Opinion
No. 14-1268-JDT-egb
03-12-2015
ANDRE BERNARD EASLEY, Plaintiff, v. BENTON COUNTY, ET AL., Defendants.
ORDER TO MODIFY THE DOCKET, DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On October 7, 2014, Plaintiff Andre Bernard Easley, an inmate who is currently incarcerated at the Whiteville Correctional Facility ("WCF") in Whiteville, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on October 8, 2014, 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. 4.) On December 22, 2014, the Clerk received a letter from the Benton County Sheriff's Office indicating that Plaintiff was no longer at the Jail. (ECF No. 5.)
When the complaint was filed, Plaintiff was incarcerated at the Benton County Jail in Camden, Tennessee. He was transferred from there to the Bledsoe County Correctional Complex ("BCCX") in Pikeville, Tennessee, and then again to the WCF. The Clerk is DIRECTED to modify the docket to reflect that Plaintiff's current address is the WCF, 1440 Union Springs Rd., P.O. Box 679, Whiteville, TN 38075.
On January 15, 2015, the Court issued an order that dismissed the complaint for failure to state a claim and granted leave to file an amended complaint within twenty-eight days. (ECF No. 6.) The order notified Plaintiff that if he "fails to file an amended complaint within the time specified, the Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment." (Id. at 14.) Plaintiff has not filed an amended complaint, and the time within which to do so has expired. Therefore, judgment will be entered in accordance with the order of dismissal.
At that time, the Tennessee Department of Correction's Felony Offender Information database showed that Plaintiff was incarcerated at the BCCX. See https://apps.tn.gov/foil. However, the order was inadvertently again sent to him at the Benton County Jail. It was returned as undeliverable and re-sent to him at the BCCX on January 27, 2015. The order was not returned, so the Court presumes that Plaintiff received it before he was transferred again to the WCF.
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Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal by Plaintiff 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 Plaintiff would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff 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 v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the PLRA. Therefore, the Plaintiff is instructed that if he wishes to take advantage of the PLRA's 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 Plaintiff, 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, 733 F.3d 175, 177-78 (6th Cir. 2013), cert. granted, 135 S. Ct. 43 (2014) (Nos. 13-1333, 13A985).
The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE