Mayers v. Boyd et al

Filing 11

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/8/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

RICHARD A. MAYERS,
No. 88408,
Plaintiff,
v.
JOEY BOYD, et al.,
Defendants.

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Case No. 3:14-cv-01560
Judge Trauger

MEMORANDUM
Plaintiff Richard A. Mayers, an inmate incarcerated in the Metro-Davidson County Detention
Facility in Nashville, Tennessee, filed this pro se action under 42 U.S.C. § 1983 against several individual
defendants and the Millersville Police Department and 20th Judicial District Drug Task Force.

The

complaint is before the court for an initial review pursuant to the PLRA, 28 U.S.C. §§ 1915(e)(2) and
1915A; 42 U.S.C. § 1997e(c).
I.

Standard of Review
Under the PLRA, the court must conduct an initial review of any civil complaint filed in forma

pauperis, 28 U.S.C. § 1915(e)(2), or brought by a prisoner-plaintiff against government entities or officials,
28 U.S.C. § 1915A, or challenging the conditions of confinement, 42 U.S.C. § 1997e(c). Upon conducting
this review, the court must dismiss the complaint, or any portion thereof, that fails to state a claim upon
which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c). The Sixth Circuit has confirmed
that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim
under those statutes 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). Thus, to survive scrutiny on initial review, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
In reviewing the complaint to determine whether it states a plausible claim, “a district court must
(1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing
Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be
liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Pro se
status, however, does not exempt a plaintiff from compliance with relevant rules of procedural and
substantive law. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (“Neither [the Supreme] Court nor
other courts . . . have been willing to abrogate basic pleading essentials in pro se suits.”); see also Brown
v. Matauszak, 415 F. App’x 608, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for
failure to comply with “unique pleading requirements” and stating, “a court cannot create a claim which [a
plaintiff] has not spelled out in his pleading”) (citation and internal quotation marks omitted; alteration in
original).
II.

Factual Allegations
The plaintiff alleges that in August 2013, Tennessee Bureau of Investigation confidential

informant Matthew Ellis conspired with the defendant police officers to “trap and shoot” the plaintiff. (ECF
No. 1, at 5.) He alleges that when he met the informant at a Waffle House in Goodlettsville to sell him
some suboxone, the police officers tried to trap him there. (Id.)

He alleges that he was armed for

protection against a drug cartel that had threatened his family, and that he thinks he pointed his firearm in
the general direction of the officers. (Id.) He alleges that after fleeing for two blocks, he tried to get out of
his vehicle but was unable to do so because he was under gunfire, and that he was hit in both legs,
dragged from his vehicle, had his head stomped and was sprayed with pepper spray. (Id.) Finally, he
alleges that defendant Boyd was called to investigate the shooting, and that he conspired to commit
perjury by testifying to the Sumner County grand jury that he was involved in the original pursuit. (Id.)
III.

Discussion
The plaintiff seeks to bring suit under 42 U.S.C. § 1983 to vindicate alleged violations of his
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federal constitutional rights. Section 1983 confers a private federal right of action against any person
who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by
the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Thus,
to state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the
Constitution and laws of the United States, and (2) that “the deprivation was caused by a person acting
under color of state law.” Tahfs v. Proctor, 316 F. 3d 584, 590 (6th Cir. 2003) (citations omitted); 42
U.S.C. § 1983.
Construing the complaint liberally, the plaintiff alleges that he was subjected to excessive force in
the course of his arrest. “[C]laims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness' standard.” Jones v. City of Cincinnati, 521 F.3d
555, 559 (6th Cir. 2008) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Whether the force used
during an arrest is “reasonable” depends on three factors: “(1) the severity of the crime at issue; (2)
whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the
suspect is actively resisting arrest or attempting to evade arrest by flight.” Sigley v. City of Parma Heights,
437 F.3d 527, 534 (6th Cir. 2006) (quoting Dunigan v. Noble, 390 F.3d 486, 492 (6th Cir. 2004)). The
“proper application [of this test] requires careful attention to the facts and circumstances of each particular
case.” Graham, 490 U.S. at 396. It is not apparent from the complaint that the plaintiff was still actively
resisting or fleeing or that he posed an immediate threat by the time he was allegedly shot, stomped and
pepper sprayed. The plaintiff has alleged sufficient facts to state a colorable claim for this violation.
The identity of the proper defendants, however, is a separate matter. Neither the Millersville
Police Department nor the 20th Judicial District Drug Task Force are “persons” subject to suit under §
1983, and they will accordingly be DISMISSED from this action. Matthews v. Jones, 35 F.3d 1046, 1049
(6th Cir. 1994); Timberlake by Timberlake v. Benton, 786 F. Supp. 676, 683 (M.D. Tenn. 1992). Because
the plaintiff has not alleged that the excessive force allegedly used against him was exerted under the
authority of an unconstitutional policy or custom adopted by the governmental entities under whose
auspices the police force or task force operate, he would not state a claim against those governments
even if he named them in lieu of the law enforcement agencies. Matthews, 35 F.3d at 1049.

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The court has also questioned whether the alleged confidential informant, Matthew Ellis, can be
deemed to have acted under color of state law for the purpose of liability under § 1983. The Sixth Circuit
has declined “‘to establish a per se rule that the activities of paid government informants must always be
considered government action.’” Hiser v. City of Bowling Green, 42 F.3d 382, 383 (6th Cir.1994) (quoting
Ghandi v. Police Dep't, 823 F.2d 959, 963 (6th Cir.1987)). Federal courts may find informants to be acting
under color of state law for § 1983 purposes “if the informant acts in an investigatory capacity at the
direction of or under the supervision of governmental authorities and if there is a nexus between the
informant's activities and the activities of the authorities themselves.” Harper v. Bohanan, No. 3:97-cv-80,
2006 WL 319029, at *17 (E.D. Tenn. Feb.8, 2006) (citations and internal quotation marks omitted).
However, other courts have determined that private actors, without proof of a “close nexus” to law
enforcement officers, are not state actors for § 1983 purposes even when they provide a false report to
the police. Id. (citing Ferebee v. Smith, 2005 WL 2709488, at *3 (D.S.D. 2005); Daniel v. Ferguson, 839
F.2d 1124, 1130 (5th Cir. 1988)).

For the purpose of initial screening under the PLRA, the court

concludes that the plaintiff’s allegation that Ellis conspired with police officers to trap and shoot the
plaintiff is sufficient to state a claim for Ellis’s liability as a state actor on the plaintiff’s excessive force
claim. The court cautions that this is an initial determination, and that it is subject to reconsideration as
the case develops.
Finally, the court considers whether the plaintiff states a viable claim against Defendant Boyd,
who was allegedly not part of the “original chase,” but lied to that effect to the grand jury after being called
to the scene to investigate the shooting. Law enforcement officers enjoy absolute witness immunity for §
1983 claims arising from testimony before a grand jury, Alioto v. City of Shively, Ky., 835 F.2d 1173, 1174
(6th Cir. 1987), and that immunity is not defeated even by a claim of conspiracy to commit perjury.
Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). Accordingly, the plaintiff has not stated a
viable claim against Joey Boyd, and Boyd will be DISMISSED from this action.

IV.

CONCLUSION
For the reasons set forth herein, Defendants Joey Boyd, Millersville Police Department and 20th

Judicial District Drug Task Force will be DISMISSED from this action with prejudice. With respect to the

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remaining defendants, construing the complaint liberally, the plaintiff has stated a colorable claim for
violation of his Fourth Amendment right to be free from excessive force during his arrest. The plaintiff will
be provided with service packets for the remaining defendants, and process shall issue for them upon the
return of the completed packets. An appropriate order is filed herewith.

Aleta A. Trauger
United States District Judge

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