Stewart v. Shelby County Government

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

ADRIAN STEWART, ) ) Plaintiff, ) ) VS. ) No. 18-2522-JDT-cgc ) SHELBY COUNTY ) GOVERNMENT, ET AL., ) ) Defendants. )

ORDER DIRECTING ENTRY OF JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On August 13, 2019, the Court issued an order dismissing Plaintiff Adrian Stewart’s pro se complaint and granting leave to file an amended complaint. (ECF No. 7.) The Court warned Stewart that if he failed to file an amended complaint within twenty-one days, the Court would assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment. (Id. at PageID 66-67.) Stewart 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 August 13, 2019, order dismissing the complaint for failure to state a claim. Stewart is assessed his first strike under § 1915(g). This strike shall take effect when judgment is entered. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). 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 Stewart would not be taken in good faith. The Court must also address the assessment of the $505 appellate filing fee if

Stewart 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, §§ 1915(a)-(b). Therefore, Stewart 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 the PLRA and McGore 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.

The Clerk is directed to prepare a judgment. IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE