Albritton v. Hawkins County Jail
MEMORANDUM AND ORDER: The Clerk is also DIRECTED tofurnish a copy of this Order to the Courts financial deputy. This Order shall be placed in Plaintiffs institutional file and follow him if he is transferred to another correctional facility. The Court has carefully reviewed this case pursuant to 28 U.S.C. § 1915(a) and hereby CERTIFIES that any appeal from this action would not be taken in good faith. Hence, should Plaintiff file a notice of appeal, he should also submit a n application for leave to proceed informa pauperis on appeal and a certified copy of his inmate trust fund account reflecting the transactions in that account for the six months preceding the filing of the notice. 28 U.S.C. § 1915(a)(2). AN APPROPRIATE JUDGMENT ORDER WILL ENTER. Signed by District Judge Harry S Mattice, Jr on 3/24/2017. (DJH, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TOMMY KIRK ALBRITTON,
HAWKINS COUNTY JAIL,
MEMORANDUM and ORDER
Acting pro se, Tommy Kirk Albritton (“Plaintiff”) brings this civil rights complaint under
42 U.S.C. § 1983, alleging that he has not been awarded the proper sentencing credits for his
conviction in General Sessions Court [Doc. 2]. Plaintiff’s application to proceed in forma
pauperis is GRANTED [Doc. 1], and Plaintiff need not pay an up-front filing fee. Nevertheless,
the Prison Litigation Reform Act of 1995 (PLRA), makes a prisoner, such as Plaintiff,
responsible for paying the filing fee, 28 U.S.C. § 1915(b)(1), and he therefore is ASSESSED the
full filing fee of three hundred, fifty dollars ($350).
The custodian of Plaintiff’s inmate trust account at the institution wherein he resides shall
submit, 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 his inmate trust account for the six-month period preceding the filing
of the complaint. 28 U.S.C. § 1915(b)(1)(A) and (B). Thereafter, the trust account 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 has been paid to the Clerk’s Office. 28 U.S.C. §
1915(b)(2); McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007).
Payments should be sent to: The Clerk, United States District Court, 220 West Depot
Street, Ste. 200, Greeneville, TN 37743.
To ensure compliance with the fee-collection
procedure, the Clerk is DIRECTED to mail a copy of this Memorandum and Order to the
custodian of inmate accounts at the Hawkins County jail. The Clerk is also DIRECTED to
furnish a copy of this Order to the Court’s financial deputy. This Order shall be placed in
Plaintiff’s institutional file and follow him if he is transferred to another correctional facility.
SCREENING and LEGAL STANDARDS
The Court must now screen the complaint to determine whether it states a claim entitling
Plaintiff to relief or is frivolous or malicious or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2) and § 1915A; see also McGore, 114 F.3d at
607 In performing this task, however, the Court recognizes that pro se pleadings filed in civil
rights cases are construed indulgently and held to a less stringent standard than formal pleadings
drafted by lawyers. McNeil v. United States, 508 U.S. 106, 113 (1993); Haines v. Kerner, 404
U.S. 519, 520 (1972). Even so, 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), which simply
means the factual content pled by a plaintiff must permit a court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). The standard articulated in Twombly and
Iqbal “governs dismissals for failure state a claim under [§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)]
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).
In order to state a claim under 42 U.S.C. § 1983, Plaintiff must establish that he was
deprived of a federal right by a person acting under color of state law. See Black v. Barberton
Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); see also Braley v. City of Pontiac, 906 F.2d
220, 223 (6th Cir. 1990) (“Section 1983 does not itself create any constitutional rights; it creates
a right of action for the vindication of constitutional guarantees found elsewhere.”).
The Court examines the claims under these guidelines.
LAW and ANALYSIS
Petitioner asserts that he entered the Hawkins County jail on May 18, 2015, to begin
serving a sentence of 768 days, set to be served at 75%, and that his mittimus stated that he was
to be given credit for time served. Judge Ross Todd, who presumably is the judge in the
Hawkins County General Sessions Court, explained to Plaintiff on June 17, 2015, that he was to
be given credit on his General Sessions conviction for time he had served, even though he had
been serving a state sentence at that time. Plaintiff contends that, with the 227 days’ credit
towards his sentence which Judge Ross agreed that he should be awarded, he was due for release
on May 9, 2016. Yet he was not released on that date and he remains in jail. Plaintiff has filed
two requests to the timekeeper, but he still has not been released.
Plaintiff asks the Court to obtain and examine the recording from his June 17, 2015 court
proceedings. Plaintiff would then like to file a lawsuit for the time he has been kept in jail past
his true sentence expiration date. Plaintiff also requests the Court to arrange for either a personal
visit or a phone call from a lawyer to discuss his predicament.
It is well settled law that the sole federal remedy for claims relating directly to the fact
and duration of an individual’s physical confinement lies in filing a petition for habeas corpus
relief under 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). Plaintiff’s
request that the Court explore the merits of his claimed sentencing glitch relates directly to the
duration of his confinement because a favorable finding would shorten the duration of his
confinement. Because this kind of claim cannot be entertained in a civil action, see Heck v.
Humphrey, 512 U.S. 477, 486 (1994) (referring to “the hoary principle that civil tort actions are
not appropriate vehicles for challenging the validity of outstanding criminal judgments”), and
because such claims must be brought in a habeas corpus application, all such claims fail to state a
claim entitling Plaintiff to relief in this civil suit.
The Court would add that a habeas corpus action will lie where a prisoner claims that he
has been denied sentencing credits he has earned under a state’s sentencing reduction programs
and requests receipt of those credits. Greene v. Tenn. Dep’t of Corr., 265 F.3d 369 (6th Cir.
2001). However, habeas corpus relief will not be granted unless a petitioner has exhausted his
available state court remedies, or available state corrective process is lacking, or resort to such
process would be useless. 28 U.S.C § 2254(b)(1). The Court sees no indication in the complaint
that Plaintiff has exhausted his state court remedies.
The Court has carefully reviewed this case pursuant to 28 U.S.C. § 1915(a) and hereby
CERTIFIES that any appeal from this action would not be taken in good faith. Hence, should
Plaintiff file a notice of appeal, he should also submit an application for leave to proceed in
forma pauperis on appeal and a certified copy of his inmate trust fund account reflecting the
transactions in that account for the six months preceding the filing of the notice. 28 U.S.C. §
AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE
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