Mhoon v. James et al

Filing 8

ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Chief Judge S. Thomas Anderson on 5/10/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
EDGAR MHOON,

)
)
Plaintiff,
)
)
v.
)
No. 16-2392-STA-cgc
)
ALLEN JAMES ET AL.,
)
)
Defendants.
)
______________________________________________________________________________
ORDER DIRECTING ENTRY OF JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
______________________________________________________________________________
On June 3, 2016, Plaintiff Edgar Mhoon, who is presently incarcerated at the Shelby
County Criminal Justice Center 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. In an
order issued June 6, 2016, the Court granted Mhoon 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).
On March 23, 2017, the Court dismissed the complaint for failure to state a claim and
granted Mhoon leave to file an amended complaint within 30 days (ECF No. 6). The order
notified Plaintiff that if he “fails to file an amended complaint within the time specified, the
Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.” Mhoon did not
file an amended complaint within the time specified or seek an extension of time in which to do
so.

Therefore, judgment will be entered in accordance with the March 23, 2017, order

dismissing the complaint for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1).
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
led 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 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
second dismissal of one of his cases as frivolous or for failure to state a claim.1 This “strike”
shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64
(2015).
The Clerk is directed to enter judgment.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 10, 2017

1

See Mhoon v. Luttrell, et al., No. 00-2239-BBD (W.D. Tenn. Mar. 28, 2000) (dismissed
as frivolous).