United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT
BE TAKEN IN GOOD FAITH, 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 5, 2019, the Court issued an order dismissing
Plaintiff Mickey Shanklin's pro se complaint and
granting leave to file an amended complaint. (ECF No. 16.)
Shanklin was warned that if he failed to file an amended
complaint within twenty-one days, the Court would dismiss the
case in its entirety, assess a strike pursuant to 28 U.S.C.
§ 1915(g), and enter judgment. (Id. at PageID
has not filed an amended complaint, and the time within which
to do so has expired. Therefore, this case is DISMISSED in
its entirety, and judgment will be entered in accordance with
the December 5, 2019, order dismissing the original complaint
for failure to state a claim.
to 28 U.S.C. § 1915(a)(3), the Court must also consider
whether an appeal by Shanklin 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).
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. It is CERTIFIED,
pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of
Appellate Procedure 24(a), that any appeal in this matter by
Shanklin would not be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Shanklin 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, Shanklin 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 Shanklin, 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. See 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.
Shanklin is warned that he will be barred from filing any
further actions in forma pauperis while he
is a prisoner unless he is in imminent danger of serious
physical injury. If any new civil complaint filed by Shanklin
while he is incarcerated is not accompanied by the entire
$400 civil filing fee, the complaint must contain allegations
sufficient to show that, at the time of filing the action, he
is in imminent danger of serious physical injury. If the new
complaint does not sufficiently allege imminent danger, it
will be dismissed without prejudice; Shanklin would then have
an opportunity to file, within 28 days, a motion to re-open
the case accompanied by the $400 civil filing fee.
Clerk is directed to prepare a judgment.
 Shanklin previously filed Shanklin
v. Crane Serv., Inc., No. 19-1224-JDT-cgc (W.D. Tenn.
Nov. 26, 2019) (dismissed for failure to state a claim), and
Shanklin v. Strandquist, No. 19-2622-JTF-dkv ...