Tigner v. Memphis Police Department of Shelby County, TN et al
ORDER DENYING PENDING MOTIONS, DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 3/21/17. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
CHARLES HENDERSON TIGNER, IV,
MEMPHIS POLICE DEPARTMENT, ET AL., )
ORDER DENYING PENDING MOTIONS, DISMISSING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On April 28, 2016, Plaintiff Charles Henderson Tigner, IV (“Tigner”), who was, at the is
currently incarcerated at the Federal Transfer Center in Oklahoma City, Oklahoma, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion for leave to proceed in forma
(ECF Nos. 1 & 2.) The Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act, 28 U.S.C.
(ECF No. 4.).
The Clerk shall record the Defendants as the Memphis,
Tennessee Police Department (“MPD”), MPD Officer Connor Shielling, MPD Officer Gloria
Winfrey, and Gwendolyn Morris Scruggs.
I. The Complaint
Tigner alleges that he was falsely accused of crimes as well as attacked and brutalized by
police officers of the Ridgeway Precinct outside of his children’s school on October 30, 2014.
(ECF No. 1 at 3.) He contends that Defendant Winfrey was one of the first two responding
officers who attempted to seize him by pulling on him and his belongings as well as using pepper
spray on him, resulting on Tigner falling to the ground. (Id.) Defendant Winfrey then grabbed
and pulled his hair, causing it to rip out and tear from the root, and ripped his deceased mother’s
ring from his hand. (Id.) Tigner began to flee and was in fear for his life because of what he
heard the officers say. (Id.)
Tigner further alleges that Defendant Shielling was the officer who detained him outside
the school. (Id.) Tigner contends that even though he did not resist Defendant Shielling,
Defendant Shielling beat him with a baton after he had his hands up, pointed a gun in his face
shouting threats and obscenities, punched Tigner in the back and side of his head and, after
cuffing Tigner, kicked him in the face. (Id.)
Tigner was transported to the Ridgeway Precinct where he requested an attorney and
attempted to file claims of brutality, excessive force; however, Detective Hobson, who is not a
party to this complaint, stated he didn’t “want to hear about that shit, we want to hear about the
gun.” (Id.) Detectives allegedly continued to question him after he requested counsel. (Id.)
Tigner alleges that the detectives of the Ridgeway Precinct conspired to formulate fraudulent and
misleading allegations, provided fraudulent accusations in supplements and affidavits, and used
the false claims and allegations by Defendant Scruggs to file a false police report which caused
Tigner’s life to be endangered and led to his incarceration at Shelby County Jail (“Jail”). (Id.)
While at the Jail, Tigner allegedly received bad medication that caused a cardiac issue, suffered
from migraine headaches and hearing loss caused by the MPD Officers, and suffered emotional
distress that caused his blood pressure to be elevated. (Id.)
Tigner seeks $21.2 million in compensation from defendants. (Id. at 5.)
By way of background, on February 26, 2015, Tigner was indicted being a felon in
position of a firearm in violation of U.S.C. § 922(g)(1) and possession of a firearm in a school
zone in violation of U.S.C. §§ 922(q)(2)(A) and 924(a)(4). United States v. Tigner, No. 1520043-JFT (W.D. Tenn.) On March 1, 2017, Tigner was convicted by a jury on both counts.
(Id., Crim. ECF Nos. 121 & 123.) The case is currently set for sentencing on May 4, 2017. (Id.,
Crim. ECF No. 125.)
Screening and Standard
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
is frivolous, malicious, or fails to state a claim upon which relief may be
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 the 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 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) (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.”).
“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,
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
§ 1983 Claim
Tigner filed his complaint on the court-supplied form for actions under 42 U.S.C. § 1983
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
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
Claims against MPD are properly construed as claims against the City of Memphis.
When a § 1983 claim is made against a municipality, the court must analyze two distinct issues:
(1) whether 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).
The second issue is dispositive of plaintiff’s claim against the City of
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. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); 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 Co., 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 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 Co. v. Dodson, 454 U.S. at 326 (citation
“[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)) (emphasis in original).
Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the
municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, No.
3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom,
No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of
Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v.
Correctional Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15,
2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom
or practice); Cleary v. Cnty of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich.
Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8
(E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL
1421099, at *3 (W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an
official policy or custom which caused injury to plaintiff. Instead, it appears that plaintiff is suing
the City of Memphis because the City of Memphis employed persons who allegedly violated his
Defendant Scruggs is a private citizen. Tigner makes no allegations that she is employed
by the state. Generally to be considered to have acted “under color of state law,” the person must
be a state or local government official or employee. A private party may be found to have acted
under color of state law to establish the first element of this cause of action only when the party
“acted together with or . . . obtained significant aid from state officials” and did so to such a
degree that its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she
exercises powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974).
There are no allegations in the complaint that reasonably suggest that
Defendant Scruggs engaged in conduct which could be construed as “state action.” Furthermore,
a witness in a criminal case is absolutely immune under 42 U.S.C. § 1983 for claims arising from
the witness’ testimony. Briscoe v. LaHue, 460 U.S. 325 (1983).
Tigner alleges that while at the Jail he received bad medication. Tigner was a pretrial
detainee while he was at the Jail; however, for both pretrial detainees and convicted prisoners,
the Sixth Circuit has analyzed claims for failure to provide adequate medical care under the
Eighth Amendment’s deliberate indifference standard, even after the decision in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015).1 See Morabito v. Holmes, 628 F. App’x 353, 356-58 (6th
Cir. 2015) (applying the objective reasonableness standard to pretrial detainee’s excessive force
claims and deliberate indifference standard to claim for denial of medical care).
An Eighth Amendment claim consists of both objective and subjective components.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);
Wilson v. Seiter, 501 U.S. 294, 298 (1991); Williams v. Curtin, 631 F.3d at 383; Mingus v.
Butler, 591 F.3d 474, 479-80 (6th Cir. 2010).
The objective component requires that the
deprivation be “sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson,
501 U.S. at 298. In the context of an Eighth Amendment claim based on a lack of medical care,
the objective component requires that a prisoner have a serious medical need. Blackmore v.
In Kingsley, the Supreme Court held that excessive force claims brought by pretrial
detainees must be analyzed under the Fourteenth Amendment’s standard of objective
reasonableness, rejecting a subjective standard that takes into account a defendant’s state of
mind. Id. at 2472-73.
Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004); 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 omitted); see also Johnson v. Karnes, 398 F.3d 868, 874 (6th Cir. 2005).
Tigner does not allege that any named Defendant gave him the medicine or was aware
that it caused any medical issues; therefore, Tigner fails to meet the subjective component for an
Eighth Amendment violation.
Tigner’s claims against the Defendants for false arrest/arrest without probable cause,
false imprisonment, illegal search and seizure and excessive force upon arrest are time barred.
The statute of limitations for a § 1983 action is the “state statute of limitations applicable to
personal injury actions under the law of the state in which the § 1983 claim arises.” Eidson v.
Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007); see also Wilson v. Garcia,
471 U.S. 261, 275-76 (1985). The limitations period for § 1983 actions arising in Tennessee is
the one-year limitations provision found in Tenn. Code Ann. § 28-3-104(a).
Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); Hughes v. Vanderbilt Univ., 215 F.3d 543, 547
(6th Cir. 2000); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986). The Supreme Court’s
decision in Wallace v. Kato, 549 U.S. 384, 391-92, 397 (2007), makes clear that a claim for false
arrest or false imprisonment accrues at the time of arrest or, at the latest, when detention without
legal process ends.2
The Supreme Court explained:
Reflective of the fact that false imprisonment consists of detention without
legal process, a false imprisonment ends once the victim becomes held pursuant
to such process-when, for example, he is bound over by a magistrate or arraigned
on charges. . . . Thereafter, unlawful detention forms part of the damages for the
The Sixth Circuit has held that a Fourth Amendment claim based on an allegedly
unlawful arrest accrues at the time of arrest. Fox v. DeSoto, 489 F.3d 227, 233, 235 (6th Cir.
Tigner was arrested on October 30, 2014, and the federal indictment was returned on
February 26, 2015. Tigner filed the complaint more than one year later, on April 22, 2016;
therefore, Tigner’s claims are time barred.
Any claim for money damages arising from the allegedly unlawful imprisonment of
Plaintiff is premature. As the Supreme Court has explained:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
“entirely distinct” tort of malicious prosecution, which remedies detention
accompanied, not by absence of legal process, but by wrongful institution of legal
process. . . . “If there is a false arrest claim, damages for that claim cover the
time of detention up until issuance of process or arraignment, but not more. From
that point on, any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than detention itself.” . .
. Thus, petitioner’s contention that his false imprisonment ended upon his release
from custody, after the State dropped the charges against him, must be rejected. It
ended much earlier, when legal process was instituted against him, and the statute
[of limitations] would have begun to run from that date.
Id. at 389-90 (emphasis in original; footnote and citations omitted); see also id. at 390 n.3 (“This
is not to say, of course, that petitioner could not have filed suit immediately upon his false arrest.
While the statute of limitations did not begin to run until petitioner became detained pursuant to
legal process, he was injured and suffered damages at the moment of his arrest, and was entitled
to bring suit at that time.”).
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnotes omitted). Thus, a prisoner has no
cause of action under § 1983 if the claims in that action hinge on factual proof that would call
into question the validity of an order directing his confinement unless and until any prosecution
is ended in his favor, an existing conviction is set aside or the confinement is declared illegal. Id.
at 481-82; Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995). None of these events has
occurred in Tigner’s case.
On July 25, 2016, Tigner filed a motion requesting that summonses be issued and a
motion for an extension of time to serve process. (ECF Nos. 5 & 6.) Because this case is being
dismissed, these motions are DENIED as moot.
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
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.”). In this case, the Court finds that leave to amend is not warranted.
The Court DISMISSES Tigner’s complaint 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
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, 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 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, 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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