Rembert v. Fishburn et al

Filing 4

MEMORANDUM signed by Senior Judge William J. Haynes, Jr on 10/6/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

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

MACARTHUR REMBERT,
Plaintiffs,

v.
JUDGE MARK J. FISHBURN,
ASSISTANT D.A. JAN NORMAN,
ATTORNEY COURTNEY A. TEASLEY,
POLICE OFFICER [N/F/N] FLOURNOY,
DETECTIVE WILLIE MIDDLETON, and
DETECTIVE DEAN HANEY,
Defendants.

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No. 3:15-cv-0949
Senior Judge Haynes

MEMORANDUM
Plaintiff, MacArthur Rembert, filed this prose action under 42 U.S.C. § 1983 against the
Defendants: Judge Mark J. Fishburn, Assistant D.A. Jan Norman, Attorney Courtney A. Teasley,
Police Officer [n/f/n] Flournoy, Detective Willie Middleton, and Detective Dean Haney. The
complaint (Docket Entry No. 1) is before the Court for an initial review pursuant to the Prison
Litigation Reform Act ("PLRA").
Plaintiff alleges that he was arrested in October 2012 without probable cause and without
a warrant by Defendant Flournoy, despite the existence of a videotape that proved Plaintiffs
innocence. Plaintiff insists that the arrest without probable cause violated his rights under the
Fourth Amendment.
Plaintiff also alleges that Defendant Flournoy lied during court proceedings and that
Defendant Willie Middleton wrote a false affidavit stating a witness had identified Plaintiff as the

perpetrator of a burglary. Plaintiff has now been incarcerated for two years based on Middleton's
and Flournoy's false statements and false reports. Plaintiff claims that "[a]ll other defendants"
violated Plaintiffs rights because they had knowledge of the unlawful arrest.
Plaintiff asserts that Officer Flournoy violated his Fifth Amendment rights by talcing a
statement from him without apprising him of his rights, in accordance with Miranda v. Arizona,
384 U.S. 436 (1966).
Plaintiff seeks relief in the form of immediate release from custody, declaratory and
injunctive relief in the form of a federal criminal investigation into Defendants' actions, that
Judge Fishburn be required to recuse himself from presiding over the criminal proceedings
against Plaintiff, and that Attorney Teasley be required to withdraw from representing Plaintiff.
He also demands $1.8 million in compensatory and punitive damages.
As an initial matter, the Court notes that relief in the form of immediate release from
custody is only available through an action for the writ of habeas corpus under 28 U.S.C. § 2254.
A petitioner may typically pursue federal habeas corpus relief only after exhausting all possible
avenues for relief in the state courts, for example by pursuing a direct appeal of the state-court
conviction and, if that route is unsuccessful, by pursuing a post-conviction petition in the state
courts. Because it does not appear from the present complaint that Plaintiff has exhausted his
state-court remedies, the Court declines to construe the complaint as a petition for the writ of
habeas corpus. Instead, the Court construes the complaint as asserting claims under§ 1983 based
on false arrest and malicious prosecution.
The false-arrest claims are subject to dismissal because they are time-barred. Because
there is no applicable "statute of limitations governing § 1983 actions, 'federal courts must
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borrow the statute of limitations governing personal injury actions in the state in which the
section 1983 action was brought."' Wolfe v. Perry, 412 F.3d 707, 713-14 (6th Cir. 2005)
(quoting Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003)). The statute oflimitations
for personal injury actions arising in Tennessee and brought under the federal civil rights statutes
is one year. Tenn. Code Ann.§ 28-3-104(a)(3); Roberson v. Tennessee, 399 F.3d 792, 794 (6th
Cir. 2005).
Although the statute of limitations for § 1983 is borrowed from state law, a § 1983 action
accrues and the statutory period begins to run according to federal law. Wallace v. Kato, 549 U.S.
384, 388 (2007). Typically, the statute of limitations for filing an action alleging a constitutional
violation begins to run "when the plaintiff knows or has reason to know of the injury which is the
basis of his action." Eidson v. Tenn. Dep 't of Children's Servs., 510 F.3d 631, 635 (6th Cir.
2007) (citing Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 520 (6th Cir. 1997)); see also

Roberson, 399 F.3d at 794 ("A plaintiff has reason to know of his injury when he should have
discovered it through the exercise of reasonable diligence."). In cases of alleged Fourth
Amendment violations brought under§ 1983, the statute of limitations begins to run on the date
that the alleged constitutional violations occurred. Wallace, 549 U.S. at 388. Thus, the statute of
limitations for a§ 1983 action alleging an unlawful arrest without probable cause accrues when
the false imprisonment ends. Id. at 389. "[A] false imprisonment ends once the victim becomes
held pursuant to such process-when, for example, he is bound over by a magistrate or arraigned
on charges." Id.
In this case, Plaintiff was arrested in 2012. The exhibits attached to the complaint indicate
that he was arraigned on Indictment No. 2013-A-684 on March 27, 2013. (Docket Entry No. 1-1,

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at 3.) Thus, Plaintiffs false-arrest claims accrued no later than March 27, 2013, and the statute of
limitations for these claims expired one year later on March 27, 2014. Plaintiff did not file the
present action until more than a year after that. The false-arrest claims are therefore subject to
dismissal with prejudice.
Malicious prosecution, however, is an "entirely distinct" tort characterized by "detention
accompanied, not by absence of legal process, but by wrongful institution of legal process."

Wallace, 549 U.S. at 390 (emphasis in original; internal citation omitted). To prevail on a claim
of malicious prosecution in violation of§ 1983, Plaintiff must allege, among other elements, the
termination of the underlying judicial proceedings in Plaintiffs favor. Heckv. Humphrey, 512
U.S. 477, 484 (1994). Plaintiff here does not allege that the underlying criminal prosecution
against him has terminated at all, much less in his favor. His malicious-prosecution claims are
therefore premature and, as such, subject to dismissal without prejudice to Plaintiffs ability to
reassert such claims if he is eventually exonerated on the pending charges.
Plaintiff does not identify the basis for his claims against Judge Fishburn or defense
counsel Courtney Teasley. Regardless, the claims against Judge Fishburn must be dismissed with
prejudice because the judge is entitled to absolute judicial immunity from suit for damages under
§ 1983. See Mireles v. Waco, 502 U.S. 9, 10-11, (1991) (reconfirming that a judge performing
judicial functions is absolutely immune from suit seeking monetary damages even if acting
maliciously, erroneously, corruptly or in excess of jurisdiction); Collyer v. Darling, 98 F.3d 211,
221 (6th Cir. 1996) (citing Mireles, 502 U.S. at 9). This immunity applies to actions brought
under 42 U.S.C. § 1983 to recover for the alleged deprivation of civil rights. Pierson v. Ray, 386
U.S. 547, 554-55 (1967).

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Absolute judicial immunity may be overcome in only two instances. First, a judge is not
immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial
capacity. Mireles, 502 U.S. at 11. Second, a judge is not immune for actions that, though judicial
in nature, are taken in complete absence of all jurisdiction. Id. at 12. The instant complaint fails
to implicate either of the exceptions to judicial immunity. Moreover, Plaintiff is not entitled to
injunctive relief against Judge Fishburn. See 42 U.S.C. § 1983 (injunctive relief is not available
"in any action brought against a judicial officer for an act or omission taken in such officer's
judicial capacity ... unless a declaratory decree was violated or declaratory relief was
unavailable"). Accordingly, Judge Fishburn is absolutely immune from suit and the complaint
against him must be dismissed with prejudice on that basis.
Plaintiffs§ 1983 claims against his defense counsel, Courtney Teasley, fail too, because
a defense attorney, whether privately retained or appointed by the court, is not a state actor or
person who acts under color of state law and therefore cannot be liable under 42 U.S.C. § 1983.

See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (holding that a public defender "does not act
under color of state law when performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding" and therefore cannot be liable under § 1983); Mulligan v.

Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (holding that a private attorney, even if appointed
by the court, does not act under color of state law). Insofar as Plaintiff seeks to bring claims
against his attorney for ineffective assistance of counsel or attorney negligence, such claims are
premature and will be dismissed without prejudice.

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An appropriate Order is filed herewith.

ENTEREDthisthe

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,2015.

Senior United States District Judge

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