United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT
BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE
D. TODD, UNITED STATES DISTRICT JUDGE.
November 6, 2019, the Court issued an order dismissing
Plaintiff Jermaine Moore's pro se amended
complaint and granting leave to file a second amended
complaint. (ECF No. 9.) On November 20, 2019, Moore submitted
his amendment, (ECF No. 10), which is before the Court for
screening. Moore again lists the Madison County Sheriff's
Department and Lieutenant Lisa Balderrama as Defendants. He
also newly lists Captain Tom Rudder. The Clerk shall include
Captain Rudder as a Defendant in this case.
second amended complaint, Moore reiterates his concerns about
the black mold and mildew in the showers, pods, and cells at
the Madison County Criminal Justice Complex (CJC). (ECF No.
10 at PageID 37.) He asserts that “living in these
conditions can pose a substantial risk of serious harm
towards my health.” (Id. at PageID 38.) Moore
asserts without elaboration that Lieutenant Balderrama and
Captain Rudder “are very aware of these condition[s]
and still have yet to do anything about these issues.”
(Id.) Moore seeks $7 million in damages and
condemnation of the CJC. (Id.)
legal standards for assessing the claims in an inmate's
complaint were set forth in the prior order of dismissal,
(ECF No. 9 at PageID 31-32), and will not be reiterated here.
For the reasons explained in the previous order,
(id. at PageID 32-33), Moore still fails to state a
claim against any named Defendant.
allegations about black mold do not state an Eighth Amendment
claim. He alleges that black mold is present “in the
showers, cells[, ] and the pod.” Several courts in this
circuit have held that the presence of black mold on the
floor and in the shower “does not create a condition
‘intolerable for prison confinement.'”
Reitmeyer v. Monroe, No. 1:19-CV-25, 2019 WL 549058,
at *3 (W.D. Mich. Feb. 12, 2019) (quoting Rhodes v.
Chapman, 452 U.S. 337, 348 (1981)); see also Morales
v. White, No. 07-2018, 2008 WL 4584340, at *14 (W.D.
Tenn. 2008) (holding that allegations that black mold is
located at some place within a housing unit is not sufficient
to support an Eighth Amendment claim); Lyons v.
Wickersham, No. 2:12-CV-14353, 2012 WL 6591581, at *4
(E.D. Mich. Dec. 18, 2012) (“Plaintiff's conclusory
allegations about the presence of mold do not demonstrate the
existence of a sufficiently serious risk to prisoner
Moore does not allege that he suffered any health effects
from his exposure to the black mold. He alleges only that the
conditions “can pose a substantial risk of serious harm
towards my health.” Moore's hypothetical
allegations of a health risk because of his exposure to the
black mold at the CJC are insufficient to state an Eighth
Amendment violation. See Lewis v. McClennan, 7
Fed.Appx. 373, 375 (6th Cir. 2001); Morales, 2008 WL
4585340, at *15; Reitmeyer, 2019 WL 549058, at *3;
Lyons, 2012 WL 6591581, at *4.
Moore's second amended complaint also fails to state a
claim on which relief can be granted, this case is DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). Leave to further amend is DENIED.
to Federal Rule of Appellate Procedure 24(a) and 28 U.S.C.
§ 1915(a)(3), the Court must also consider whether an
appeal by Moore 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 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 that any appeal in this matter by Moore would not
be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Moore 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 in the Prison Litigation Reform Act (PLRA), 28
U.S.C. §§ 1915(a)-(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. Therefore, Moore is instructed that if he wishes to
take advantage of the installment method for paying the
appellate filing fee, he must comply with the PLRA and
McGore by filing an updated in forma
pauperis affidavit and a current, certified copy of his
inmate trust account statement for the last six months.
analysis under 28 U.S.C. § 1915(g) of future filings, if
any, by Moore, 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. See
Coleman v. Tollefson, 135 S.Ct. 1759, 1763-64 (2015).
Clerk is directed to prepare a judgment.