Augustin et al v. Bradley County, Tennessee et al

Filing 6

MEMORANDUM AND OPINION: The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Warden and Custodian of Inmate Accounts at USP Atlanta in Atlanta, Georgia, and to the Commissioner of the Bureau of Prisons to ensure that the custodian of Plaintiffs inmate trust accounts complies with that portion of the Prison Litigation Reform Act relating to payment of the filing fees. The Clerk is further DIRECTED to forward a copy of this Memorandum and Order to the Courts f inancial deputy. The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. AN APPROPRIATE ORDER WILL ENTER.Signed by District Judge Travis R McDonough on 2/1/2017. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ABRAHAM A. AUGUSTIN and
LORRANCE B. DAIS,
Plaintiffs,
v.
BRADLEY COUNTY, TENNESSEE,
BRADLEY COUNTY SHERIFF’S
DEPARTMENT1, and JIMMY SMITH,

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Case No. 1:17-cv-19
Judge Travis R. McDonough
Magistrate Judge Christopher H. Steger

Defendants.

MEMORANDUM OPINION

The Court is in receipt of a pro se prisoner civil rights complaint filed pursuant to 42
U.S.C. § 1983 (Doc. 4), two motions for leave to proceed in forma pauperis (Docs. 1, 2), and
two motions to appoint counsel (Docs. 3, 5). It appears from the motions for leave to proceed in
forma pauperis that Plaintiffs lack sufficient financial resources to pay the $350.00 filing fee.
Accordingly, pursuant to 28 U.S.C. § 1915, Plaintiffs’ motions for leave to proceed in forma
pauperis (Docs. 1, 2) 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. §§

1

 As it appears that the name of the Bradley County Sheriff’s Department is misspelled on the
Court’s docket sheet, the Clerk will be DIRECTED to correct the spelling.  

1915(e)(2)(B) and 1915(A); Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal
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”).
In their complaint, Plaintiffs allege that Defendants violated their constitutional rights by
determining that Plaintiffs had forfeited property and money that was seized in a criminal
investigation without properly notifying Plaintiffs of the seizure and/or forfeiture
as required by Tenn. Code Ann. §§ 40-33-203 and 204.2

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Plaintiffs’ complaint is twenty-eight pages long and sets forth a number of facts that are either
irrelevant, or are only tangentially relevant, to the substantive claims set forth therein. It is
apparent from the substance of Plaintiffs’ complaint, however, that the only claims they wish to
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First, Plaintiff Dais has already brought a civil action arising out of the same underlying
claim against Defendants Jimmy Smith and the Bradley County Sheriff’s Office. Dais v. Smith
et al., 1:11-CV-165 (E.D. Tenn. Dec. 5, 2011). That action was dismissed as frivolous and for
failure to state a claim. Id. Thus, many, if not all, of Plaintiff’s claims are barred by claim
and/or issue preclusion.3
Moreover, as to Plaintiff Augustin’s claims and to the extent that Plaintiff Dais’ claims
are not barred by claim and/or issue preclusion, it is apparent from the complaint that all claims
set forth in the complaint are time-barred. 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. Zundel v. Holder,
687 F.3d 271, 281 (6th Cir. 2012); Tenn. Code Ann. § 28-3-104(a)(3).
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.

pursue are their claims that Defendants failed to properly provide them with notice of the seizure
and/or forfeiture of their property as required by Tenn. Code Ann. §§ 40-33-203 and 204. 
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Claim preclusion, or res judicata, prevents a party from relitigating previously adjudicated
claims or claims that should have been advanced in an earlier suit between the same parties.
Mitchell v. Chapmen, 343 F.3d 811, 819 (6th Cir. 2003). The doctrine of collateral estoppel, or
issue preclusion, applies only if “(1) the precise issue raised in the present case [was] raised and
actually litigated in the prior proceeding; (2) determination of the issue [was] necessary to the
outcome of the prior proceeding; (3) the prior proceeding . . . resulted in a final judgment on the
merits; and (4) the party against whom [issue preclusion] is sought ... had a full and fair
opportunity to litigate the issue in the prior proceeding.” Smith v. Securities & Exch. Comm’n,
129 F.3d 356, 362 (6th Cir.1997) (en banc) (citing Detroit Police Officers Ass’n v. Young, 824
F.2d 512, 515 (6th Cir.1987)).

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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., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th
Cir. 1997)).
It is apparent from the complaint that Plaintiffs had notice of the claims set forth therein
much longer than a year before they signed their complaint on January 10, 2017.4 Specifically,
Plaintiff Augustin states in the complaint that he first pursued a case based on the claims set forth
in his complaint in 2012 [Doc. 4 p. 6].5 Moreover, as set forth above, on June 17, 2011, Plaintiff
Dais filed a complaint in a civil action arising out of the same underlying claim regarding seizure
of property and forfeiture document that was dismissed as frivolous and for failure to state a
claim. Dais v. Smith et al., 1:11-CV-165 (E.D. Tenn. Dec. 5, 2011).
Accordingly, for the reasons set forth above, even liberally construing the complaint in
favor of Plaintiffs, Haines v. Kerner, 404 U.S. 519, 520 (1972), it fails to state a claim upon
which relief may be granted under § 1983 as all claims therein are time-barred. This action will
therefore be DISMISSED for failure to state a claim upon which relief may be granted under §
1983 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A).
Because Plaintiffs are incarcerated in the United States Prison in Atlanta (“USP
Atlanta”), each will be ASSESSED one-half of the civil filing fee of $350.00. Pursuant to 28
U.S.C. § 1915(b)(1)(A) and (B), the custodian of Plaintiffs’ inmate trust accounts at the

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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).

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While Plaintiff Augustin states that he seeks to have the case he states he “reopened” in Bradley
County in 2016 transferred to this Court [Doc. 4 p. 6], he has not followed the procedural
requirements for removal of civil actions. 28 U.S.C. § 1446. This request is therefore DENIED.
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institution where they now reside 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 each Plaintiff’s inmate trust
account; or
(b) twenty percent (20%) of the average monthly balance in each
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 each Plaintiffs preceding
monthly income (or income credited to Plaintiffs’ trust accounts for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until each Plaintiff has paid to the
Clerk one half of the full filing fee of three hundred fifty dollars ($350.00) as authorized under
28 U.S.C. § 1914(a). 28 U.S.C. § 1915(b)(2). Accordingly, each Plaintiff will pay a total of one
hundred and seventy-five dollars ($175.00).
The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Warden
and Custodian of Inmate Accounts at USP Atlanta in Atlanta, Georgia, and to the Commissioner
of the Bureau of Prisons to ensure that the custodian of Plaintiffs’ inmate trust accounts complies
with that portion of the Prison Litigation Reform Act relating to payment of the filing fees. The
Clerk is further 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 Rule 24 of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
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