Dunn v. Denny

Filing 4

MEMORANDUM. A judgment order will enter dismissing plaintiff's complaint in its entirety signed by District Judge Curtis L Collier on 11/9/11. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
ROY E. DUNN

)
)
Plaintiff,
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v.
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)
ASSISTANT DISTRICT ATTORNEY DAVE )
DENNY, Sue in his Official and Individual
)
Capacities;
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)
Defendant.

1:10-cv-223
Chief Judge Curtis L. Collier

MEMORANDUM
Plaintiff Roy E. Dunn (“Dunn” or “Plaintiff”) has filed a pro se prisoner civil rights
complaint pursuant to 42 U.S.C. § 1983 against Hamilton County, Tennessee, Assistant District
Attorney General Dave Denny (“Defendant”) (Court File No. 1). Plaintiff claims Defendant has
violated his right to a fair trial by an impartial jury of Hamilton County and his right to a fair
sentence with the District Attorney’s office because, although a matter of public record, Defendant
posted the details of Plaintiff’s prior criminal history and crime on Chattanooga.com,, and a radio
and television station (Court File No. 1). Plaintiff requests two million dollars in compensatory
damages and two and a half million dollars in punitive damages (Court File No. 1, at 5).
Also before this Court is an application to proceed in forma pauperis (Court File No. 3). For
the reasons discussed below, Plaintiff’s motion to proceed in forma pauperis will be GRANTED
IN PART AND DENIED IN PART (Court File No. 3), and his complaint will be DISMISSED
(Court File No. 1).

I.

Application to Proceed In Forma Pauperis

It appears from the application to proceed in forma pauperis submitted by Plaintiff that he
lacks sufficient financial resources at the present time to pay the required filing fee of $350.00.
Plaintiff is not relieved of the ultimate responsibility of paying the $350.00 filing fee. Since Plaintiff
is an inmate or prisoner in custody at the Hamilton County Jail, his in forma pauperis application
will be DENIED to the extent he will not be excused from paying the filing fee but GRANTED to
the extent that he does not have to pay the total fee at this time, but rather, he will be ASSESSED
and SHALL pay the civil filing fee of three-hundred and fifty dollars ($350.00) under the Prisoner
Litigation Reform Act (“PLRA”), Pub. L. 104-134, 110 Stat. 1321, codified in 28 U.S.C. § 1915.
Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiff’s inmate trust
account at the institution where he now resides shall submit to the Clerk, United States District
Court, 900 Georgia Avenue, Room 309, Chattanooga, Tennessee 37402, as an initial partial
payment, whichever is the greater of
(a)

twenty percent (20%) of the average monthly deposits
to Plaintiff’s inmate trust account; or

(b)

twenty percent (20%) of the average monthly balance
in Plaintiff’s inmate trust account for the six-month
period preceding the filing of the complaint.

Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff’s preceding monthly
income (or income credited to his trust account for the preceding month), but only when such
monthly income exceeds $10.00, until the full filing fee of $350.00 as authorized under 28 U.S.C.
§ 1914(a) has been paid to the Clerk. 28 U.S.C. § 1915(b)(2).
The Clerk of Court will be DIRECTED to send a copy of this memorandum and order to
the Sheriff of Hamilton County Jail, the custodian of inmate accounts at the Hamilton County Jail,
the Commissioner of the Tennessee Department of Correction, and the Attorney General for the

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State of Tennessee to ensure the custodian of Plaintiff’s inmate trust account complies with the
portion of the PLRA relating to payment of the filing fee.
The agency having custody of the plaintiff shall collect the filing fee as funds become
available. This order shall become a part of inmate Plaintiff’s file and follow the inmate if he is
transferred to another institution. The agency having custody of Plaintiff shall continue to collect
monthly payments from Plaintiff’s prisoner account until the entire filing fee of $350.00 is paid.1

The plaintiff will also be ORDERED to notify this Court of any change of address if he is
transferred to another institution, and to provide the prison officials at any new institution with a
copy of this order. Failure of Plaintiff to notify this Court of an address change and/or the new
prison officials of this order and outstanding debt, will result in the imposition of appropriate
sanctions against Plaintiff without any additional notice or hearing by the Court.
II.

Standard of Review
A.

Pro Se Pleadings

All well-pleaded factual allegations contained in the complaint must be sufficient “to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Mere “labels and conclusions” will not do. Id. at 555. Nevertheless, a pro se pleading must

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Send remittances to the following address:
Clerk, U.S. District Court
900 Georgia Ave., Room 309
Chattanooga, TN 37402

All checks or other forms of payment shall be payable to "Clerk, U.S. District Court."
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be liberally construed and “held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
Pro se status, however, does not exempt a plaintiff from the requirement that he comply
with relevant rules of procedural and substantive law. Hulsey v. State of Texas, 929 F.2d 168, 171
(5th Cir. 1991); Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). Pro se plaintiffs must comply
with Rule 8 of the Federal Rules of Civil Procedure which provides a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief. . . .” LRL
Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995). Although the
standard of review is liberal, it does require more than the bare assertion of legal conclusions.
Lillard v. Shelby County Bd. Of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (standard of review for
dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6)-failure to state a claim upon which relief
may be granted); LRL Properties, 55 F.3d at 1103-04; Allard v. Weitzman (In re DeLorean Motor
Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); Hartfield v. East Grand Rapids Public Schools, 960 F.
Supp. 1259, 1268 (W.D. Mich. 1997).
B.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A

The Court screens the complaint pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. Title 28
U.S.C. §§ 1915(e)(2) and 1915A require the Court to sua sponte dismiss complaints filed by
prisoners proceeding in forma pauperis upon a determination they are frivolous or fail to state a
claim upon which relief can be granted, or seek monetary relief from a defendant who is immune
from such relief. See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997).
Under these statutes, a claim is frivolous only when it lacks an arguable basis either in law
or in fact. Neitzke v. Williams, 490 U.S. 319 (1989). A claim is frivolous and lacks an arguable
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basis in law, on its face, when the complaint bears an affirmative defense such as the statute of
limitations. Dellis v. Corrections Corporation of America, 257 F.3d 508, 511 (6th Cir. 2001);Day
v. E.I. Du Pont De Nemours and Co., 165 F.3d 27 (6th Cir. Sept. 17, 1998), available in 1998 WL
669939 at *1 (the sua sponte dismissal of in forma pauperis complaint appropriate under 28 U.S.C.
§ 1915(e)(2) where complaint bears an affirmative defense such as the statute of limitations and is
therefore frivolous on its face)(citing Pino v. Ryan, 49 F.3d 51, 53-54 (2nd Cir. 1995)). A claim
lacks an arguable basis in fact when the factual contentions are clearly baseless or when the claim
pertains to the infringement of a legal interest that clearly does not exist. Neitzke v. Williams, 490
U.S. at 327-28.
III.

Facts
The Court liberally construes the facts stated in the complaint in the light most favorable to

Plaintiff. Assistant District Attorney Dave Denny posted Plaintiff’s criminal background and
information about pending charges on Chattanoogan.com, radio station 95.3, and Channel 3 News.
As a result of this posting, Plaintiff alleges his right to a fair trial by an impartial jury and to a fair
sentence by the Hamilton County District Attorney’s office, has been violated. It is unclear,
however, whether Plaintiff’s criminal case is pending or has been adjudicated.
IV.

Analysis
Plaintiff brings suit against Hamilton County, Assistant District Attorney General

Denny in his official and individual capacities. The Court will address the claims against Defendant
in his official capacity first.
A.

Claim Against Assistant District Attorney in his Official Capacity

Defendant Assistant District Attorney Denny is a state employee. Tenn. Code Ann. § 8-42101(3)(A). Suing a state officer in his official capacity for damages is equivalent to suing the state
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itself which is prohibited by the Eleventh Amendment. Wells v. Brown, 891 F.2d 591, 592 (6th Cir.
1989) (citing Will v. Michigan Department of State Police, 491 U.S. 58 (1989) (state officials sued
in official capacity for damages are absolutely immune from liability under the Eleventh
Amendment)). The Eleventh Amendment bars such suit unless the State has waived its immunity,
Welch v. Texas Dept. Of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987)
(plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the
Fourteenth Amendment to override that immunity. Will v. Michigan Dept. Of State Police, 491 U.S.
at 65. Plaintiff has not shown, nor does this Court find, that the State has waived its immunity or
that Congress has exercised its power to override that immunity in this situation. Moreover, the
United State Supreme Court has ruled “that neither a state nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Id. at 71. Thus federal courts do not have subject matter
jurisdiction over causes of actions against officers of a state being sued in their official capacity for
damages. See Cummings v. Wilkerson, 134 F.3d 370, (Table, text at 1998 WL 30803, at *1 (6th Cir.
Jan. 23, 1998), citing Wells, 891 F.2d at 593). Accordingly, the claims against Assistant District
Attorney Denny in his official capacity will be DISMISSED.
B.

Claim Against Assistant District Attorney in his Individual Capacity

Plaintiff alleges Defendant publicized his prior criminal history and pending criminal
charges. Absolute prosecutorial immunity protects government officials from individual liability
for actions undertaken “in the exercise of their duties[,]” Burns v. Reed, 500 U.S. 478, 386-87
(1991), and extends to those activities falling within a prosecutor’s role as advocate for the state.
Blakely v. United States, 276 F.3d 853, 871 (6th Cir. 2002). Therefore, prosecutors are afforded
immunity for their conduct in “initiating a prosecution and in presenting the State’s case,” inasmuch
as that conduct is “intimately associated with the judicial phase of the criminal process.” Imbler v.
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Pachtman, 424 U.S. 409, 430-31 (1976).
Plaintiff’s allegations that Defendant Denny made various statements to the news media
about Plaintiff’s prior criminal history and pending charges challenge activities that were not
inherently prosecutorial in nature. Acts not inherently prosecutorial in nature are not protected by
absolute immunity but rather, are protected by qualified, good-faith immunity. See Buckley v.
Fitzsimmons, 509 U.S. 259, 277-78 (1993). For the reasons explained below, not only has Plaintiff
failed to sufficiently allege a claim, even assuming a claim is alleged, Defendant is entitled to
qualified immunity.
First, these allegations fail to state a § 1983 claim because Plaintiff has not identified any
false statements and has failed to provide any factual support to his claim that the statements have
deprived him of a fair trial and sentencing. Plaintiff acknowledges all this information was a matter
of public record and makes no claim any of the statements were false. Not only has Plaintiff failed
to identify the specific information he alleges Defendant communicated to the media, he has failed
to demonstrate the information Defendant allegedly provided to the media is sufficiently
inflammatory and prejudicial so as to deny him of his right to a fair and impartial jury at trial or,
assuming he has already been tried, denied him of an impartial jury or fair sentence. Consequently,
Plaintiff’s bald allegations that Defendant provided the media with information that is a matter of
public record, without identifying the specific information he alleges was provided to the media,
fails to state a constitutional violation.
Furthermore, Plaintiff has failed to provide any evidence demonstrating Defendant did, in
fact, provide the information to the media. Thus, these factually unsupported conclusions are
insufficient to raise a constitutional violation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
554 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level
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(citation omitted). Indeed, under 42 U.S.C. § 1983, a plaintiff must allege he was deprived of a right
secured by the United States Constitution or laws of the United States, and the deprivation was
caused by a person while acting under color of state law. See Flagg Bros. v. Brooks, 436 U.S. 149,
155-57 (1978). Plaintiff’s complaint against Defendant fails to satisfy the first requirement under
42 U.S.C. § 1983. Plaintiff’s factually unsupported claim that Defendant’s communication with the
media violated his right to a trial by an impartial jury and right to a fair sentence is insufficient to
state a constitutional violation.2 Therefore, Plaintiff’s claim will be DISMISSED for failure to state
a claim upon which relief may be granted.
Assuming, for the sake of discussion, Defendant did provide the information regarding

2

Although it is unclear whether Plaintiff’s state criminal case is pending, the Court
makes a couple of observations. Even assuming Plaintiff’s state case is pending, he has stated a
sufficient claim, and Defendant is not entitled to immunity, Plaintiff’s complaint is still subject to
dismissal as it is well settled that a federal court must abstain from deciding issues implicated in an
ongoing criminal proceeding in state court except in extraordinary circumstances. Younger v.
Harris, 401 U.S. 37, 43-45 (1971). Under the abstention doctrine established by Younger, the target
of an ongoing state prosecution is required to raise any and all constitutional claims as defenses to
that action in the state courts and may not file a collateral federal action raising the same claims.
See Gottfried v. Medical Planning Service, Inc., 142 F.3d 326, 329 (6th Cir.), cert. denied, 525 U.S.
1041 (1998). If the relief sought would disrupt the state criminal proceeding, it is generally
prohibited by the Younger doctrine. A United States court only has the power to enjoin state officers
from instituting criminal actions when absolutely necessary under extraordinary circumstances,
where the danger of irreparable loss is both great and immediate. Younger, 401 U.S. at 43-46,
Douglas v. City of Jeannette, 319 U.S. 157 (1943). No extraordinary circumstances have been
alleged here.
In addition, even if Plaintiff has been convicted, he would not be entitled to relief because
he has not demonstrated a favorable termination of his state criminal case. Heck v. Humphrey, 512
U.S. 477 (1994) mandates dismissal of Plaintiff's complaint because no claim for damages can be
made in federal court if a federal court judgment in favor of the plaintiff would imply the invalidity
of the plaintiff’s conviction, continued imprisonment, or sentence in state court. Id., at 486-87.
Indeed, to bring a case of this nature in federal court, Plaintiff must first have his state court
conviction and sentence reversed, expunged, or called into question by issuance of a federal writ of
habeas corpus. Id. Absent a such a favorable termination, Heck requires the Court to dismiss the
complaint.
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Plaintiff’s criminal history and the crime to the media, such acts are protected by qualified, goodfaith immunity. Buckley v. Fitzsimmons, 509 U.S. at 268. “Under this form of immunity,
government officials are not subject to damages liability for the performance of their discretionary
functions when ‘their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In this claim, not only has Plaintiff failed to demonstrate Defendant did in fact make
any statement to the media, Plaintiff has also failed to identify any false statement made by
Defendant and provide any factual support to his bald claim Defendant Denny violated his
constitutional right to a fair and impartial jury by the statements Defendant allegedly made to the
media.
Nevertheless, even if Defendant’s statement regarding the crime did somehow violate
Plaintiff’s rights, Defendant would be entitled to qualified immunity from liability of those
statements as it is not at all established (much less was it clearly established at the time of the
relevant events) that an Assistant DA’s public statements of the type alleged here by Plaintiff might
violate the constitutional rights of someone in Plaintiff’s position. Plaintiff has not cited, and the
Court’s research did not reveal a case clearly establishing a prosecutor’s statement to the press about
a defendant’s prior criminal history or the facts of a pending criminal case violates a defendant’s
constitutional rights. See Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (“For qualified
immunity to be surrendered, pre-existing law must dictate, that is truly compel (not just suggest or
allow to raise a question about), the conclusion for every like-situated, reasonable government agent
that what defendant is doing violates federal law in the circumstances.”) (punctuation and citations
omitted)). “The burden of convincing a court that law was clearly established rests squarely with
the plaintiff.” Id. (punctuation and citation omitted).
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Accordingly, for the reasons explained above, Plaintiff has failed to state a claim against
Defendant in his individual capacity and alternatively, Defendant is entitled to immunity from
Plaintiff’s claims against him in his individual capacity. In addition, the Younger abstention doctrine
and the Heck favorable termination doctrine requires the Court to dismiss the complaint.
V.

Conclusion
Accordingly, the Court finds Plaintiff has failed to set forth any claim that would entitle him

to relief under 42 U.S.C. § 1983 as he has failed to provide any factual support to his claim. In
addition, assuming Plaintiff stated a claim, Defendant is absolutely immune from liability in his
official capacity under the Eleventh Amendment and qualified immunity protects him from liability
in his individual capacity. Furthermore, assuming Defendant is not entitled to immunity, the
Younger abstention doctrine and the Heck favorable termination doctrine requires the Court to
dismiss the complaint. Plaintiff’s complaint will be DISMISSED sua sponte for failure to state a
claim on which relief may be granted under 42 U.S.C. § 1983. 28 U.S.C. §§ 1915A and 1915(e) .
A judgment order will enter DISMISSING Plaintiff’s complaint in its entirety.

/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

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