Lyons v. State of Tennessee et al

Filing 9

ORDER DISMISSING CLAIMS ORDER 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 6/6/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MONTREAL ROMARIUS LYONS
Plaintiff,
v.
STATE OF TENNESSEE, ET AL.,
Defendants.

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No. 16-2451-STA-egb

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

On June 16, 2016, Plaintiff Montreal Romarius Lyons (“Lyons”), who is currently
incarcerated at the Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee, filed
A Pro Se Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court granted Lyons 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. 6.) The Clerk shall record the
defendants as the State of Tennessee, Former Attorney General Robert E. Cooper, Jr., Former
District Attorney General Williams L. Gibbons, Assistant District Attorney General Stacy
McEndree, Attorney Gerald Green, Criminal Court Judge James C. Beasley, and Assistant
Attorney General Cameron L. Hyder.
BACKGROUND
On February 6, 2003, Lyons was charged with two counts of aggravated battery.
https://cjs.shelbycountytn.gov (Case No. 03 01051-02130068). On February 19, 2003, Lyons
was charged with two additional counts of aggravated battery and one count of especially

aggravated kidnapping. (Id.) On March 13, 2006, a jury convicted Lyons on all counts. (Id.)
Lyons’s conviction was affirmed in two separate appeals, and his two petitions for postconviction relief were denied. (Id.)
Lyons now alleges in his Pro Se Complaint that exculpatory evidence showing that he
was not at the scene of the crime was not introduced at trial. (Compl. at 3, ECF No. 1.)
According to Lyons, two other individuals, Bryant Adair and Jocelyn Parker, pleaded guilty to
“the crime” and told the trial court who was actually with them at the time of the incident. (Id.)
The victim LaToyna Cooper stated in an incident report that she could not identify anyone
because their faces and hands were covered. (Id.) Additionally, Lyons’s mother, Janice Lyons,
gave Lyons’s appointed trial attorney, Defendant Gerald Green, a Greyhound bus ticket, proving
that Lyons was not in Memphis at the time of the crime. (Id.) After Lyons’s case was from
Division 7 to Division 10, new statements identifying Lyons and placing him at the scene of the
crime were produced. (Id.) Lyons contends that these statements were inconsistent with the
original documents. (Id.) Lyons further claims that he was not originally picked out of a court
room line-up. (Id.) Lyons now alleges that he had other alibi witnesses as well as the bus ticket,
though none of this evidence was ever introduced in court. (Id.)
Lyons now believes that his attorney Defendant Green was railroading him. (Id.) Lyons
had twice requested that Green be removed from his case but had both requests denied. (Id.)
Lyons alleges that after his conviction, Defendant Beasley admitted that Defendant Green was
ineffective at Lyons’s “36.1 Illegal Sentencing Hearing.” (Id.) Lyons claims that he was
sentenced to consecutive terms because Defendant Green had failed to put on a defense. (Id.)
Lyons contends that he was denied a fair trial because of Defendant Green’s lack of defense.
(Id.)

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Lyons’s Pro Se Complaint seeks a copy of the Division 7 records with the testimony of
Bryant Adair and Jocelyn Parker and a copy of the incident report. Lyons also prays for
complete exoneration due to false imprisonment and wrongful conviction and $44 million in
damages for evidence tampering and cruel and unusual punishment. (Id. at 4.)
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 Pro Se 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

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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

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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.”).
ANALYSIS
Lyons filed his Pro Se Complaint on the court-supplied form for actions under 42 U.S.C.
§ 1983. 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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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
(1970).
I. Claims Against Defendants Cooper, Gibbons, McEndree, and Hyder
The Pro Se Complaint contains no specific factual allegations against Defendants Cooper,
Gibbons, McEndree, and Hyder. 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. Therefore, Lyons’s claims against these Defendants are DISMISSED.
Even if the Pro Se Complaint had alleged acts by these Defendants, Lyons cannot sue
Defendants Cooper, Gibbons, McEndree, or Hyder 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.” mImbler 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).

Lyons’s claim for money damages against

Defendants Cooper, Gibbons, McEndree, or Hyder 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");

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Roybal v. State of Tenn. Dist. Attorney’s Office, 84 F. App’x 589 (6th Cir. 2003). Therefore, for
this additional reason, Lyons’s claims against these Defendants fail.
II. State of Tennessee
Next, the Court holds that Lyons cannot sue the state of Tennessee under 42 U.S.C. §
1983. The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment
has been construed to prohibit citizens from suing their own states in federal court. Welch v. Tex.
Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); Employees of Dep’t of Pub. Health & Welfare v. Mo.
Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection &
Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity
at its pleasure, and in some circumstances Congress may abrogate it by appropriate legislation.
But absent waiver or valid abrogation, federal courts may not entertain a private person’s suit
against a State.” (citations omitted)). By its terms, the Eleventh Amendment bars all suits,
regardless of the relief sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its
sovereign immunity. Tenn. Code Ann. § 20-13-102(a). Moreover, a state is not a person within
the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S.
613, 617 (2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, Lyons’s
claims against Tennessee are DISMISSED.
III. Claims Against Green

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Lyons has likewise failed to state a claim against Defendant Green.

Courts have

uniformly held that attorneys are not state actors who can be sued under § 1983. See Polk
County v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of
state law when performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding.”); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (“A private attorney who is
retained to represent a criminal defendant is not acting under color of state law, and therefore is
not amendable to suit under § 1983.”); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968)
(private attorney who is appointed by the court does not act under color of state law); Haley v.
Walker, 751 F.2d 284, 285 (8th Cir. 1984) (per curiam) (attorney appointed by federal court is
not a federal officer who can be sued under Bivens). Therefore, Lyons’s claims against Green
are DISMISSED.
IV. Claims against Judge Beasley
Finally, Lyons has no claims against Judge Beasley. It is well settled that judges, in the
performance of their judicial functions, are absolutely immune from civil liability. Mireles v.
Waco, 502 U.S. 9, 9-10 (1991); Stump v. Sparkman, 435 U.S. 349, 363 (1978); Bright v. Gallia
Cnty., Ohio, 753 F.3d 639, 648-49 (6th Cir. 2014); Leech v. DeWeese, 689 F.3d 538, 542 (6th
Cir. 2012). Whether a judge or other official is entitled to absolute immunity in a given case
turns on a “functional” analysis. Harlow v. Fitzgerald, 457 U.S. 800, 810-11 (1982). The
“touchstone” for applicability of absolute judicial immunity is “performance of the function of
resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993). Lyons does not specifically allege how
Judge Beasley violated his constitutional rights. However, any actions taken by Judge Beasley
during the course of the criminal proceedings, such as making rulings and issuing orders and

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judgments, are within in the scope of his judicial function. Therefore, Lyons’s claims against
Judge Beasley are barred by judicial immunity.
V. False Imprisonment
To the extent that the Pro Se Complaint states any viable claim against a Defendant,
Lyons’s claims for false imprisonment 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). Roberson v. 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 and ends once the plaintiff “becomes held pursuant to such process.”1 At that point

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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
“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
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the tort of false imprisonment merges with the separate claim for malicious prosecution. Lyons
was indicted on February 6, 2003, and any claim he possessed for false imprisonment accrued on
that date. Lyons filed his Pro Se Complaint over thirteen years later on June 16, 2016. Any
claim for false imprisonment is DISMISSED as time barred.
VI. Malicious Prosecution
The Court also concludes that the Pro Se Complaint fails to state a claim for malicious
prosecution. 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, 549 U.S. at 390 (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], 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
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.”).
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“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) (footnote omitted).
The fact that Lyons was ultimately indicted by the grand jury on all of the charges shows
the existence of probable cause for the charges. “[T]he finding of an indictment, fair upon its
face, by a properly constituted grand jury, conclusively determines the existence of probable
cause for the purpose of holding the accused to answer.” Higgason v. Stephens, 288 F. 3d 868,
877 (6th Cir. 2002) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). In light of the
grand jury indictments, any malicious prosecution claim fails because Lyons cannot show the
absence of probable cause. What is more, none of the criminal proceedings appear to have been
resolved in Lyons favor.
For all of the foregoing reasons, Lyons complaint is subject to dismissal in its entirety for
failure to state a claim on which relief can be granted.
VII. 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); 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

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*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 concludes that leave to amend is not warranted.
CONCLUSION
The Court DISMISSES Lyons’s complaint as to the Defendants 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 Lyons’s complaint cannot
be cured.
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

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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).

IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 6, 2017.

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