Jackson v. Taylor et al

Filing 12

ORDER CONSOLIDATING CASES, MODIFYING THE DOCKET, DISMISSING FEDERAL CLAIMS WITH PREJUDICE, DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE, CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Chief Judge S. Thomas Anderson on 2/7/18. (cdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOE M. JACKSON, JR.
Plaintiff,
VS.
SUPERINTENDENT DERRICK M.
TAYLOR, ET AL,
Defendants.

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No. 16-2375-STA-egb

ORDER CONSOLIDATING CASES,
MODIFYING THE DOCKET,
DISMISSING FEDERAL CLAIMS WITH PREJUDICE,
DISMISSING STATE LAW CLAIMS WITHOUT PREJUDICE,
CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On May 31, 2016, Plaintiff Joe M. Jackson, Jr., an inmate at the South Central
Correctional Facility in Clifton, Tennessee, filed two pro se complaints alleging various federal
and state law claims.1 Both complaints were accompanied by a motion for leave to proceed in
forma pauperis. Jackson’s first complaint was docketed as 16-2375, this instant matter, and his
second complaint was docketed as case number 16-2376. In both cases, the Court granted
Jackson 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).
Although Jackson adds additional defendants in the second complaint, both complaints
contain the same factual allegations. Accordingly, because both complaints involve common

1

Although Jackson is presently incarcerated, this matter does not relate to events occurring
during his incarceration.

questions of law or fact, the Court ORDERS the two cases to be consolidated for all purposes,
pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, under the earlier docket
number. The Clerk shall close file number 16-2376 after placing a copy of this order in the
file. Thereafter, the Clerk shall place copies of all documents in case number 16-2375.
Jackson’s complaint seeks relief pursuant to 42 U.S.C. §§ 1983, 1985(3), and 1988; 29
U.S.C. §§ 1132(a)(1)(B), 1132(a)(3), and 185; and T.C.A. § 28-3-109(a)(3). The Clerk shall
MODIFY the docket and record the defendants as Superintendent Derrick M. Taylor, Secretary
Connie W. Wacaster, Assistant Superintendent W.B. McDaniel, Trainmaster Jeremy T. Brown,
General Superintendent Andrew Martin, Trainmaster L.G. Jenkins, Engineer Theodore Elliott,
Medical Services Senior Manager Hallie Burhoe, Dale McPherson, Canadian National/Illinois
Central Gulf Railroad (“Railroad”),2 United Transportation Union (“UTU”), Local Chairman
William A. St. John, and Local Chairman Jeff W. Callahan.

Defendants are sued in their

individual and official capacity.
BACKGROUND
This action arises out of Jackson’s termination from his position with the Railroad. He
alleges that he was terminated without due process and without appropriate representation from
his union and that he was subjected to discriminatory conduct by Defendants. On March 3,
2007, Jackson, an African-American male, was a member of the UTU and was employed as a
conductor with the Railroad. (Compl. at 6, ECF No. 1.) On March 7, 2007, Jackson received a
letter notifying him of a formal investigation by Assistant Superintendent T.D. Corzine, who is
not a party to this suit, to determine if Jackson had any responsibility regarding how hazardous
equipment was placed on a train on March 3, 2007. (Id.) The complaint alleges that, on April
2

Canadian National/Illinois Central Gulf Railroad is added as a defendant pursuant to Jackson’s
letter from April 27, 2017. (ECF No. 11.)
2

11, 2007, Jackson signed a resolution admitting guilt to the above described infraction without
any UTU representation and over his protestations of unfairness which were disregarded by
Railroad officials. (Id. at 7-8.)
On April 21, 2007, Jackson was working alongside a trainmaster as a brakeman. (Id. at
8.) Jackson was allegedly told by the Caucasian trainmaster that he needed to have a urinalysis
and breathalyzer test because “that’s how we treat blacks around here.” (Id.) After taking the
tests and getting results of .038 and .031 on the breathalyzer, Jackson was removed from service
and taken home by a Railroad official. (Id. at 9.) On May 3, 2007, Jackson received a letter
stating that he had violated the Railroad’s Substance and Alcohol Free Environment Policy and
was required to get a referral for a substance abuse professional. (Id.) Ten days after requesting
a referral, Jackson contacted Superintendent Taylor about returning to work but was told by his
secretary that Superintendent Taylor had fired him. (Id.) On June 15, 2007, after receiving a
letter officially terminating him, Jackson contacted his union representative, Chairman St. John,
regarding his dismissal without a hearing and was told by St. John that an appeal would be filed.
Jackson contends that his unemployment during the appeal process was in violation of
UTU’s Collective Bargaining Agreement (“CBA”). (Id. at 9-13.) Despite frequent calls from
Jackson, St. John did not meet with Jackson until June 2009, twenty-four months after the appeal
was processed. (Id. at 13.) At that time, St. John informed Jackson that Superintendent Taylor
did not want to do business with St. John and that Jackson would not be able to return to work
while Superintendent Taylor was in his position; however, it might be possible for Jackson to get
his back pay for being fired without a hearing. (Id.) On June 10, 2010, Jackson learned from St.
John that there was a new Superintendent, Andrew Martin, and that he was willing to allow
Jackson to come back to work, but without receiving back pay. (Id.)

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After Jackson expressed reluctance at going back to work without receiving back pay, he
received two “harassing” and “coercive” phone calls from St. John to “take the deal” while it
was still available.

(Id. at 13-14)

On July 1, 2010, Jackson was persuaded by the

“discriminatory and dishonest” representations of St. John to sign a Last Chance Agreement
(“Agreement”) without reading; Jackson was assured by St. John that it was a good agreement.
(Id. at 14.) After signing the agreement, Jackson met with Superintendent Martin who told him
that he did not need a referral to a substance abuse professional, but he had to get a physical and
drug test so that he could get back to work and “start making some money.” (Id.) On July 7,
2010, Jackson went back to work, 1,190 days after being terminated. (Id. at 15.)
When Jackson returned to work and was told by other employees that he did not get a fair
deal, he spoke to Martin. (Id.) Martin told Jackson that the only portion of the Agreement that
would be enforced was the denial of back pay and to speak with St. John regarding any issues
concerning the Agreement. (Id.) Jackson confronted St. John, telling him that the Agreement
did not contain a provision for Jackson to receive back pay although the Railroad had given
retroactive pay previously to terminated Caucasian employees who were not held out of service
as long as Jackson. (Id.) Jackson alleges that St. John colluded with Martin and Taylor with no
intention to be bound by the CBA, instead, creating an Agreement that was breached from the
day it was signed. (Id.)
In another instance of alleged failed representation, Jackson signed a resolution on
September 2, 2010, in which he was given a twenty-day suspension for not “marking off of work
properly.” (Id. at 16.) Jackson signed the resolution without any union representation because
the alternative was being fired. (Id.) In a separate incident, on September 25, 2010, Jackson

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missed a call for a work assignment, resulting in an investigation which was postponed on
October 18, 2010, at the request of UTU Chairman Callahan. (Id.)
The last incident described in the complaint began on October 29, 2010, when Jackson
was called to work as a conductor on a grain train. (Id.) While preparing the trains, Jackson was
accused by the African-American engineer, T.L. Elliott, of calling him a “nigger.” (Id. at 17.)
As a result of the accusation, Trainmasters Jenkins and Brown boarded the train, told Jackson
and Elliot to tie down the train, got all the parties in a truck, and asked Elliot to write down
everything that happened. (Id.)
That evening, Jenkins terminated Jackson based on Elliott’s accusations and did not pay
him for that day or for the days Jackson had been scheduled to work prior to termination. (Id. at
18.) On December 3, 2010, after several postponements of the investigation at the request of
Chairman Callahan, Jackson was dismissed effective immediately based solely on the testimony
of Elliott. (Id. at 19.) Jackson contends that his equal rights were violated because he was
subjected to harsher discipline than Caucasian employees who committed comparable acts.
In a state court criminal trial on January 21, 2014, that resulted in Jackson’s present
incarceration, state investigators were told by Railroad employees that Jackson was terminated
for calling another employee a “nigger.” This “evidence” was used, in part, to convict Jackson.
(Id. at 20.)3
Jackson seeks to have the Court void the Agreement and to order the Railroad to pay him
back pay from April 21, 2007, through July 1, 2010, in the amount of $585,000 and to order

3

To the extent that Jackson alleges that his 2014 conviction is invalid because of Defendants’
alleged misconduct, the claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994) (holding that
“civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal
judgments.”)
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payment of other employee benefits as compensatory damages. He also seeks punitive damages
and attorney fees. (Id. at 25-27.)
SCREENING 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, 415 F. App’x 608, 612-13 (6th
Cir. 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’”) (quotation omitted); 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.”).
ANALYSIS
I. Statute of Limitations
A. 42 U.S.C. § 1983

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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 Tennessee Code Annotated § 28-3-104(a). Roberson
v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005).

Jackson’s final dismissal from the Railroad

occurred on December 3, 2010. The complaint was signed on May 27, 2016, more than six years
later. Therefore, any actions related to Plaintiff’s alleged wrongful termination and the events
leading up to his termination are time-barred. Additionally, any actions by Defendants giving
rise to a claim under § 1983 that Jackson’s right to free speech was violated when he was
disciplined for using a derogatory term toward another employee occurred prior to December 3,
2010. For that reason, all of Jackson’s § 1983 claims are DISMISSED as time-barred.4
Furthermore, claims arising under 42 U.S.C. § 1983 generally may only be brought
against state officials acting under color of state law. See, e.g., Haines v. Fed. Motor Carrier
Safety Admin., 814 F.3d 417, 429 (6th Cir. 2016). Jackson has not alleged that any of the
defendants are state officials or acted under color of state law. Therefore, the § 1983 claims are
DISMISSED on this ground as well.
B. 42 U.S.C. § 1985(3)
Likewise, to the extent that Jackson alleges that Defendants conspired under 42 U.S.C. §
1985(3) to deprive him of equal protection of, and equal privileges and immunities under, the
laws, those claims are also time-barred by the one-year statute of limitations on civil rights

4

Because the statute of limitations defect is obvious from the face of the complaint, sua sponte
dismissal of the time-barred claims is appropriate. See Alston v. Tennessee Dep’t of Corr., 28 F.
App’x 475, 476 (6th Cir. 2002) (citation omitted).
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actions in Tennessee. All actions occurred on or before December 3, 2010, the date that Jackson
was terminated, which was six years prior to the filing of the complaint. See Tenn. Code Ann. §
28-3-104 (1988); Wilson, 471 U.S. 261 (1985). Jackson’s § 1985(3) claims are DISMISSED as
time-barred.
C. 42 U.S.C. § 1981
The statute of limitations for employment discrimination claims under 42 U.S.C. § 1981
is four years. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004) (determining that
the four-year statute of limitations period found at 28 U.S.C. § 1658 is applicable to § 1981
actions).

Although the time period is longer, Jackson’s claims filed six years after his

termination are still barred under the statute of limitation of § 1981 and are DISMISSED.
D. 29 U.S.C. § 185(a)
Although Jackson asserts a claim pursuant to § 301 of the Labor Management Relations
Act, 29 U.S.C. § 185, it is more accurately construed as a hybrid claim implied under the
National Labor Relations Act. DelCostello v. International Bd. of Teamsters, 462 U.S. 151, 16465, (1983). See Daniels v. Pipefitters’ Assoc. Local Union No. 597, 945 F.2d 906, 921 (7th Cir.
1991). A breach of fair representation claim has two components.
A hybrid section 301 action involves two constituent claims: breach of a
collective bargaining agreement by the employer and breach of the duty of fair
representation by the union. See DelCostello v. International Bhd. of Teamsters,
462 U.S. 151, 162, 103 S. Ct. 2281, 2289, 76 L. Ed. 2d. 476 (1983). “‘[T]he
two claims are inextricably interdependent.’” Id. at 164, 103 S. Ct. at 2290
(citation omitted). As such, “to recover against either the Company or the
Union, [the plaintiff] must show that the Company breached the [Collective
Bargaining] Agreement and that the Union breached its duty of fair
representation.” Bagsby v. Lewis Bros., 820 F.2d 799, 801 (6th Cir. 1987)
(emphasis removed). Indeed, “the case [an employee] must prove is the same
whether he sues one, the other, or both.” DelCostello, 462 U.S. at 165, 103 S.
Ct. at 2291.
Black v. Ryder, 15 F.3d 573, 583-84 (6th Cir. 1994).
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The applicable statute of limitations for a hybrid § 301 action is six months. DelCostello,
462 U.S. at 169 (1983). A claim under § 301 accrues “when the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the acts constituting the alleged
violation.” Noble v. Chrysler Motors Corp., Jeep Div., 32 F.3d 997, 1000 (6th Cir.1994)
(citations and quotations omitted). However, the claims against the employer and the union in a
hybrid action accrue simultaneously, and “the timeliness of the suit must be measured from the
date on which the employee knew or should have known of the union’s final action or should
have known of the employer’s final action, whichever occurs later.” Robinson v. Central Brass
Mfg. Co., 987 F.2d 1235, 1239 (6th Cir. 1993) (quoting Proudfoot v. Seafarer's International
Union, 779 F.2d 1558, 1559 (11th Cir. 1986)). See also McCreedy v. Local Union No. 971,
UAW, 809 F.2d 1232, 1236 (6th Cir.), reh’g denied, 818 F.2d 6 (6th Cir. 1987) (stating that a
hybrid section 301 claim “accrues against the company when it accrues against the union”).
Therefore, when assessing the timeliness of such a complaint, the Court “must establish a
single accrual date for [the hybrid] section 301 claim and then ascertain whether the plaintiff[ ]
filed suit within six months of that date.” Fox v. Parker Hannifin Corp., 914 F.2d 795, 803 (6th
Cir. 1990). Here, the accrual date was no later than December 3, 2010. Jackson’s complaint was
clearly filed more than six months after that date. Therefore, Jackson’s hybrid claims are timebarred.
II.

Claims 29 U.S.C. § 1132
Although Jackson cites the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1132(a)(1)(B), as a statute under which he has filed his complaint, he later clarifies in
the complaint that he merely cites ERISA as grounds for his request for relief in seeking the
retirements benefits not allocated during his alleged unlawful termination and not as an

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independent ground for relief. (Compl. at 25-26.) Therefore, to the extent that Jackson has
brought any claims under ERISA, those claims are DISMISSED.
III.

Claims for Breach of Contract
Jackson’s remaining claims rest on allegations of breach of contact. Tennessee’s statute

of limitations for contract claims is six years. Mackey v. Judy’s Foods, Inc., 867 F.2d 325, (6th
Cir. 1989); Tenn. Code Ann. § 28-3-109. Tennessee courts have adopted the discovery rule for
breach of contract actions. The rule provides that a cause of action for breach of contract begins
to run when a party either discovers or could have or should have discovered the breach through
an exercise of reasonable judgment. Goot v. Metropolitan Government of Nashville and
Davidson County, Case No. M2003-02013-COA-R3-CV, 2005 WL 3031638 *11 (Tenn. App.
Nov. 9, 2005). In cases where the discovery rule is applied, the statute is tolled until the plaintiff
discovers the breach for one of the following reasons: 1) the breach was difficult for plaintiff to
detect; 2) the defendant was in a far superior position to comprehend the breach and the resulting
damage; and 3) the defendant had reason to believe that the plaintiff remained ignorant that he
had been wronged. In other words, despite due diligence, the plaintiff would have been unlikely
to discover the breach. Id. (quoting, 31 SAMUEL WILLISON, A TREATISE ON THE LAW
OF CONTRACTS §79:14, at 304 (Richard A. Lord ed., 4th ed. 2004)). In Jackson’s case, he
alleges that the breach of the contract occurred on July 1, 2010, when he signed the Agreement,
which is within six years of filing of the complaint.
This Court has supplemental jurisdiction over Jackson’s state law claims under 28 U.S.C.
§ 1367(a). That section provides as follows: “in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form part of

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the same case or controversy under Article III of the United States Constitution.” 28. U.S.C. §
1367(a). Still, district courts may decline to exercise supplemental jurisdiction over a related
claim under certain circumstances when:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
Id. at § 1367(c).
Generally, if a federal claim is dismissed before trial, a state claim should be dismissed as
well. Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992) (quoting United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
In the present case, the Court declines to exercise supplemental jurisdiction over
Jackson’s remaining state law claims. The Court has dismissed Jackson’s federal claims because
they are time-barred. Having dismissed the claims alleged under federal law, the Court finds no
reason to exercise supplemental jurisdiction over Jackson’s remaining claims. Therefore, the
claims are DISMISSED without prejudice to re-filing them in state court.
II. 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 dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013). For the reasons already discussed, the Court cannot conclude that an
amended pleading would cure the deficiency in Jackson’s federal claims, which are time-barred.

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Any amendment to cure these defects would be futile. Because the Court is dismissing the
remaining state law claims without reaching the merits of the pleadings, the Court finds it
unnecessary to consider whether Jackson should be granted leave to amend those claims. For
these reasons, leave to amend is DENIED.
CONCLUSION
The Court DISMISSES Jackson’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
DENIED because the deficiencies in Jackson’s Complaint cannot be cured.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Jackson 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 Jackson would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Jackson
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

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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,

Jackson 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 Jackson, 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/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: February 7, 2018.

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