Foster v. Robinson et al
MEMORANDUM OPINION. This action will be DISMISSED for failure to state a claim upon which relief may be granted under § 1983. Because Plaintiff is an inmate in the Bradley County Justice Center, he will be ASSESSED the civil filing fee of $350.00. The Clerk will be DIRECTED to send a copy of this Memorandum and Order to the Sheriff of Bradley County to ensure that the custodian of Plaintiff's inmate trust account complies with that portion of the Prison Litig ation Reform Act relating to payment of the filing fee. The Clerk will also be DIRECTED to forward a copy of this Memorandum and Order to the Court's financial deputy. Signed by Chief District Judge Thomas A Varlan on 1/18/17. (c/m to Plaintiff and Sheriff of Bradley County; copy forwarded to Court's financial deputy) (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
RAY A. FOSTER,
BILL ROBINSON, BRIAN FREEMAN,
CLAY MOORE, ASHLY OWNBY, and
The Court is in receipt of a pro se prisoner’s complaint under 42 U.S.C. § 1983 [Doc. 2]
and a motion for leave to proceed in forma pauperis [Doc. 1]. It appears from the motion for
leave to proceed in forma pauperis that Plaintiff lacks sufficient financial resources to pay the
filing fee. Accordingly, pursuant to 28 U.S.C. § 1915, Plaintiff’s motion for leave to proceed in
forma pauperis [Doc. 1] will be GRANTED. For the reasons set forth below, however, no
process shall issue and this action will be DISMISSED for failure to state a claim upon which
relief may be granted under § 1983.
Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner
complaints and shall, at any time, sua sponte dismiss any claims that are frivolous or malicious,
fail to state a claim for relief, or are against a defendant who is immune. See, e.g., 28 U.S.C. §§
1915(e)(2)(B), 1915A; Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999).
standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and in Bell
Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), “governs dismissals for failure state a claim
under [28 U.S.C. §§ 1915(e)(2)(B) and 1915A] because the relevant statutory language tracks the
language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Thus, to
survive an initial review under the PLRA, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). Courts liberally construe pro se pleadings filed in civil
rights cases and hold them to a less stringent standard than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was
deprived of a federal right by a person acting under color of state law. Black v. Barberton
Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); O’Brien v. City of Grand Rapids, 23 F.3d
990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); see
also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (stating that “Section 1983 does
not itself create any constitutional rights; it creates a right of action for the vindication of
constitutional guarantees found elsewhere”).
Allegations of the Complaint1
On July 31, 2014, Plaintiff was standing at the front of his garage smoking
methamphetamine with several other individuals when he saw a dark sport utility vehicle pull up
with a passenger who had “D.T.F.” (presumably Drug Task Force) across his chest [Doc. 2 p. 3].
Plaintiff started to run, but decided not to because his daughter was inside asleep [Id.].
Defendant Freeman then approached Plaintiff and told him that he had heard complaints about
Plaintiff’s complaint is a handwritten narrative that contains a number of statements and
stories that do not relate to the substance of the complaint. In addition, the statements do not
appear to progress in any order. For purposes of judicial efficiency, the Court only summarizes
the relevant portions of Plaintiff’s complaint. The Court finds that all other allegations of the
complaint not addressed in this order fail to state a claim upon which relief may be granted under
§ 1983, to the extent Plaintiff intended them to do so.
Plaintiff selling drugs in the neighborhood. [Id. at 3, 15]. At that point, Defendants Robinson,
Freeman, Cherry, and Moore led Plaintiff to believe that because Plaintiff was on parole, he had
to sign a document that was a warrant allowing them to search his property [Id. at 3–4, 15–16].
During this search, Defendants disrupted Plaintiff’s property and carried on various
conversations with Plaintiff about his property and drugs, specifically who was bringing in
drugs, who was selling drugs to whom, and whether Plaintiff could help bring others “down” [Id.
at 19–20]. Plaintiff was sure that he was going to jail for the drugs in his pipe, but Defendants
told him that they found drugs in a camper on Plaintiff’s property, took some of Plaintiff’s
money and property, and then left [Id. at 19–23]. Plaintiff was arrested for charges stemming
from the July 31, 2015, search on September 9, 2015 [Id. at 26].
In or about March 2016, Amanda, a woman Plaintiff was formerly involved with who
lived with him and who was present during the July 31, 2014, search of his property, told
Plaintiff that during the search of the house and property, she saw Defendant Moore reach into
an outside compartment of his camper, where police alleged they had found drugs, and say “this
is only one, where[’]s the other one,” at which point Defendant Cherry said “shhh” and motioned
toward Amanda [Id. at 37–38].
Plaintiff also makes various allegations about alleged negligence/legal malpractice on the
part of Defendant Ownby, his attorney in the underlying criminal case against him [Id. at 7–11].
Statute of Limitations
Congress did not provide a statute of limitations for claims arising under 42 U.S.C. §
1983. Accordingly, district courts apply state statutes of limitations to those claims. Harris v.
United States, 422 F.3d 322, 331 (6th Cir. 2005). In Tennessee, a one-year statute of limitations
is applicable to § 1983 actions. Tenn. Code Ann. § 28-3-104(a)(3); Zundel v. Holder, 687 F.3d
271, 281 (6th Cir. 2012).
Federal law, however, determines “[t]he date on which the statute of limitations begins to
run in a § 1983 action.” Eidson v. State of Tenn. Dept. of Children’s Servs., 510 F.3d 631, 634–
35 (6th Cir. 2007) (citing Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir.
1997)). The Sixth Circuit has held that a cause of action accrues and the statute of limitations
begins to run when an event occurs that “should have alerted the typical lay person to protect his
or her rights.” Id. at 635 (quoting Kuhnle Bros., 103 F.3d at 520).
It is apparent that Plaintiff knew, or should have known, of all of the claims in his
complaint arising out of the allegedly improper search of his home and property on July 31,
2014, more than a year before he signed his complaint on July 2, 2016,2 and all such claims are
therefore time-barred. Specifically, Plaintiff knew or should have known of the claims asserting
the alleged illegality of the search and the claims arising from his interactions with officers
during the search when the search and those interactions occurred on July 31, 2014.
As to his claim that officers planted drugs on his property, Plaintiff states that he did not
discover that Amanda witnessed this behavior until March 2016. Plaintiff’s complaint, however,
states that: (1) Defendant Freeman told Plaintiff before the search that he had heard that Plaintiff
was selling drugs in the neighborhood; (2) Plaintiff had a conversation with Defendant Freeman
during the search in which Defendant Freeman asked Plaintiff questions about the sale of drugs;
and (3) officers told Plaintiff that they had found drugs in the camper that was on his property
Under the prisoner “mailbox rule,” a prisoner complaint is deemed filed on the day the
plaintiff signed the complaint. Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (noting that
the signing date on a pro se prisoner’s pleading will be deemed to be the filing date, unless there
is evidence to the contrary).
during the search on July 31, 2014.
Given the context of Plaintiff’s conversations with
Defendants before and during the search, when officers told Plaintiff that they had found drugs in
the camper on his property during the search, a typical lay person would have been on notice of
the need to investigate the origin of the drugs in order to protect his rights. Thus, the one-year
statute of limitations began to run on July 31, 2014, the date that officers told Plaintiff that they
found drugs in a camper on his property. Plaintiff’s claim arising out of the alleged planting of
drugs, which was filed July 2, 2016, is therefore untimely.
Accordingly, all of Plaintiff’s claims relating to the search of his property on July 31,
2014, are time-barred and they will therefore be DISMISSED.
Plaintiff’s claims that his attorney was negligent and/or committed legal malpractice
while representing Plaintiff do not state a claim upon which relief may be granted under § 1983,
as nothing in the complaint suggests that Plaintiff’s attorney was a state actor. Wolotsky v. Huhn,
960 F.2d 1331, 1335 (6th Cir. 1992). To the extent Plaintiff sought to have the Court exercise
supplemental jurisdiction over these claims, the Court declines to do so. Booker v. City of
Beachwood, 451 F. App’x 521, 523 (6th Cir. 2011).
These claims will therefore be
DISMISSED without prejudice.
For the reasons set forth above, even liberally construing the complaint in favor of
Plaintiff, it fails to state a claim upon which relief may be granted under § 1983 and this action
will therefore be DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A).
Because Plaintiff is an inmate in the Bradley County Justice Center, he will be
ASSESSED the civil filing fee of $350.00. 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 will be
DIRECTED to submit to the Clerk, U.S. District Court, 900 Georgia Avenue, Room 309,
Chattanooga, Tennessee 37402, as an initial partial payment, whichever is greater of:
(a) twenty percent (20%) of the average monthly deposits to Plaintiff’s inmate trust
(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
Thereafter, the custodian shall submit twenty percent (20%) of Plaintiff’s preceding
monthly income (or income credited to Plaintiff’s trust account for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($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 will be DIRECTED to send a copy of this Memorandum and Order to the
Sheriff of Bradley County to ensure that the custodian of Plaintiff’s inmate trust account
complies with that portion of the Prison Litigation Reform Act relating to payment of the filing
fee. The Clerk will also be DIRECTED to forward a copy of this Memorandum and Order to
the Court’s financial deputy.
The Court CERTIFIES that any appeal from this action would not be taken in good faith
and would be totally frivolous. See Fed. R. App. P. 24.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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