Richards v. Brackins et al

Filing 3

ORDER Directing Monthly Payments be made from Prison Account of Anthony Richards. 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.Howev er, for the reasons stated below, process shall not issue and this action is DISMISSED. Plaintiff is ASSESSED the filing fee of $350.00. The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Sheriff of Sevier County, TN and the County Attorney for Sevier County, TN and to the Court's financial deputy.Signed by District Judge Thomas A Varlan on 1/9/12. (c/m)(ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

ANTHONY T. RICHARDS,
Plaintiff,
v.

No.:

3:11-cv-555
(VARLAN/SHIRLEY)

CHIEF RANDY BRACKINS,
DET. TIM WILLIAMS, and
GATLINBURG POLICE DEPT.,
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 Sevier County Jail. His complaint concerns the alleged
violation of his civil rights during his brief confinement in the city jail of Gatlinburg,
Tennessee. The defendants are Gatlinburg Police Chief Randy Brackins, Detective Tim
Williams, and the Gatlinburg Police Department.

At the outset, the Court notes that the Gatlinburg Police Department is not a suable
entity within the meaning of 42 U.S.C. § 1983. See Matthews v. Jones, 35 F.3d 1046, 1049
(6th Cir. 1994) (a police department is not an entity which can be sued under § 1983); see
also De La Garza v. Kandiyohi County Jail, 18 F. App'x 436, 437 (8th Cir. 2001) (neither
a county jail nor a sheriff's department is a suable entity); Dean v. Barber, 951 F.2d 1210,
1214 (11th Cir. 1992) ("[s]heriff's departments and police departments are not usually
considered legal entities subject to suit").
With respect to defendants Brackins and Williams, plaintiff did not state in his
complaint whether the defendants are sued in their official capacities or individual capacities.
Accordingly, the Court must presume that the defendants have been sued in their official
capacities only. Wells v. Brown, 891 F.2d 591 (6th Cir. 1989). Because the defendants have
been sued only in their official capacities, the Court must proceed as if plaintiff has in fact
sued the City of Gatlinburg, Tennessee. Kentucky v. Graham, 473 U.S. 159, 165 (1985);
Brandon v. Holt, 469 U.S. 464, 471 (1985); Monell v. Department of Social Services of City
of New York, 463 U.S. 658, 690 n.55 (1978). Given that, in order to prevail plaintiff must
demonstrate that the violation of his constitutional rights resulted from acts representing
official policy or custom adopted by Gatlinburg, Tennessee. Monell, 463 U.S. at 690-91;
Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245-46 (6th Cir. 1989).
Generally, plaintiffs must designate in which capacity they are suing
defendants; if not, by operation of law, defendants are deemed sued in their
official capacities. Suing a public official in his official capacity for acts
performed within the scope of his authority is equivalent to suing the
governmental entity.
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Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999) (internal citations omitted). "A local
governmental entity may be held liable under 42 U.S.C. § 1983 for violations of federal law
committed pursuant to a governmental 'policy or custom.'" Id.
Plaintiff does not claim, nor does the record suggest, that the alleged violation of his
rights was the result of any policy or custom on the part of the City of Gatlinburg, Tennessee.
Accordingly, plaintiff's complaint fails to state a claim upon which relief may be granted
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 Sevier County Jail, 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

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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
Sheriff of Sevier County, Tennessee, and the county attorney for Sevier 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

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