United States District Court, W.D. Tennessee, Western Division
ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING
PLAINTIFF OF APPELLATE FILING FEE
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE
27, 2016, Plaintiff Damien Hughes, who at the time of filing
was incarcerated at FCI Memphis in Memphis, Tennessee, filed
pro se a Complaint pursuant to 42 U.S.C. § 1983
accompanied by a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) On May 31, 2016, the
Court granted Hughes 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. 4.) In a screening
order entered November 17, 2017, the Court concluded that
Hughes 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 Hughes to file an amended
complaint and cure the defects the Court had found in the
initial Complaint. The Court gave Hughes thirty (30) days in
which to file his amended complaint and cautioned Hughes 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. The Court further
warned that any failure to comply with its requirements or
any other order would result in the dismissal of the case
without further notice.
December 12, 2017, the Court granted Hughes an extension of
time to file his amended complaint. Hughes had requested more
time because he had recently moved to a new facility and did
not immediately receive the mail from the Clerk containing
the Court's screening order. The Court found cause to
give Hughes until January 17, 2018, in which to file an
amended complaint. Then, on January 5, 2018, the Court
granted Hughes a second extension. In his second motion for
extension, Hughes stated that he had been housed in a
“SNU” unit since December 20, 2017, without
access to his legal materials or other property. Hughes also
stated that the property officer had been on vacation during
the holidays. Hughes stated that he intended to prepare his
amended complaint as soon as he was released from SNU, though
he did not indicate when that would be. The Court found cause
to give Hughes until February 16, 2018. The Court
specifically noted that “[w]hatever difficulties
Plaintiff has encountered over the last few weeks, the Court
finds no reason to grant Plaintiff an open-ended extension of
time until he is transferred out of ‘SNU'
housing.” Despite being granted two extensions of time,
Hughes 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 November 17, 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).
to 28 U.S.C. § 1915(a)(3), the Court must also consider
whether an appeal by Hughes 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 Hughes would
not be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Hughes 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).
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.
purposes of 28 U.S.C. § 1915(g), this is the first
dismissal of one of Hughes' 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).
Clerk is directed to prepare a judgment.