Patton v. Davidson

Filing 11

ORDER Directing Monthly Payments be made from Prison Account of Jay Patton. The Clerk is DIRECTED to file this action without prepayment of fees. Process shall not issue and this action is DISMISSED. All other pending motions are DE NIED as MOOT. The Court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. Plaintiff is ASSESSED the $350.00 filing fee. The Clerk is DIRECTED to send a copy of this memorandum and order to the Warden of Morgan County Correctional Complex, the Commissioner of the TN Dept. of Corrections, the TN Attorney General and the Court's financial deputy.Signed by District Judge Thomas A Varlan on 4/14/11. (C/M)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JAY PATTON #136193,
Plaintiff,
v.

No.:

3:11-cv-130
(VARLAN/GUYTON)

GINGER DAVIDSON,
Defendant.

MEMORANDUM AND ORDER
The Court is in receipt of a pro se prisoner's complaint 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 in the custody of the Tennessee Department of Correction and housed at
Morgan County Correctional Complex (MCCX). His claim concerns an incident involving
the defendant that occurred on September 2, 2009, at MCCX. Plaintiff filed suit against the
defendant for the violation of his civil rights in the Circuit Court for Morgan County,
Tennessee. That court granted the defendant's motion to dismiss by order entered February
11, 2011; a copy of the Order of Dismissal is attached to plaintiff's complaint as Exhibit D.

Plaintiff has titled his pleading in this Court as a Notice of Appeal and states that he
is appealing to this Court the order of dismissal from the Morgan County Circuit Court.
Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the appeal of a final
judgment entered by a trial court in a civil action is to the Tennessee Court of Appeals. This
Court is not the appropriate court to which an appeal may be taken from an order of the
Morgan County Circuit Court and lacks jurisdiction to consider the notice of appeal. See 28
U.S.C. §§ 1331, 1332.1
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. All other pending motions are DENIED as MOOT. 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.

1

The Court notes that, to the extent the Court could treat plaintiff's action as a complaint for
violation of civil rights under 42 U.S.C. § 1983, the complaint would be time-barred.
2

Because the plaintiff is in the custody of the Tennessee Department of Correction, 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.
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
Warden of the Morgan County Correctional Complex, the Commissioner of the Tennessee
Department of Correction, and the Attorney General for the State of 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.

3

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

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