Goyer v. Ashe "Camp Admin" United States of America

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BRYAN GOYER, )

)

Plaintiff, )

)

vs. ) No. 21-cv-2059-JTF-atc

)

B. ASHE “CAMP ADMIN” and THE UNITED )

STATES OF AMERICA, )

)

Defendants. )

ORDER GRANTING MOTION FOR EXTENSION OF TIME TO AMEND (ECF NO. 7)

DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (ECF NO. 7);

DISMISSING THE AMENDED COMPLAINT (ECF NO. 8) WITH PREJUDICE;

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH;

NOTIFYING GOYER OF THE APPELLATE FILING FEE;

AND NOTIFYING GOYER OF THE COURT’S STRIKE RECOMMENDATION

PURSUANT TO 28 U.S.C. § 1915(g)

Before the Court are pro se Plaintiff Bryan Goyer’s: (1) “Motion To File Timely Appeal

And Motion For Extension Of Time … To Amend”, which he filed on May 1, 2023 (ECF No. 7

(“May 1 Motion”)); and (2) “Motion To Amend Claims”, which he filed on May 5, 2023. (ECF

No. 8 (“May 5 Motion”).)

For the reasons explained below: (1) the May 1 Motion (ECF No. 7) is DENIED to the

extent Goyer seeks leave to appeal in forma pauperis the Court’s April 4, 2023 “Order Dismissing

The Complaint With Prejudice In Part And Without Prejudice In Part And Granting Leave To

Amend The Claims Dismissed Without Prejudice” (ECF No. 6 (“Screening Order”)); (2) the May

1 Motion (ECF No. 7) is GRANTED to the extent Goyer seeks an extension of time to amend the

complaint’s claims that the Court dismissed without prejudice in the Screening Order; (3) the May

5 Motion, which is construed as an amended complaint (ECF No. 8 “Amended Complaint”), is

DISMISSED WITH PREJUDICE for failure to allege facts stating a claim to relief; and (4) leave

to amend the Amended Complaint is DENIED.

I. BACKGROUND

The factual and procedural background of the case is set forth in the Screening Order,

which dismissed the complaint (ECF No. 1) with prejudice in part and without prejudice in part.

(See ECF No. 6 at PageID 26-27.) In the Screening Order, the Court granted leave to amend,

within twenty-one (21) days, Goyer’s claim under the Federal Tort Claims Act, 28 U.S.C. § 261,

et seq. (“FTCA”) against Defendant United States of America (“USA”) arising (1) from the

Incident1 and (2) from alleged malpractice during the period January 20, 2018 through January 19,

2021 (referred to as the “Claim Dismissed Without Prejudice”). (Id. at PageID 39.) Pursuant to

the Screening Order, Goyer’s deadline to amend the Claim Dismissed Without Prejudice was

Tuesday, April 25, 2023. On April 4, 2023, the Clerk of Court mailed the Screening Order to

Goyer at the Federal Correctional Institute in Milan, Michigan (“FCI-Milan”).2

II. THE MAY 1 MOTION

A. Request For Extension Of Time To Amend

In the May 1 Motion, Goyer “asks the Court for an extension of time to amend his

complaint due to late notification of … [the] Court’s [Screening Order] decision.” (ECF No. 7 at

PageID 42.) Goyer alleges that he received the Screening Order on April 21, 2023. (Id. at PageID

41.)

1 See ECF No. 6 at PageID 26.

2 See ECF No. 5 (Goyer’s January 4, 2023 letter notifying the Court of Goyer’s facility

transfer to the FCI-Milan).

For good cause shown, the Court GRANTS the May 1 Motion (ECF No. 7) to the extent

Goyer seeks an extension of time to amend the Claim Dismissed Without Prejudice. The May 5

Motion (ECF 8) is construed as Goyer’s amendment of the Claim Dismissed Without Prejudice.

The instant Order will screen the Amended Complaint (ECF No. 8) pursuant to the Prison

Litigation Reform Act, 28 U.S.C. §§ 1915, et seq. (“PLRA”).

B. Request For Leave To Appeal The Screening Order

In the May 1 Motion, Goyer also seeks to “file timely appeal with prejudice in part [sic].”

(ECF No. 7 at PageID 41.) Goyer’s request is construed as an application seeking leave to appeal

in forma pauperis the Screening Order’s dismissal of the Claims Dismissed With Prejudice. For

two reasons, Goyer’s request is not well taken.

First, the Screening Order’s dismissal of the complaint with leave to amend is neither an

appealable final order nor an appealable interlocutory or collateral order.

The dismissal of an action without prejudice may be appealable. See 28 U.S.C. §

1291 (“The court of appeals shall have jurisdiction of appeals from all final decisions of the district

courts of the United States”). The appealability inquiry turns on whether a dismissal without

prejudice constitutes a final order under § 1291. Azar v. Conley, 480 F.2d 220, 222-23 (6th Cir.

1973) (internal citations omitted). “For a dismissal without prejudice to be inherently final, it

must, as a practical matter, prevent the parties from further litigating the merits of the case in

federal court.” Robert N. Clemens Tr. v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir.

2007) (internal citation omitted). “Courts of appeals have uniformly held that an order dismissing

a complaint is not a final order when it is possible for a plaintiff to file an amended complaint

resurrecting the lawsuit.” Network Commc'n v. Mich. Bell Tel. Co., 906 F.2d 237, 238 (6th Cir.

1990) (citing cases). The Screening Order is not an appealable final decision because the Court

“dismiss[ed] [the] complaint, as opposed to [the] action.” See Thompson v. Mich. Dep’t of Corr.,

23 F. App’x 486, 487-88 (6th Cir. 2001). The Screening Order did not, “as a practical matter,

prevent the parties from further litigating the merits of the case in federal court.” See United States

v. Yeager, 303 F.3d 661, 664 (6th Cir. 2002). The Screening Order is a non-appealable nonfinal

order because the Court granted leave to amend the complaint (ECF No. 6 at PageID 39-40) and

did “not ... enter[ ] a final judgment.” See Clemens, 485 F.3d at 845.

Second, the May 1 Motion would not, in any event, satisfy the requirements of 28 U.S.C.

§ 1915(a) to proceed in forma pauperis on appeal.

To ensure access to the courts, 28 U.S.C. § 1915(a) permits an indigent plaintiff to avoid

payment of filing fees by filing an in forma pauperis affidavit. Under that section:

any court of the United States may authorize the commencement,

prosecution or defense of any suit, action or proceeding, civil or

criminal, or appeal therein, without prepayment of fees or security

therefor, by a person who submits an affidavit that includes a

statement of all assets such prisoner possesses that the person is

unable to pay such fees or give security therefor. Such affidavit shall

state the nature of the action, defense or appeal and affiant's belief

that the person is entitled to redress.

28 U.S.C. § 1915(a). The Court must conduct a satisfactory inquiry into a plaintiff’s ability to pay

the filing fee and prosecute the lawsuit. Id. A plaintiff seeking in forma pauperis standing must

respond fully to the questions on the Court’s in forma pauperis form3 and execute the affidavit in

compliance with the certification requirements in 28 U.S.C. § 1746. See Neal v. Shelby Cnty.

Gov’t Cnty. Services Agency, No. 08-2160, 2008 WL 11498159, at *1 (W.D. Tenn. Aug. 1, 2008)

(citing Reynolds v. Fed. Bur. of Prisons, 30 F. App’x 574 (6th Cir. 2002)).

3 See https://www.tnwd.uscourts.gov/sites/tnwd/files/AO240_0.pdf (last accessed Nov. 6,

2023).

Here, Goyer’s May 1 Motion does not include a properly completed in forma pauperis

affidavit.

For the reasons explained above, the May 1 Motion (ECF No. 7) is DENIED to the extent

Goyer seeks leave to appeal in forma pauperis the Screening Order’s dismissal of the Claims

Dismissed With Prejudice.

III. THE MAY 5 MOTION (THE AMENDED COMPLAINT)

In the initial complaint (ECF No. 1), Goyer alleged that the USA breached a duty of care

by: (1) not checking his blood sugar levels during his confinement at the SPC-Millington4; and (2)

“den[ying] and/or delay[ing] medical treatment [to Goyer] by trainer healthcare professionals”

during the Incident (see ECF No. 6 at PageID 26) “largely due to the fact that SPC-Millington does

not have medical staff available 24 hours.” (ECF No. 1 at PageID 4-5.) In the Screening Order,

the Court (1) dismissed the following claims with prejudice: (a) Goyer’s claim under the FTCA

against Ashe; (b) Goyer’s claim under the FTCA against the USA arising from alleged medical

malpractice during the period December 27, 2016 through January 19, 2018; (c) Goyer’s Medical

Care Claim; and (d) Goyer’s Excessive Force Claim (collectively, the “Claims Dismissed With

Prejudice”); and (2) granted leave to amend the Claim Dismissed Without Prejudice. (ECF No. 6

at PageID 28-32 & 36-39.)

In the Amended Complaint, Goyer alleges that the USA “violate[d] its duty of care owed

to the Plaintiff” because SPC-Millington officers did not observe “Guidelines For Duty Officers

Reporting To High Levels, Responsibilities, Confidentiality, And Documentation.” (ECF No. 8

4 Goyer alleged that when he arrived at the Federal Correctional Institute-Memphis (the

“FCI-Memphis”) on December 27, 2016, “a health screen was completed, [but] I was not provided

routine lab work.” (ECF No. 1-1 at PageID 7.) Sometime during Goyer’s confinement, he was

transferred to Satellite Prison Camp, Millington (the “SPC-Millington”) in Millington, Tennessee,

where he remained for two years. (ECF No. 1 at PageID 4.)

at PageID 44-45 (citing to ECF No. 8 at PageID 55-59) (referred to as the “Procedures”).) The

Procedures cited by Goyer set types of situations at Federal Bureau of Prisons (“BOP”) facilities

for which a duty officer must report such incident to a regional duty officer. (See id. at PageID

55-59; see also https://www.bop.gov/policy/progstat/5502_011.pdf (last accessed Jan. 16, 2024).)

Goyer alleges that when the Incident occurred, “911 was supposed to be called immediately.

Instead, Mr. Goyer was forced to sit for an hour and plus minutes having multiple seizures as his

condition worses [sic].” (ECF No. 8 at PageID 48.) As pertinent to the claims in the Amended

Complaint, the Procedures do not (1) address whether a duty officer must immediately contact

outside medical personnel for particular types of prisoner medical situations or (2) set forth the

time within which BOP personnel must transport an inmate to an outside medical facility in health

emergencies. (See id. at PageID 55-59; see also https://www.bop.gov/policy/progstat/5502_011.pdf

(last accessed Jan. 16, 2024).)

Goyer further alleges that “staff avoided use of [a] video camera” during the Incident.

(ECF No. 8 at PageID 48.) The Procedures do not address whether BOP personnel are required to

videorecord particular types of medical incidents at BOP facilities. (See ECF No. 8 at PageID 55-

59; see also https://www.bop.gov/policy/progstat/5502_011.pdf (last accessed Jan. 16, 2024).

Like the initial complaint (ECF No. 1 at PageID 1), the Amended Complaint sues “Ashe

‘Camp Administra’ [sic] United States of America” as Defendant. (ECF No. 8 at PageID 44.) In

the Amended Complaint, Goyer seeks “relief on all claims.” (Id. at PageID 49.)

As explained below, the Amended Complaint alleges no new or different facts that alter

the Screening Order’s conclusion about the Goyer’s FTCA claim against the USA arising from (1)

the Incident and (2) alleged medical malpractice during the period January 20, 2018 through

January 19, 2021 (see ECF No. 6 at PageID 32).

A. The Amended Complaint Does Not Allege Facts Demonstrating The USA’s

Breach Of The Applicable Standard Of Care

First, Goyer’s allegations in the Amended Complaint do not demonstrate that the USA

failed to act in accordance with the applicable standard of care. For the purpose of screening

Goyer’s claims under the PLRA, the Court accepts as true the Amended Complaint’s allegation

that the Procedures set forth the USA’s duty of care. (See ECF No. 8 at PageID 44-45.) Goyer

does not allege facts showing that the USA breached that standard of care during the Incident.

The Procedures require a BOP institution’s duty officer to report various types of incidents

to the regional duty officer, including but not limited to reporting an “[e]mergency outside medical

trip.” (See ECF No. 8 at PageID 55.) Goyer acknowledges that Officer Danner and Officer

Mitchell submitted reports about the Incident. (Id. at PageID 45 & 51-52.) Goyer’s dispute of the

Officers’ reports is about the reports’ content, not the reports’ issuance itself. Specifically, Goyer

contends that Officer Mitchell later changed his first written report about the Incident in order to

match Officer Danner’s report saying Goyer was “combative” during the Incident. (Id. at PageID

45 & 52.) Goyer argues that Officer Mitchell changed his report to “cover up the wrongful acts”

of there being “almost an hour and a 10 mins gap between [the] Incident and Goyer receiving aid.”

(Id. at PageID 45 & 52.) Notwithstanding Goyer’s dissatisfaction with the contents of Officer

Mitchell’s incident report, Officer Mitchell submitted a report to the BOP about the Incident, as

the Procedures require. (Id. at PageID 52.) The Amended Complaint does not allege facts

demonstrating that the USA breached the Procedures, which Goyer points to as the applicable duty

of care governing officers’ conduct during the Incident. (ECF No. 8 at PageID 44-45.)

Even if the Amended Complaint is construed more liberally to allege a breach of the duty

of care to get outside medical attention for Goyer when the Incident occurred, the outcome is the

same. Goyer alleges that “the Incident occurred at 2:45 a.m.. Goyer was not admitted [to

Methodist Le Bonheur Healthcare] until 3:51 a.m.” (ECF No. 8 at PageID 45; see also ECF No. 1

at PageID 4.) However, there are no factual allegations in the Amended Complaint from which to

plausibly infer that the sixty-six minutes it took for SPC-Millington officers to (1) learn from an

inmate that Goyer was having a seizure (see ECF No. 1 at PageID 3-4), (2) respond to the scene

(id.), and (3) transport Goyer roughly twenty-five to thirty miles from the SPC-Millington to

Methodist Le Bonheur Healthcare5 constituted “negligent” conduct (see ECF No. 8 at PageID 45)

-- rather than average emergency medical response time. Goyer offers the conclusory contention

that “all events occurred” due to “the Defendant[s’] negligent act or omission” because “911

should have been called immediately.” (Id. at PageID 46 & 49.) Goyer, however, has not

demonstrated that the Procedures required the USA to contact 911 the instant SPC-Millington

officers learned from another inmate that Goyer was experiencing a medical issue. Goyer contends

that he suffered “injury that would not have occurred had the USA proceeded according to law

(Tennessee).” (Id. at PageID 49.) He does not cite any provision of Tennessee law that mandates

an immediate call by the BOP to 911 before (1) confirming a prisoner’s report of a fellow inmate’s

purported medical emergency, (2) evaluating the inmate-patient’s condition, (3) triaging the

situation by onsite personnel, and (4) ensuring facility security. The Court is not aware of any

such Tennessee state law.

The Amended Complaint fails to allege facts showing that the USA failed to act in

accordance with the applicable standard of care.

B. The Amended Complaint Does Not Allege Facts Demonstrating Causation

Second, Goyer fails to allege facts in the Amended Complaint that demonstrate (1) but-for

and (2) proximate cause. Instead, Goyer offers only the unsupported legal conclusion that “all

5 See https://tn211.myresourcedirectory.com/?option=com_cpx&task=resource&id=817789 (last

accessed Nov. 6, 2023); and https://www.methodisthealth.org/locations/ (last accessed Nov. 6, 2023).)

events occurred as a proximate result of the Defendant[s’] negligent act or omission.” (ECF No.

8 at PageID 49.)

As noted in the Screening Order, the record suggests several possible causes for the

Incident: “[Goyer] w[as] diagnosed and treated … [at] the local hospital on July 30, 2018 … for

disorder of kidney and ureter, altered mental status, other specified diabetes with ketoacidosis

without coma, abnormal levels of other serum enzymes, acidosis, elevated white blood cell count,

rhabdomyolysis, unspecified convulsion, and sepsis” (referred to as the “Symptoms”). (See ECF

No. 6 at PageID 35 (citing ECF No. 1-2 at PageID 12).) Goyer denies that illegal drug use caused

the Incident. (ECF No. 8 at PageID 48.) Even accepting his allegation as true, the Amended

Complaint alleges no facts showing that the USA’s alleged failure to follow the Procedures caused

the Symptoms and Goyer’s injuries from the Incident. That pleading defect is dispositive of the

screening of Goyer’s FTCA claim.

Even if, for the purpose of discussion, the Court accepts as true Goyer’s allegation that

SPC-Millington staff did not call 911 “immediately” on learning of Goyer’s seizure (see ECF No.

8 at PageID 46), the conclusion is the same regarding the defects in the Amended Complaint’s

causation allegations. Specifically, there are no factual allegations in the Amended Complaint

causally connecting the Symptoms with the approximate hour it took SPC-Millington staff to

transport Goyer to Methodist Le Bonheur Healthcare. In other words, Goyer does not demonstrate

that the supposed time-delay in transportation to outside medical care “more likely than not”

caused the Symptoms and was a “substantial factor” in bringing them about. For example, Goyer’s

“other specified diabetes with ketoacidosis” and “sepsis” suggest longstanding health conditions

that arose over a period of time, rather than injuries that occurred solely because of a roughly one

hour wait for outside medical care. (See ECF No. 1-2 at PageID 12.)

Goyer’s frustration with federal facility staffing shortfalls, which might be occasioned by

budgetary constraints, may be understandable. (See ECF No. 1 at PageID 4-5 (alleging

“suffer[ing]” and “punishment]” in Goyer’s holding cell while awaiting proper [outside] medical

attention” because “SPC-Millington does not have medical staff available 24 hours”).)

Nevertheless, staffing levels at federal correctional institutions do not, without more, demonstrate

negligent conduct. “[T]he mere occurrence of an injury does not prove negligence … Proof of

negligence without proof of causation is nothing.” Kilpatrick v. Bryant, 868 S.W.2d 594, 599

(Tenn. 1993). Goyer’s protests about medical staff availability and medical care wait times do not

demonstrate the causation element of his negligence claim under the FTCA.

Goyer has not alleged sufficient facts showing that his injuries suffered during the Incident

were caused by USA’s (1) supposed failure to follow the Procedure’s reporting requirements and

(2) supposed failure to call 911 immediately when learning of Goyer’s condition from another

inmate. Even accepting the Amended Complaint’s factual allegations as true for the purpose of

PLRA screening, Goyer has not shown that: (1) “it is more likely than not that the conduct of the

defendant was a cause in fact of the result”, see McClain v. United States, 996 F. Supp. 2d 683,

692 (M.D. Tenn. 2014) -- i.e., but-for causation; or (2) the USA’s conduct “must have been a

‘substantial factor’ in bringing about the harm being complained of”, see Kim v. State of Tennessee,

622 S.W.3d 753, 760 (Ct. App. Tenn. 2020) (citations omitted) -- i.e., proximate cause. For these

reasons, the Amended Complaint’s FTCA claim against the USA arising (1) from the Incident and

(2) from alleged malpractice during the period January 20, 2018 through January 19, 2021 (i.e.,

the Claim Dismissed Without Prejudice) is DISMISSED WITH PREJUDICE for failure to allege

facts stating a claim to relief.6

IV. AMENDMENT UNDER THE PRISON LITIGATION REFORM ACT, 28 U.S.C. §§

1915, ET SEQ.

The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint

to avoid a sua sponte dismissal under the Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et seq.

(the “PLRA”). Lucas v. Chalk, 785 F. App’x 288, 291 (6th Cir. 2019) (citing LaFountain v. Harry,

716 F.3d 944, 951 (6th Cir. 2013) (“[W]e hold, like every other circuit to have reached the issue,

that under Rule 15(a) a district court can allow a plaintiff to amend his complaint even when the

complaint is subject to dismissal under the PLRA”)); see also Brown v. R.I., 511 F. App’x 4, 5 (1st

Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some

form of notice and an opportunity to cure the deficiencies in the complaint must be afforded”).

Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v. United

States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every sua sponte

dismissal entered without prior notice to the plaintiff automatically must be reversed. If it is crystal

clear that ... amending the complaint would be futile, then a sua sponte dismissal may stand.”);

Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with the majority view that sua

sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with

due process and does not infringe the right of access to the courts”).

6 To the extent the Amended Complaint alleges (a) a claim under the FTCA against Ashe,

(b) a claim of deprivation of medical care against Ashe and the USA, and (c) a claim of excessive

force against Ashe and the USA, such claims were dismissed with prejudice in the Screening

Order. There are no allegations in the Amended Complaint persuading the Court to reach a

different conclusion. (See ECF No. 6 at PageID 28-29 & 36-38; ECF No. 8 at PageID 45 & 48.)

The Screening Order granted leave to amend. (See ECF No. 6 at PageID 39-40.) Further

opportunity to amend would be futile. The Court DENIES leave to amend the Amended

Complaint.

I. APPELLATE ISSUES

Under Federal Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a)(3), the Court

must also consider whether an appeal by Goyer would be taken in good faith. See Callihan v.

Schneider, 178 F.3d 800, 803–04 (6th Cir. 1999). Under Fed. R. App. P. 24(a), if the District

Court permits a party to proceed in forma pauperis, that party may also proceed on appeal in forma

pauperis without further authorization unless the District Court “certifies that the appeal is not

taken in good faith or finds that the party is not otherwise entitled to proceed in forma

pauperis.” Fed. R. App. P. 24(a)(3)(A). If the District Court denies pauper status, the party may

move to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)–(5).

The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445

(1962). The test for whether a party appeals in good faith is whether the litigant seeks appellate

review of any issue that is not frivolous. Id. “It would be inconsistent for a court to determine that

a complaint should be dismissed prior to service on Defendants but has sufficient merit to support

an appeal in forma pauperis.” DePriest v. Prestress Servs., Inc., No. 13-2768, 2014 WL 1269933,

at *1 (W.D. Tenn. Mar. 27, 2014) (citing Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d

Cir. 1983)). Given that Goyer’s Amended Complaint is dismissed for failure to state a claim to

relief, the Court finds that an appeal by Goyer would not be taken in good faith. The Court

CERTIFIES, under Federal Rule of Appellate Procedure 24(a), that any appeal here by Goyer

would not be taken in good faith. The Court DENIES leave to proceed on appeal in forma

pauperis. If Goyer appeals, he must pay the five hundred and five dollar ($505.00) appellate filing

fee or move for leave to appeal in forma pauperis with a supporting affidavit in the United States

Court of Appeals for the Sixth Circuit. See Fed. R. App. P. 24(a)(5)

II. NOTICE OF STRIKE RECOMMENDATION

The “three strikes” provision of 28 U.S.C. § 1915(g) prevents a court from granting in

forma pauperis status to a prisoner who “has, on 3 or more prior occasions, while incarcerated ...

brought an action or appeal in a court of the United States that was dismissed on the grounds that

it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. §

1915(g). For § 1915(g) analysis of Goyer’s future filings, if any, the Court RECOMMENDS that

the dismissal of this case be treated as a strike pursuant to § 1915(g). See Simons v. Washington,

996 F.3d 350 (6th Cir. 2021).

III. CONCLUSION

For the reasons set forth above:

A. The Amended Complaint (ECF No. 8) is DISMISSED WITH PREJUDICE in its

entirety for failure to state a claim to relief. See 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) and

1915A(b)(1)-(2). Leave to amend the Amended Complaint is DENIED.

B. This case is DISMISSED in its entirety. The Court RECOMMENDS that the

dismissal be treated as a strike pursuant to 28 U.S.C. § 1915(g). See Simons, 996 F.3d 350.

C. The Court CERTIFIES that an appeal would not be taken in good faith.

D. The Court DENIES leave to proceed in forma pauperis on appeal. If Goyer

appeals, he must pay the full five hundred and five dollar ($505.00) appellate filing fee or move

for leave to appeal in forma pauperis with a supporting affidavit in the Sixth Circuit. Fed. R. App.

P. 24(a)(5).

E. The Clerk is DIRECTED to mail a copy of the instant Order to Goyer (1) at the

FCI-Milan and (2) at the RRM-Nashville. (See ECF No. 8 at PageID 73 (Goyer’s May 5 Motion,

listing his address as the FCI-Milan); and https://www.bop.gov/inmateloc/ (the BOP inmate

locator website, showing Goyer’s address as the Residential Reentry Management Office in

Nashville, Tennessee) (last accessed Jan. 16, 2024).)

F. The Clerk is directed to mark this case CLOSED.

IT IS SO ORDERED, this 16th day of January, 2024.

/s/ John T. Fowlkes, Jr..

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE