Johnson v. Shelby County Jail 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 8/31/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DEVELLE JOHNSON,
Plaintiff,
VS.

No. 16-2567-STA-egb

SHELBY COUNTY, 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 July 11, 2016, Plaintiff Develle Johnson 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 July 15, 2016, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act (APLRA@), 28 U.S.C.
'' 1915(a)-(b). (ECF No. 4.)
On July 20, 2017, the Court dismissed the complaint for failure to state a claim and granted
leave to file an amended complaint within 30 days. (ECF No. 6.) The order notified Plaintiff
that if he failed to file an amended complaint within the time specified, the Court would assess a
strike pursuant to 28 U.S.C. ' 1915(g) and enter judgment. However, Plaintiff 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 order of July 20, 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).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,

1 Plaintiff’s mail was returned as undeliverable on August 30, 2017. (ECF No. 7).
2

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/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: August 31, 2017

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