his confinement, his sole remedy is a petition for a writ of habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Muhammad v. Close, 540
U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity of any confinement or to
particulars affecting its duration are the province of habeas corpus.”).
The complaint does not state a valid claim for false arrest. A Fourth Amendment
claim for false arrest requires an arrest without probable cause. See, e.g., Parsons v. City of
Pontiac, 533 F.3d 492, 500 (6th Cir. 2008); Crockett v. Cumberland Coll., 316 F.3d 571, 580
(6th Cir. 2003) (“Today it is well established that an arrest without probable cause violates
the Fourth Amendment.”). Probable cause exists where a suspect is arrested pursuant to a
facially valid warrant5 or where “‘facts and circumstances within the officer’s knowledge .
. . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is committing or is about to commit
an offense.” Crockett, 316 F.3d at 580 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37
(1979)); see also Wolfe v. Perry, 412 F.3d 707, 717 (6th Cir. 2005) (“probable cause
necessary to justify an arrest is defined as ‘whether at that moment [of the arrest] the facts

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Baker v. McCollan, 443 U.S. 137, 142-46 (1979) (arrest and detention for three days
under warrant issued in plaintiff’s name but meant for his brother did not state a Fourth
Amendment claim); see Masters v. Crouch, 872 F.2d 1248, 1252-53 (6th Cir. 1989) (dismissing
claim where warrant issued in error).
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and circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the
[arrestee] had committed or was committing an offense’” (quoting Beck v. Ohio, 379 U.S.
89, 91 (1964)) (alterations in original)); Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir.
2000).
In this case, the grand jury returned its indictment on February 13, 2014, at which time
a warrant was issued for Plaintiff’s arrest. Because Plaintiff was arrested pursuant to a
facially valid warrant, he cannot sue for false arrest. See Wallace v. Kato, 549 U.S. 384,
388-90 (2007) (explaining that a claim for false arrest encompasses only the time before the
institution of legal process).
Where, as here, Plaintiff is complaining about the wrongful initiation of legal process,
his claim is one for malicious prosecution. The requirements for a malicious prosecution
claim under § 1983 are as follows:
The Sixth Circuit “recognize[s] a separate constitutionally cognizable
claim of malicious prosecution under the Fourth Amendment,” which
“encompasses wrongful investigation, prosecution, conviction, and
incarceration.” Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006)
(internal quotation marks omitted). The “tort of malicious prosecution” is
“entirely distinct” from that of false arrest, as the malicious-prosecution tort
“remedies detention accompanied not by absence of legal process, but by
wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 390,
127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007) (internal quotation marks omitted).
...
To succeed on a malicious-prosecution claim under § 1983 when the
claim is premised on a violation of the Fourth Amendment, a plaintiff must
prove the following: First, the plaintiff must show that a criminal prosecution
was initiated against the plaintiff and that the defendant “ma[d]e, influence[d],
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or participate[d] in the decision to prosecute.” Fox v. DeSoto, 489 F.3d 227,
237 (6th Cir. 2007); see also McKinley v. City of Mansfield, 404 F.3d 418, 444
(6th Cir. 2005); Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir.
2001); Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002).
Second, because a § 1983 claim is premised on the violation of a constitutional
right, the plaintiff must show that there was a lack of probable cause for the
criminal prosecution, Fox, 489 F.3d at 237; Voyticky, 412 F.3d at 675. Third,
the plaintiff must show that, “as a consequence of a legal proceeding,” the
plaintiff suffered a “deprivation of liberty,” as understood in our Fourth
Amendment jurisprudence, apart from the initial seizure. Johnson v. Knorr,
477 F.3d 75, 81 (3d Cir. 2007); see Gregory v. City of Louisville, 444 F.3d
725, 748-50 (6th Cir. 2006) (discussing the scope of “Fourth Amendment
protections . . . beyond an initial seizure,” including “continued detention
without probable cause”); cf. Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct.
2364, 129 L. Ed. 2d 383 (1994) (“[U]nlike the related cause of action for false
arrest or imprisonment, [an action for malicious prosecution] permits damages
for confinement imposed pursuant to legal process.”). Fourth, the criminal
proceeding must have been resolved in the plaintiff’s favor. Heck, 512 U.S.
at 484, 114 S. Ct. 2364 (“One element that must be alleged and proved in a
malicious prosecution action is termination of the prior criminal proceeding in
favor of the accused.”).
Sykes v. Anderson, 625 F. 3d 294, 308-09 (6th Cir. 2010) (additional citations and footnote
omitted); see also Marcilis v. Twp. of Redford, 693 F.3d 589, 604 (6th Cir. 2012) (“In order
to prove malicious prosecution under federal law, a plaintiff must show, at a minimum, that
there is no probable cause to justify an arrest or a prosecution.” (internal quotation marks and
citation omitted)).
Plaintiff’s malicious prosecution claim against Defendant Brunson is premature
because the favorable termination requirement has not been satisfied. The complaint also
contains no facts suggesting that probable cause to justify Plaintiff’s arrest and prosecution
was lacking.

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Plaintiff cannot sue Defendant Weirich for money damages arising from the institution
of criminal proceedings against him. Prosecutors are absolutely immune from suit for actions
taken in initiating and pursuing criminal prosecutions because that conduct is “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976). “A prosecutor’s decision to initiate a prosecution, including the decision
to file a criminal complaint or seek an arrest warrant, is protected by absolute immunity.”
Howell v. Sanders, 668 F.3d 344, 351 (6th Cir. 2012). Plaintiff’s claim for money damages
against Defendant Weirich for these activities is barred by absolute prosecutorial immunity.
Id. at 427-28; Burns v. Reed, 500 U.S. 478, 490-492 (1991); Grant v. Hollenbach, 870 F.2d
1135, 1137 (6th Cir. 1989); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). Therefore,
she cannot be sued for malicious prosecution. O’Neal v. O’Neal, 23 F. App’x 368, 370 (6th
Cir. 2001); see also Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2004) (noting that
“prosecutors are absolutely immune from many malicious prosecution claims”); Roybal v.
State of Tenn. Dist. Attorney’s Office, 84 F. App’x 589 (6th Cir. 2003).
Weirich is not entitled to absolute immunity for her statements to the media. Buckley
v. Fitzsimmons, 509 U.S. 259, 277 (1993) (“Comments to the media have no functional tie
to the judicial process just because they are made by a prosecutor.”). Any such statements
might be protected by qualified immunity. Id. at 278. It is unnecessary to address whether
any statements by Weirich would be protected by qualified immunity because the complaint
does not identify any such statements and does not allege that those statements violated his
rights under the United States Constitution. Siegert v. Gilley, 500 U.S. 226, 233 (1991)
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(“Defamation, by itself, is a tort actionable under the laws of most States, but not a
constitutional deprivation.”); Paul v. Davis, 424 U.S. 693, 712 (1976) (an “interest in
reputation . . . is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without
due process of law”).
The complaint contains no factual allegations against Defendant Oldham. When a
complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Furthermore, Defendant
Oldham cannot be held liable merely because of his position as Shelby County Sheriff.
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. 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
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(6th Cir. 1996). The complaint does not allege that Defendant Oldham had any personal
involvement in Plaintiff’s arrest. Even if he did, Plaintiff was arrested pursuant to a facially
valid warrant; therefore, there was no constitutional violation for which Defendant Oldham
can be held liable.
The complaint also does not assert a valid claim against the City of Millington. When
a § 1983 claim is made against a municipality, the court must analyze two distinct issues:
(1) whether the plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992).
A local government “cannot be held liable solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Searcy v. City
of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th
Cir. 1994). A municipality cannot be held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation. Monell, 436 U.S. at 691-92; Deaton v. Montgomery Cnty., Ohio,
989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a plaintiff “must (1)
identify the municipal policy or custom, (2) connect the policy to the municipality, and (3)
show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving,
330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364
(6th Cir. 1993)). “Where a government ‘custom has not received formal approval through
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the body’s official decisionmaking channels,’ such a custom may still be the subject of a
§ 1983 suit.” Alkire, 330 F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or
custom “must be ‘the moving force of the constitutional violation’ in order to establish the
liability of a government body under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk Cnty.
v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)). “[T]he touchstone of ‘official
policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited to action for which
the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138
(1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)). Plaintiff’s complaint
does not allege that he was injured by an unconstitutional policy or custom of the City of
Millington. Instead, it appears that the City of Millington has been sued because it employs
Defendant Brunson.
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d
944, 951 (6th Cir. 2013); see also Brown v. Rhode Island, 511 F. App’x 4, 5 (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, 511
F. App’x at 5; 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
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and 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.”). Because the deficiencies in Plaintiff’s
complaint cannot be cured, leave to amend is DENIED.
Therefore, the Court DISMISSES Plaintiff’s complaint 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).6
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.

6

Because the federal claims have been dismissed, the Court declines to exercise
supplemental jurisdiction over any state-law claim for libel. See 28 U.S.C. § 1367(c).
13

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
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
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, 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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