Evans v. Odom et al

Filing 15

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 11/16/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TERRANCE LYNN EVANS,
Plaintiff,
vs.
BILL OLDHAM, et.al.,
Defendants.

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No. 2:16-cv-2785-STA-egb

ORDER DIRECTING ENTRY OF JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On September 30, 2016, Plaintiff Terrance Lynn Evans, who at the time of filing was
incarcerated at the Shelby County Criminal Justice Complex in Memphis, Tennessee, filed pro
se a Complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma
pauperis. The Court granted Evans 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
December 1, 2016, Evans notified the Court that he was no longer incarcerated at the jail. The
same day, the Court ordered Evans to file a non-prisoner in forma pauperis affidavit. On January
9, 2017, Evans informed the Court of his new mailing address, and the Court entered a second
order directing Evans to file a non-prisoner in forma pauperis affidavit. On February 9, 2017,
Evans filed a motion for leave to proceed in forma pauperis as a non-prisoner.
In an order entered October 6, 2017, the Court granted Evans’s motion for leave to
proceed in forma pauperis as a non-prisoner. In the same order, the Court concluded that Evans
had failed to state a claim for relief under 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B).

However, the Court found good cause to allow Evans to file an amended complaint and cure the
defects the Court had found in the initial Complaint. The Court gave Evans thirty (30) days in
which to file his amended complaint and cautioned Evans 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. Evans has not filed an amended complaint within the time
allowed and has not requested an extension of time in which to do so. Therefore, judgment will
be entered in accordance with the October 6, 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
Evans 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 Evans would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Evans
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good
faith does not affect an indigent 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).

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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 Evans, 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: November 16, 2017

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