Brooks v. Rose et al (TVV)

Filing 9

MEMORANDUM AND ORDER directing the Clerk to file this action without the prepayment of costs or fee as of the date the complaint was received. Plaintiff's motion to amend is granted. However, process shall not issue, and this a ction 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. Because the plaintiff is in the custody of the Tennessee Department of Correction, he is herewith ASSESSED the civil filing fee of $350.00. The Clerk is DIRECTED to send a copy of this Memorandum and Or der 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 com plies 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. Signed by Chief District Judge Thomas A Varlan on May 16, 2013. (mailed to Mr. Brooks) (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
RUSSELL DALE BROOKS,
Plaintiff,
v.

No.:

3:13-cv-110
(VARLAN/SHIRLEY)

DR. CARROLL ROSE,
SHERIFF EARL LOY, JR.,
and RODNEY MINOR,
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. Plaintiff has also filed a motion to
amend the complaint to add additional defendants. 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.
In addition, plaintiff's motion to amend is GRANTED. However, for the reasons stated
below, process shall not issue and this action as amended is DISMISSED. All other pending
motions are DENIED as MOOT.
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. Black v. Barberton
Citizens Hospital, 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) ("Section 1983
does not itself create any constitutional rights; it creates a right of action for the vindication
of constitutional guarantees found elsewhere.").
Under the Prison Litigation Reform Act (PLRA), district courts must screen prisoner
complaints and sua sponte dismiss those that are frivolous or malicious, fail to state a claim
for relief, or are against a defendant who is immune. See, e.g., Benson v. O'Brian, 179 F.3d
1014 (6th Cir. 1999).
Responding to a perceived deluge of frivolous lawsuits, and, in particular,
frivolous prisoner suits, Congress directed the federal courts to review or
"screen" certain complaints sua sponte and to dismiss those that failed to state
a claim upon which relief could be granted, that sought monetary relief from
a defendant immune from such relief, or that were frivolous or malicious.
Id. at 1015-16 (6th Cir. 1999) (citing 28 U.S.C. §§ 1915(e)(2) and 1915A).
Plaintiff is in the custody of the Tennessee Department of Correction. His complaint
concerns an alleged denial of medical care during his confinement in the Union County Jail.
The defendants named in the original complaint are Dr. Carroll Rose, Sheriff Earl Loy, Jr.,
and Jail Administrator Rodney Minor. In his motion to amend the complaint, plaintiff names
as additional defendants Correction Officers Gordon Sartain, Tracy Collins, Jane Doe, and
John Doe.
Plaintiff makes various allegations in his original complaint that he has been denied
medical treatment for his physical and mental conditions and he makes the general allegation
that the denial of treatment lies with someone within the jail administration. But plaintiff
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fails to make specific allegations against any of the individual defendants. Likewise, in his
motion to amend, plaintiff simply lists the additional defendants with no allegations against
them. For that reason, plaintiff's complaint as amended fails to state a claim for relief. "[A]
plaintiff must plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009).
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 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
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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.

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
CHIEF UNITED STATES DISTRICT JUDGE
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