McCarrell v. Burks et al
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 3/2/15. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MICHAEL MCCARRELL,
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Plaintiff,
v.
TERRY BURKS AND C.C.A.,
Defendants.
No. 3:15-cv-00143
Judge Campbell
MEMORANDUM
Plaintiff Michael McCarrell (#0485849), an inmate currently housed at the Metro-Davidson
County Detention Facility in Nashville, Tennessee, brings this pro se, in forma pauperis action
under 42 U.S.C. § 1983 against defendants Terry Burks, a correctional officer, and Corrections
Corporation of America. (Docket No. 1)
The plaintiff’s complaint is before the court for an initial review pursuant to the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.
I.
PLRA Screening Standard
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any portion of a civil complaint
filed in forma pauperis 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. Section 1915A similarly
requires initial review of any “complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity,” id. § 1915A(a), and summary
dismissal of the complaint on the same grounds as those articulated in § 1915(e)(2)(B). Id. §
1915A(b).
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). “[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)).
Although pro se pleadings are to be held to a less stringent standard than formal pleadings
drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991), the courts’ “duty to be ‘less stringent’ with pro se complaints does not require
us to conjure up [unpleaded] allegations.” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)
(citation omitted).
II.
Section 1983 Standard
The plaintiff seeks relief pursuant to § 1983. To state a claim under § 1983, the plaintiff
must allege and show two elements: (1) that he was deprived of a right secured by the Constitution
or 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); 42 U.S.C. § 1983.
III.
Alleged Facts
According to the complaint, on July 16, 2014, correctional officer Terry Burks obtained the
plaintiff’s personal bank information and, without the plaintiff’s consent, called the plaintiff’s bank
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and had a debit card in the plaintiff’s name sent to Burks. Burks then used the debit card to access
the plaintiff’s bank account and to withdraw the plaintiff’s money through an automated teller
machine in Nashville, Tennessee. The plaintiff alleges that Burks unlawfully obtained $11,098.00
of the plaintiff’s money. (Docket No.1 at p. 5).
IV.
Analysis
Here, the plaintiff’s allegations involve the theft of personal information and the loss of
money. These allegations present claims of an unlawful deprivation of property under § 1983. The
Due Process Clause of the Fourteenth Amendment protects against unlawful taking of a person’s
property by public officers. However, the Supreme Court has held that, where adequate remedies
are provided by state law, the negligent or intentional loss or destruction of personal property does
not state a claim cognizable under the Due Process Clause of the Fourteenth Amendment. Parratt
v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds, Daniel v. Williams, 474 U.S.
327 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984).
Because the plaintiff’s claim is premised upon allegedly unauthorized acts of a state official,
he must plead and prove the inadequacy of state post-deprivation remedies. See Copeland v.
Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995). Under settled Sixth Circuit law, a prisoner’s failure
to sustain this burden requires dismissal of his § 1983 due process action. See Brooks v. Dutton, 751
F.2d 197 (6th Cir. 1985).
Here, the plaintiff has not and cannot sustain his burden. State post-deprivation remedies are
available to him. Id. at 197. The Sixth Circuit Court of Appeals has held that Tennessee’s statutory
remedy against local governments for loss of property affords an adequate remedy to return items
either negligently or intentionally converted. Id. at 199.
The plaintiff has not alleged that he
attempted post-deprivation remedies and that they were inadequate. In fact, the plaintiff states that
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he filed a grievance with the “main office of C.C.A.” and that defendant Corrections Corporation
of America has acknowledged the plaintiff’s grievance and is “looking into it.” (Docket No. 1 at p.
3). Thus, because there are adequate state post-deprivation remedies available to the plaintiff, his
due process claims against defendant Burks and Corrections Corporation of American concerning
his stolen money will be dismissed.
Further, to the extent that the complaint petitions the court to initiate federal criminal
prosecutions of a defendant, the complaint fails to state claims upon which relief can be granted.
“Authority to initiate a criminal complaint rests exclusively with state and federal prosecutors.”
Tunne v. U.S. Postal Service, No. 2010 WL 290512, at *1 (W.D. Ky. Jan. 21, 2010)(quoting
Sahagian v. Dickey, 646 F. Supp. 1502, 1506 (W.D. Wis. 1986)). Private citizens have “no authority
to initiate a federal criminal prosecution of the defendants for their alleged unlawful acts.” Williams
v. Luttrell, 99 F. App’x 705, 707 (6th Cir. 2004). Thus, this court is without jurisdiction to initiate
any investigations of the alleged crimes.
V.
CONCLUSION
For these reasons, the court finds that the plaintiff’s complaint fails to state claims upon
which relief can be granted under 42 U.S.C. § 1983. 28 U.S.C. § 1915A. In the absence of an
actionable claim, the court must dismiss the complaint sua sponte. 28 U.S.C. § 1915(e)(2).
Accordingly, the plaintiff’s complaint will be dismissed.
An appropriate order will be entered.
__________________________________
Todd J. Campbell
United States District Judge
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