Harmon v. Baird et al (VVV)

Filing 4

MEMORANDUM AND ORDER: This action is DISMISSED sua sponte, as frivolous and for failure to state a claim upon which relief can be granted under § 1983. Because the plaintiff is an inmate in the Blount County Detention Center, he is herewith ASSESSED the civil filing fee of $350.00. 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 c ustodian 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. Signed by District Judge Pamela L Reeves on 12/8/14. (copy mailed to Plaintiff, Sheriff of Blount County, TN, and the county attorney for Blount County Tennessee. Forwarded copy to Court's financial deputy)(JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

JAMES HOWARD HARMON, JR.,
#39762,
Plaintiff,
v.
OFFICER THERMAN BAIRD,
OFFICER JEREMY HUDDLESTON,
And DEPUTY SHAWN BANNACH,
Defendants.

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No.: 3:14-cv-430-PLR-HBG

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, the plaintiff is allowed to proceed in this
action without the prepayment of costs or fees or security therefor. However, for the
reasons stated below, process shall not issue and this action is DISMISSED.
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's allegations concern incidents that occurred in 2008. Federal courts must
refer to state statutes and state law to determine the statute of limitation and tolling rules
with respect to an action brought pursuant to 42 U.S.C. § 1983. Board of Regents v.
Tomanio, 446 U.S. 478 (1980). The applicable statute of limitation controlling a civil
rights action for damages in the State of Tennessee is Tenn. Code Ann. § 28-3-104,
which provides a one (1) year period in which a civil rights lawsuit may be commenced
after the cause of action accrued; the statute begins to run when the plaintiff knows or has
reason to know of the injury upon which his action is based. Sevier v. Turner, 742 F.2d
262, 273 (6th Cir. 1984).
If it is obvious from the face of the complaint that the plaintiff's cause of action is
clearly barred by the applicable statute of limitation, the district court may sua sponte
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dismiss the case as frivolous pursuant to 28 U.S.C. § 1915(e) and § 1915A. See, e.g.,
Day v. E.I. Du Pont De Nemours and Co., No. 97-6233, 1998 WL 669939 *1 (6th Cir.
September 17, 1998) (unpublished decision) ("[A] sua sponte dismissal of an in forma
pauperis complaint is appropriate where the complaint bears an affirmative defense such
as the statute of limitations and is therefore frivolous on its face."). Accordingly,

since

the applicable statute of limitation began to run on plaintiff's claim in 2008, and since this
action was not filed until September 15, 2014, plaintiff's complaint is barred by the
statute of limitation and should be dismissed sua sponte, as frivolous pursuant to 28
U.S.C. § 1915(e) and § 1915A.
In addition, the allegation against defendant Baird is that he issued a citation to
plaintiff on an expired license charge. The allegation against defendant Huddleston is
that he was the affiant on the arrest warrant on a violation of order of protection charge.
The allegation against defendant Bannach is that he was the reporting officer on a charge
of domestic assault. None of these allegations, without more, state a claim against these
defendants under § 1983.
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. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) ("a complaint . . . must
contain either direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory") (internal quotation marks
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omitted; emphasis and omission in original). 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.
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,
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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:

____________________________________
UNITED STATES DISTRICT JUDGE

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