Lowe v. Phillips et al

Filing 8

MEMORANDUM AND OPINION. Based on the foregoing, Plaintiffs motionfor leave to proceed in forma pauperis [Doc. 1] will be GRANTED, and this action will be DISMISSED for failing to state a claim upon which relief may be granted. Accordingly, the remaining non-dispositive motions will be DENIED AS MOOT Signed by District Judge Travis R McDonough on 11/27/2017. (BDG, ) Memorandum and Order mailed to Lowe.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ASATA LOWE,
Plaintiff,
v.
SHAWN PHILLIPS, BRIAN WHITMAN,
LOWELL H. RIDINGS, ERNEST
KEMPER, III, ALCOA POLICE
DEPARTMENT, EDWARD P. BAILEY,
KIRK E. ANDREWS, F.D. GIBSON,
BLOUNT COUNTY DISTRICT
ATTORNEY OFFICE, BLOUNT
COUNTY SHERIFF’S DEPARTMENT,
and TENNESSEE DEPARTMENT OF
CORRECTIONS,
Respondents.

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Case No. 3:17-cv-449-HSM-HBG
Judge Travis R. McDonough
Magistrate Judge H. Bruce Guyton

MEMORANDUM

Before the Court is a complaint pursuant to 42 U.S.C. § 1983 filed by Asata Lowe
(“Plaintiff”) on October 16, 2017 [Doc. 2]. In addition to the complaint, Plaintiff filed a motion
for leave to proceed in forma pauperis [Doc. 1], a motion in equity [Doc. 3], a request to issue
summons and demand jury trial [Doc. 6], and a motion for seizure of person and/or property to
secure satisfaction of the potential judgment [Doc. 7]. Based on the foregoing, Plaintiff’s motion
for leave to proceed in forma pauperis [Doc. 1] will be GRANTED, and this action will be
DISMISSED for failing to state a claim upon which relief may be granted. Accordingly, the
remaining non-dispositive motions will be DENIED AS MOOT.

I.

FILING FEE
According to the financial data supplied in Plaintiff’s inmate trust account statement,

Plaintiff has $0.34 to his credit at the Morgan County Correctional Complex [Doc. 1 p. 9]. Thus,
his motion for leave to proceed in forma pauperis [Doc. 1] is GRANTED. Nonetheless, because
Plaintiff is an inmate, he is ASSESSED the filing fee of three hundred and fifty dollars ($350).
McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007).
The custodian of Plaintiff’s inmate trust account at the institution where he now resides
shall submit, as an initial partial payment, whichever is the greater of: (a) twenty percent (20%)
of the average monthly deposits to Plaintiff’s inmate trust account; or (b) twenty percent (20%)
of the average monthly balance in his inmate trust account for the six-month period preceding
the filing of the complaint. 28 U.S.C. §§ 1915(b)(1)(A) and (B). Thereafter, the trust account
custodian shall submit twenty percent (20%) of Plaintiff’s preceding monthly income (or income
credited to his trust account for the preceding month), but only when such monthly income
exceeds $10.00, until the full filing fee of $350 has been paid to the Clerk’s Office. McGore,
114 F.3d at 607.
Payments should be sent to: Clerk, USDC; 800 Market Street, Suite 130, Knoxville,
Tennessee 37902. To ensure compliance with the fee-collection procedure, the Clerk is
DIRECTED to mail a copy of this order to the custodian of inmate accounts at the institution
where Plaintiff is now confined. The Clerk is also DIRECTED to furnish a copy of this order to
the Court’s financial deputy. This order shall be placed in Plaintiff’s prison file and follow him
if he is transferred to another correctional institution.

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II.

SCREENING REQUIREMENT
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).
In screening this complaint, the Court bears in mind that pro se pleadings filed in civil
rights cases must be liberally construed and held to a less stringent standard than formal
pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, the pleading
must be sufficient “to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007), which simply means that the factual content pled by a
plaintiff must permit a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556).
The “facial plausibility” standard does not require “detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678
(citations and internal quotation marks omitted). The standard articulated in Twombly and Iqbal
“governs dismissals for failure to state a claim under [28 U.S.C. §§ 1915(e)(2) and 1915A]
because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin,
630 F.3d 468, 470–71 (6th Cir. 2010).
To state a claim under 42 U.S.C. § 1983, Plaintiff must establish that she was deprived of
a federal right by a person acting under color of state law. Black v. Barberton Citizens Hosp.,
134 F.3d 1265, 1267 (6th Cir. 1998); O’Brian 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.

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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.”). In other words, the plaintiff must plead facts sufficient to show: (1) the
deprivation of a right, privilege, or immunity secured to him by the United States Constitution or
other federal law; and (2) that the individual responsible for such deprivation was acting under
color of state law. Gregory v. Shelby Cty., 220 F.3d 433, 441 (6th Cir. 2000).
III.

ANALYSIS
Plaintiff was convicted and sentenced to one count of especially aggravated robbery and

two counts of first-degree murder. Plaintiff’s allegations set forth in his complaint appear to
challenge the validity of his incarceration, not atypical conditions that would give rise to a
cognizable § 1983 claim. Plaintiff’s complaint challenges the validity of Tennessee Code
Annotated § 39-13-202 and Tennessee Code Annotated § 39-13-403—the Tennessee criminal
statutes under which he was convicted—as well as Tenn. Code Ann. § 40-35-101—the
Tennessee penal statute under which he was sentenced [Doc. 2 p. 3]. He further asserts that all
chapters and all parts of Titles 4, 6, 8, 23, and 41 of the Tennessee Code Annotated, along with
the Tennessee Rules of Court, deprive him of his rights secured by the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the U.S. Constitution [Id.]. Specifically Plaintiff argues
that (1) “[t]rial counsel failed to provide notice of waiver of rights”; (2) “[e]vidence was
improperly admitted”; and (3) “[d]enial of counsel” [Doc. 2 p. 3-6].
It is well established that prisoners “in state custody cannot use . . . § 1983 action[s] to
challenge ‘the fact or duration of [their] confinement,’” Wilkinson v. Dotson, 544 U.S. 74, 78
(2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)), because “[c]hallenges to the
validity of [one’s] confinement or to particulars affecting its duration are the province of habeas

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corpus,” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. Close, 540 U.S.
749, 750 (2004) (per curiam)). The foregoing rule is not limited to circumstances in which a
prisoner expressly demands that he or she be released from confinement, but instead extends to
all requests for damages or injunctive relief where a favorable ruling would “necessarily imply
the invalidity of [the prisoner’s] conviction or sentence.” LaFountain v. Coleman, No. 10-1207,
2010 U.S. App. LEXIS 27709, at *2–3 (6th Cir. Dec. 30 2010) (citing Heck v. Humphrey, 512
U.S. 477, 486–87 (1994)). To state a claim under the latter scenario—based on “harm caused by
actions whose unlawfulness would render a conviction or sentence invalid”—the plaintiff “must
prove that the [relevant] 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.” Heck, 512 U.S. at
486–87. Requested relief “bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983.” Id. at 487.
In the current case, Plaintiff argues that his trial counsel “failed to provide notice of
[Plaintiff’s] wavier of rights” [Doc. 2 p. 3]. Specifically, Plaintiff argues that trial counsel failed
to object to the following during trial:
1. Counsel failed to object to Plaintiff’s claims regarding the “privilege of
seeking to vindicate federal claims with respect to illegally obtained evidence
in state court,” without providing notice, hearing, or determination that a
hearing was not feasible on the fact of waiver;
2. Counsel failed to object to Plaintiff’s claims regarding the “right to object at
trial for tactical or other reasons,” without providing notice, hearing, or
determination that such hearing was not feasible.
3. Counsel failed to object to Plaintiff’s claims that he was denied the “right to
counsel at the critical stage of the initial appearance hearing before the
magistrate” without providing notice, hearing, or determination that a hearing
was not feasible.

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4. Counsel failed to object to the exclusion of the evidence and made a choice to
waive Plaintiff’s right to vindicate federal claims without providing notice, a
hearing on the facts, and/or a determination that such hearing was not feasible,
when trial and counsel failed to provide consultation or communication to the
Plaintiff so he could assert his opportunity to raise the federal claim and
preserve it for federal review.
5. Counsel failed to object to the denial of counsel at the critical stage of the
initial appearance hearing and made a chose to waive Plaintiff’s right to
vindicate this federal claim without providing notice, a hearing on the facts,
and/or a determination that such hearing was not feasible, when trial and
counsel failed to provide consultation or communication to the Plaintiff so he
could assert his opportunity to raise the federal claim and preserve it for
federal review.
6. Counsel did not notify the Plaintiff that he intended to waive Plaintiff’s right
to present such claims in the federal court, provide a hearing to determine if
the Plaintiff chooses, in fact, whether or not to waive such claims, and failed
to obtain a determination whether there has been a competent and intelligent
waiver of such claims, by inquiring into the background, experience, and
conduct of the Plaintiff.
[Doc. 2 p. 4].
Plaintiff further argues, “[e]vidence was improperly admitted as fruit of an unlawful
search and seizure” [Id.]. He states that “[t]he State failed to provide notice as to the offense
charged or of the reason why the Plaintiff was being arrested” and failed to provide him with the
presumption of innocence [Id. at 5]. Plaintiff maintains actual innocence [Id.]. Plaintiff asserts
that the reason for his arrest was to “frame him for the crime, collect evidence to be used at trial
and to initiate the prosecution, and to coerce the co-defendant into making false statements
against [him]” [Id.].
Moreover, Plaintiff claims he was incarcerated for three days without a formal charge and
that his initial appearance hearing was conducted “in secret” without him, or any counsel
representing him, present [Id. at 6]. Plaintiff claims “[d]uring this secret hearing the defendants

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used all the evidence it [ ] obtained . . . to obtain a warrant to initiate the prosecution against the
Plaintiff” [Id.].
In this case, all of the claims asserted in Plaintiff’s complaint appear to be related to his
arrest, prosecution, criminal trial, and sentencing for a state conviction for especially aggravated
robbery and first-degree murder. If Plaintiff prevailed on the merits of any of these claims, his
success would necessarily implicate the invalidity of his conviction(s). Plaintiff has not set forth
any allegations or evidence that would show that any of his convictions have been vacated or
otherwise set aside. Accordingly, the Court must sua sponte dismiss the action for failure to
state a cognizable § 1983 claim. See Heck, 512 U.S. at 487 (“When a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless . . . the conviction or sentence has already been
invalidated.”); see also Edward v. Balisok, 520 U.S. 641, 646–48 (1997) (extending Heck rule to
claims for declaratory and injunctive relief where a favorable judgment would “necessarily
imply” the invalidity of the prisoner’s “conviction”).1
IV.

REMAINING NON-DISPOSITIVE MOTIONS
In addition to his complaint, Plaintiff has filed a motion in equity [Doc. 3], a request to

issue summons and demand jury trial [Doc. 6], and a motion for seizure of person and/or

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The Court additionally notes that any of Plaintiff’s claims, if brought against the judge or
prosecutors that participated in his trial, would be barred by the doctrine of absolute immunity.
See, e.g., Rehberg v. Paulk, 132 S.Ct. 1497, 1503 (2012) (“[W]e have identified the following
functions that are absolutely immune from liability for damages under § 1983: actions taken by
legislators within the legitimate scope of legislative authority; actions taken by judges within the
legitimate scope of judicial authority; actions taken by prosecutors in their role as advocates; and
the giving of testimony by witnesses at trial[.]”) (internal citations omitted).

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property to secure satisfaction of the potential judgment [Doc. 7]. Based on the above analysis
and conclusion, all three of these pending motions are DENIED AS MOOT.
V.

CONCLUSION
Based on the above, Plaintiff’s motion to proceed in forma pauperis [Doc. 2] is

GRANTED. Nonetheless, Plaintiff will be ASSESSED the filing fee of three hundred and fifty
dollars ($350) and shall follow the procedures as outlined in this memorandum. Furthermore,
the Court finds that Plaintiff has failed to state a claim upon which relief may be granted, and,
therefore, his complaint will be sua sponte DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1).
Accordingly, Plaintiff’s motion in equity [Doc. 3], request to issue summons and demand jury
trial [Doc. 6], and motion for seizure of person and/or property [Doc. 7] are DENIED AS
MOOT.
The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that for the reasons expressed
herein an appeal of this Court’s Order would not be taken in good faith. See McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
AN APPROPRIATE ORDER WILL ENTER.

/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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