McElyea Jr v. Kerns et al

Filing 3

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 3/1/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

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

CHARLES H. McELYEA, JR.,
Plaintiff,
v.
ALLEN KERNS et al.,
Defendants.

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No. 3:16-cv-3157
Judge Aleta A. Trauger

MEMORANDUM OPINION
Plaintiff Charles H. McElyea, proceeding pro se, has filed a civil complaint against
Defendants Judge Allen D. Kerns of the Chancery Court for Dickson County, Tennessee and
Assistant District Attorney Steven Powers; both of the defendants are sued in their individual and
official capacities. (ECF No. 1.) Additionally, the plaintiff has applied to proceed in forma
pauperis. (ECF No. 2)
Because it is apparent from the plaintiff’s application that he lacks sufficient resources
from which to pay the required filing fee, his application to proceed in forma pauperis (ECF No.
2) will be granted.
Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of
any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or
malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47
(Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114
F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199

(2007)). The Court must construe a pro se plaintiff’s complaint liberally, Boag v. McDaniel, 454
U.S. 364, 365 (1982), and accept the plaintiff’s allegations as true unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
I.

FACTUAL ALLEGATIONS
The plaintiff alleges that on September 19, 2016 he was before Judge Kerns in

connection with a petition for civil contempt for failure to pay child support in the matter of State
of Tennessee ex rel. Mitzi Gay McElyea v. Charles H. McElyea, Case No. 4886-97. Assistant
District Attorney (ADA) Powers was present at the hearing, apparently on behalf of the state. At
the hearing, Judge Kerns ordered the plaintiff jailed, although it appears that immediately after
he was sent to jail, he was “furlough[ed] today . . . at 8 p.m. until 1-23-17 @ 8 am.” (ECF No.
1 at Page ID# 4.) The plaintiff alleges that Judge Kerns and ADA Powers violated his right to
due process because he did not have an attorney at the hearing. As relief, the plaintiff seeks an
injunction that the defendant “stop all actions against [him]” and compensatory and punitive
damages. (ECF No. 1 at Page ID# 3.)
II.

STANDARD OF REVIEW
If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the

court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii). In assessing whether the complaint in this case states a claim on
which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009), and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). See Hill v. Lappin, 630 F.3d 468,
470–71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)] because the relevant

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statutory language tracks the language in Rule 12(b)(6)”). “Accepting all well-pleaded
allegations in the complaint as true, the court ‘consider[s] the factual allegations in [the]
complaint to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original).
“[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some
factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement
of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the
claim rests.”).
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal
quotation marks and citation omitted). Pro se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989). The court is not required to create a claim for the plaintiff. Clark v. Nat’l Travelers
Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975); see also Brown v. Matauszak, 415 F. App'x
608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out
in his pleading”) (internal quotation marks and citation omitted); Payne v. Sec’y of Treas., 73 F.
App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's
claim for her”). To demand otherwise would require the “courts to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its

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legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). Finally, the court need not sift through exhibits attached to the plaintiff’s
complaint in order to determine what, if any, basis exists for the plaintiff’s claims against the
defendants. See Jackson v. Lawrence Corr. Ctr. Heatlh Care, No. 15-cv-00082-JPG, 2015 WL
603853, at *2 (S.D. Ill. Feb. 12, 2015).
III.

DISCUSSION
A. Judge Kerns
The plaintiff claims that when he appeared before Judge Kerns in connection with a civil

contempt case for failure to pay child support, Judge Kerns ordered that the plaintiff be jailed.
The plaintiff asserts that, by doing so, Judge Kerns violated his Fourteenth Amendment due
process rights.
Generally, a judge is absolutely immune from a suit for monetary damages. Mireles v.
Waco, 502 U.S. 9, 9-10 (1991) (recognizing that “it is a general principle of the highest
importance to the proper administration of justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own convictions, without apprehension of
personal consequences to himself.”) (internal quotations omitted); Barrett v. Harrington, 130
F.3d 246, 254 (6th Cir. 1997); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997).
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; see Forrester v. White, 484 U.S. 219, 229 (1988) (noting that
immunity is grounded in “the nature of the function performed, not the identity of the actor who
performed it”). Second, a judge is not immune for actions, though judicial in nature, taken in

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complete absence of all jurisdiction. Mireles, 502 U.S. at 12.
The plaintiff’s allegations fail to implicate either of the exceptions to judicial immunity.
There is no doubt that conducting a civil contempt hearing was a judicial act, and the plaintiff
does not suggest that Judge Kerns was acting without jurisdiction to do so. Accordingly, Judge
Kerns is absolutely immune from liability for money damages.
Moreover, injunctive relief is not available under § 1983 against Judge Kerns
individually, because injunctive relief “shall not be granted” in an action 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.” 42 U.S.C. § 1983; accord Savoie v.
Martin, 673 F.3d 488, 496 (6th Cir. 2012). The plaintiff does not allege that a declaratory decree
was violated or that declaratory relief was unavailable. Consequently, his claim for injunctive
relief against Judge Kerns individually is barred. Montero v. Travis, 171 F.3d 757, 761 (2d Cir.
1999).
B. ADA Powers
The plaintiff fails to set forth any facts to suggest that what ADA Powers did at the civil
contempt hearing violated the plaintiff’s due process rights.
It is a basic pleading essential that a plaintiff attribute factual allegations to particular
defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a plaintiff
must make sufficient allegations to give a defendant fair notice of the claim). Where a person is
named as a defendant without an allegation of specific conduct, the complaint is subject to
dismissal, even under the liberal construction afforded to pro se complaints. See Gilmore v.
Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint where the
plaintiff failed to allege how any named defendant was involved in the violation of his rights);

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Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000)
(requiring allegations of personal involvement against each defendant); Rodriguez v. Jabe, No.
90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (finding that the “[p]laintiff’s claims
against those individuals are without a basis in law as the complaint is totally devoid of
allegations as to them which would suggest their involvement in the events leading to his
injuries”). Because the plaintiff has failed to set forth any facts to support his allegation that
ADA Powers violated his due process rights, the plaintiff’s claim against ADA Powers
individually must be dismissed.
Moreover, even if the plaintiff had alleged facts supporting his allegation that ADA
Powers violated his due process rights, his claim against ADA Powers individually would still be
dismissed because ADA Powers is entitled to absolute immunity for his actions in connection
with the plaintiff’s civil contempt proceeding.
The Supreme Court embraces a functional approach to determining whether a prosecutor
is entitled to absolute immunity. Kalina v. Fletcher, 522 U.S. 118, 127 (1997); Burns v. Reed,
500 U.S. 478, 486 (1991); Forrester v. White, 484 U.S. 219, 229 (1988); accord Koubriti v.
Convertino, 593 F.3d 459, 467 (6th Cir. 2010). Using this approach, courts have concluded that
a prosecutor is protected “in connection with his duties in functioning as a prosecutor.” See
Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002) (looking to the “nature of the function
performed, not the identity of the actor who performed it”). Accordingly, prosecutors are
absolutely immune from many malicious prosecution claims. Burns, 500 U.S. at 485 n. 4 (citing
Yaselli v. Goff, 275 U.S. 503 (1927)).

Moreover, even the knowing presentation of false

testimony at trial is protected by absolute immunity. See Imbler v. Pachtman, 424 U.S. 409, 430
(1976); see also Buckley, 509 U.S. at 267 n. 3 (noting the Seventh Circuit’s conclusion that

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“[p]resenting ... fabricated evidence to the grand jury and ... trial jury ... [are] actions protected
by absolute immunity.” (citing Buckley v. Fitzsimmons, 919 F.2d 1230, 1243 (7th Cir. 1990))).
As the Sixth Circuit has explained, “The analytical key to prosecutorial immunity,
therefore, is advocacy—whether the actions in question are those of an advocate.” Holloway, 220
F.3d at 775. Thus, the “critical inquiry is how closely related is the prosecutor’s challenged
activity to his role as an advocate intimately associated with the judicial phase of the criminal
process.” Id.; see also Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000) (recognizing “that
immunity is granted to prosecutors ‘pursuing a civil action’ when they are ‘functioning in an
enforcement role and acting as advocates for the state.”)
The plaintiff fails to set forth any facts suggesting what ADA Powers did at the civil
contempt hearing that the plaintiff believes violated his Fourteenth Amendment rights. Suffice it
to say, however, the plaintiff’s allegations suggest that whatever ADA Powers did that allegedly
violated the plaintiff’s constitutional rights, he did in the course of representing the state at the
civil contempt hearing. Because the plaintiff’s allegations relate to ADA Powers’ role as an
advocate during the plaintiff’s civil contempt hearing, he is entitled to absolute immunity.
C. Official Capacity Allegations
The plaintiff also sues Judge Kern and ADA Powers in their official capacities.
A suit against an individual in his official capacity is equivalent to a suit brought against
the governmental entity: in this case, the State of Tennessee. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Judge
Kerns and ADA Powers are state officials. Gooch v. Gay, No. 3:13-cv-0465, 2013 WL 2476560,
at *4 (M.D. Tenn. June 7, 2013). An official-capacity defendant is absolutely immune from
monetary damages. Will, 491 U.S. at 71; Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453,

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456 (6th Cir. 1998); Wells v. Brown, 891 F.2d 591, 592-93 (6th Cir. 1989). Therefore, the court
dismisses the suit for monetary relief against Judge Kerns and ADA Powers in their official
capacities.
Moreover, even if Judge Kerns and ADA Powers were not immune from suit for
damages, to succeed on a claim against them in their official capacities, the plaintiffs must show
that he has suffered harm because of a constitutional violation and that a policy or custom of the
entity, in this case the state, caused the harm. Monell v. New York City Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978); Soper v. Hoben, 195 F.3d 845, 853-54 (6th Cir. 1999). The plaintiff has
not set forth any facts suggesting that any policy or custom caused the constitutional violations
alleged herein. See Meyers v. City of Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994) (noting that
the policy requirement for municipal liability “is meant to distinguish those injuries for which the
government as an entity is responsible under § 1983 from those injuries for which the
government should not be held accountable.”) (internal citation and quotation marks omitted).
Consequently, the plaintiff has failed to allege a claim for damages against Judge Kern and ADA
Powers in their official capacities.
However, state officials can be sued in their official capacity for prospective injunctive
relief. See Ex Parte Young, 209 U.S. 123 (1908). The plaintiff claims that he was sent to jail in
connection with civil contempt proceedings for failure to pay child support, despite not having a
lawyer present. “The Due Process Clause does not automatically require the provision of
counsel at civil contempt proceedings to an indigent individual who is subject to a child support
order, even if that individual faces incarceration (for up to a year).” Turner v. Rogers, 564 U.S.
431, 448 (2011) (emphasis in original). Rather, the court must consider three factors before
deciding whether the appointment of counsel is required. Id. at 446. First, “the critical question

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likely at issue [is] . . . the defendant’s ability to pay.” Id. Second, whether “the person opposing
the defendant at the hearing is . . . the government represented by counsel, [or] the custodial
parent unrepresented by counsel.” Id. (emphasis in original). Lastly, the court must consider
whether “there is available a set of ‘substitute procedural safeguards,’ which if employed
together, can significantly reduce the risk of an erroneous deprivation of liberty.” Id.
But Turner was an appeal from a finding of contempt, not a separate §1983 action.
District Courts have routinely found that Turner cannot provide the foundation for a § 1983
action. See Canaan v. City of El Paso, No. EP-16-CV-00132-DCG, 2017 WL 129027, at *6
(W.D. Tex. Jan. 12, 2017) (recognizing that courts have declined to apply or extend Turner to
factual circumstances beyond those in Turner, and listing cases where courts found that Turner
could not provide the foundation for a § 1983 claim). Consequently, the plaintiff fails to
sufficiently state a due process claim against Judge Kerns. Additionally, the plaintiff fails to
state a claim against ADA Powers because there are no allegations to suggest that he is
responsible for the plaintiff’s being jailed.
IV.

CONCLUSION
For the reasons set forth herein, the plaintiff’s complaint will be dismissed. For the same

reasons that the court dismisses this action, the court finds that an appeal of this action would not
be taken in good faith. The court therefore certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal in this matter by Plaintiff would not be taken in good faith, and Plaintiff will not be
granted leave by this court to proceed on appeal in forma pauperis. An appropriate order is filed
herewith.

ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE
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