Nimmons v. Hoard et al

Filing 6

ORDER Directing Monthly Payments be made from Prison Account of Stanley Edward Nimmons. The Clerk is DIRECTED to file this action without prepayment of costs or fees as of the date the complaint was received. Process shall not issue and this case will be DISMISSED. Plaintiff is assessed the $350.00 filing fee. The Clerk is DIRECTED to send a copy of this memorandum and order to the Sheriff of Blount County, the County Attorney for Blount County and to the Court's financial deputy.Signed by District Judge Thomas A Varlan on 4/22/11. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

STANLEY EDWARD NIMMONS,
Plaintiff,
v.

No.:

3:11-cv-94
(VARLAN/SHIRLEY)

LISA HOARD,
NICHOLAS NITZBAND, and
BLOUNT COUNTY SHERIFF'S OFFICE,
Defendants.

MEMORANDUM AND ORDER
The Court is in receipt of a pro se prisoner's civil rights complaint under 42 U.S.C.
§ 1983 and an application to proceed in forma pauperis. It appears from the application that
the plaintiff lacks sufficient financial resources to pay the $350.00 filing fee. Accordingly,
pursuant to 28 U.S.C. § 1915(b)(4), the Clerk is DIRECTED to file this action without the
prepayment of costs or fees or security therefor as of the date the complaint was received.
However, for the reasons stated below, process shall not issue and this action is
DISMISSED.
Plaintiff is an inmate in the Blount County Detention Center. The defendants are Jail
Investigator Lisa Hoard, Correctional Officer Nicholas Nitzband, and the Blount County
Sheriff's Office. Plaintiff alleges that during a search of his cell on July 16, 2010, defendant
Nitzband found a rope made out of a sheet. According to plaintiff, many inmates use such

ropes for working out. Nevertheless, defendant Nitzband wrote plaintiff up as having a
possible weapon. Defendant Hoard then charged plaintiff criminally as being in possession
of a weapon, a Class C felony. Plaintiff claims the write-up and criminal charge violated his
civil rights because the rope was never used or attempted to be used as a weapon. He seeks
punitive damages against the defendants. Plaintiff specifically states that he is not asking this
Court to assist him in reversing the allegedly phony charges.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that, in order for
a plaintiff inmate to support a § 1983 case against county prosecutors and police for an
alleged unconstitutional conviction, the plaintiff "must prove that his conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal court's
issuance of a writ of habeas corpus." Id. at 486-87. The Court subsequently extended the
principle enunciated in Heck v. Humphrey and held that claims are not cognizable under §
1983 where a judgment in plaintiff's favor would necessarily imply the invalidity of a prison
disciplinary conviction and resulting sanctions. See Edwards v. Balisok, 520 U.S. 641, 648
(1997).
Plaintiff does not allege, nor does the record suggest, that either the criminal charge
or the disciplinary infraction against him has been dismissed or set aside. Accordingly, based
upon the principles of Heck v. Humphrey and Edwards v. Balisok, plaintiff's claims are not
cognizable under § 1983.

2

Although this Court is mindful that a pro se complaint is to be liberally construed,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it is quite clear that the plaintiff has not
alleged the deprivation of any constitutionally protected right, privilege or immunity, and,
therefore, the Court finds his claims to be frivolous under 28 U.S.C. §§ 1915(e) and 1915A.
It appears beyond doubt that plaintiff can prove no set of facts which would entitle him to
relief, Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983), and that plaintiff's claim lacks an
arguable basis in law and fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, this
action is DISMISSED sua sponte, as frivolous and for failure to state a claim upon which
relief can be granted under § 1983. 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.
Because the plaintiff is an inmate in the Blount County Detention Center, he is
herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A)
and (B), the custodian of the plaintiff's inmate trust account at the institution where he now
resides is directed to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130,
Knoxville, Tennessee 37902, as an initial partial payment, whichever is greater of:
(a)

twenty percent (20%) of the average monthly deposits to the plaintiff's inmate

trust account; or
(b)

twenty percent (20%) of the average monthly balance in the plaintiff's inmate

trust account for the six-month period preceding the filing of the complaint.

3

Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's
preceding monthly income (or income credited to the 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 is DIRECTED to send a copy of this Memorandum and Order to the
Sheriff of Blount County, Tennessee, and the county attorney for Blount County, Tennessee,
to ensure that the custodian of the plaintiff's inmate trust account complies with that portion
of the Prison Litigation Reform Act relating to payment of the filing fee. The Clerk is further
DIRECTED to forward a copy of this Memorandum and Order to the Court's financial
deputy.

ENTER:

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

4