United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING MOTION TO AMEND, DISMISSING COMPLAINT,
DENYING SECOND MOTION FOR DEFAULT JUDGMENT, NOTIFYING
PLAINTIFF OF APPELLATE FILING FEE AND NOTIFYING PLAINTIFF OF
RESTRICTIONS UNDER 28 U.S.C. § 1915(g)
D. TODD UNITED STATES DISTRICT JUDGE
December 16, 2015, Plaintiff Mario Myers
(“Myers”), who is currently a pre-trial detainee
at the Shelby County Criminal Justice Center
(“Jail”) in Memphis, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983, which
included fellow inmates Johnny Ray Rowland, Antwon Rainer,
and William Spade as additional Plaintiffs. (ECF No. 1.) On
January 7, 2016, this Court severed the Plaintiffs'
claims, leaving Myers as the sole Plaintiff in this matter.
(ECF No. 3.) On January 19, 2016, Myers filed a motion to
proceed in forma pauperis. (ECF No. 5.) The Court
granted 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.) On August 15, 2016,
the Court denied Myers's motion for default
judgment and dismissed the complaint for failure to
state a claim but granted leave to further amend within
thirty days. (ECF No. 9.) The Plaintiff filed his motion to
amend on September 1, 2016 (ECF No. 11); the motion is
GRANTED. The Clerk shall record the Defendants as Shelby
County, Sheriff Bill Oldham, and Grievance Coordinator L.
Austin. Defendants are sued in their individual and official
amended complaint contains no new factual allegations, but
rather argues the merits of his original claim. Myers states
that Defendants have a duty to follow policies and procedures
to protect him from risk of hazard and/or harm and that they
were negligent in failing to do so, thereby putting Myers at
risk of hazard and/or harm while in their custody.
(Id. at 1.) Myers further alleges the Defendants
obstructed justice to cover up their negligence by
confiscating swabbed samples of black mold material.
(Id.; see also ECF Nos. 11-1 & 11-2.)
He seeks two million dollars in compensation. (Id.
legal standards for assessing the claims in an inmate's
complaint were set forth in the previous order (ECF No. 9 at
2-4) and will not be reiterated here. In that prior order,
the Court determined that Myers had failed to state a claim
on which relief could be granted because he did not allege
that any named Defendant was directly involved with the
alleged conditions or had a culpable state of mind;
therefore, he did not sufficiently plead the subjective
component of an Eighth Amendment claim. (Id. at
7-10.) The amended complaint wholly fails to cure those
deficiencies and is also subject to dismissal for failure to
state a claim on which relief may be granted.
Court DISMISSES Myers'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).
to 28 U.S.C. §1915(a)(3), the Court must also consider
whether an appeal by Myers 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 Myers would not be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Myers 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, Myers 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
analysis under 28 U.S.C. § 1915(g) of future filings, if
any, by Myers, this is the third 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).
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the ground that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Consequently, Myers is warned that
he is barred from filing any further actions in forma
pauperis while he is a prisoner within the meaning of 28
U.S.C. § 1915(h) unless he is in imminent danger of
serious physical injury. Any civil action filed by Myers
after the date of the judgment in this case must be
accompanied by either the $400 civil filing fee or
allegations sufficient to show that, at the time of filing
the action, he is in imminent danger of serious physical
injury. If Myers submits any complaint that does not allege
he is under imminent danger of serious physical injury or is
not accompanied by the filing fee, the complaint will be
filed, but Myers will be required to remit the full filing
fee. If he fails to do ...