Gardner v. Morriss et al

Filing 5

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/5/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID GARDNER,
No. 00094231,

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Plaintiff,
v.
DENT MORRISS, et al.,
Defendants.

No. 3:17-cv-00811
Judge Trauger

MEMORANDUM
Plaintiff, an inmate of the Whiteville Correctional Facility in Whiteville, Tennessee, brings
this pro se, in forma pauperis action under 42 U.S.C. § 1983 against Dent Morriss, Mike Jones,
Glenn Funk, John Wesley, Whitley Ray, Judge Gay, Phyllis Morriss, Goodlett Collier, John
Gasaway, and Gregory Smith, alleging violations of the Plaintiff’s federal civil rights. (Doc. No. 1).
The 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. The Plaintiff also filed a “motion to
amend and add defendants.” (Doc. No. 3).
I.

Motion to Amend
Rule 15(a) (2) of the Federal Rules of Civil Procedure states that leave to amend should be

freely given “when justice so requires.” In deciding whether to grant a motion to amend, courts
should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th

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Cir. 2005). “Amendment of a complaint is futile when the proposed amendment would not permit
the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th
Cir.2005) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23
(6th Cir.1980)).
Although there appears to be no undue prejudice to the opposing parties by permitting the
Plaintiff to amend his complaint at this time, the “motion to amend and add defendants” (Doc. No.
3) does not explain why the Plaintiff wishes to add the two named individuals as Defendants. The
Plaintiff fails to allege any specific personal involvement of either Jason White or John Germanis
in the events described in the complaint. A plaintiff must identify the right or privilege that was
violated and the role of the defendant in the alleged violation, Dunn v. Tennessee, 697 F.2d 121, 128
(6th Cir. 1982), and the Plaintiff here has failed to do so with regard to these two proposed
Defendants. The Court therefore will deny the motion to amend as futile.
II.

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),
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“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).
III.

Section 1983 Standard
Plaintiff brings his federal claims pursuant to 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983

creates a cause of action against any person who, acting under color of state law, abridges “rights,
privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under § 1983,
a 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.
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IV.

Alleged Facts
The complaint alleges that Defendant Morriss “and other defendants . . . intentionally,

maliciously, wrongfully, and illegally” had the Plaintiff incarcerated “out of revenge.” (Doc. No.
1 at 5). According to the complaint, the Plaintiff was prosecuted by Defendant Morriss who, the
Plaintiff later found out, was engaged at the time to the victim of the Plaintiff’s alleged crimes,
Defendant Phyllis Morriss. The complaint alleges that Defendant Morriss conspired with his now
wife, Defendant P. Morriss, “to maliciously prosecute and violate Mr. Gardner’s constitutional rights
to freedom and cause Mr. Gardner’s incarceration and deprived him of his Federal guaranteed
rights.” (Id. at 8). Further, the complaint alleges that Defendants D. Morris and Gregory Smith
threatened the Plaintiff’s life during the Plaintiff’s post-conviction proceedings in an effort to quiet
him. (Id. at 9).
V.

Analysis
A.

Malicious prosecution claims

The complaint alleges federal malicious prosecution claims against all Defendants. However,
regarding most of the Defendants named in the complaint, the Plaintiff fails to allege any specific
personal involvement of those Defendants in the events described in the complaint. A plaintiff must
identify the right or privilege that was violated and the role of the defendant in the alleged violation,
Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982), and the Plaintiff here has failed to do so with
regard to Mike Jones, Glenn Funk, John Wesley, Whitley Ray, Judge Gay, Goodlett Collier, and
John Gasaway. Therefore, the Plaintiff’s claims against those Defendants must be dismissed.
As to the Plaintiff’s claims against Defendants Dent Morris, Phyllis Morriss, and Gregory
Smith, “[t]he Sixth Circuit ‘recognize[s] a separate constitutionally cognizable claim of malicious

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prosecution under the Fourth Amendment,’ which ‘encompasses wrongful investigation,
prosecution, conviction, and incarceration.’” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010)
(quoting Barnes v. Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). “The ‘tort of malicious
prosecution’ is ‘entirely distinct’ from that of false arrest, as the malicious-prosecution tort ‘remedies
detention accompanied not by absence of legal process, but by wrongful institution of legal
process.’” Id. (quoting Wallace, 549 U.S. at 390). To succeed on such a claim, the plaintiff must
show that (1) a criminal prosecution was initiated against the plaintiff, and the defendant made,
influenced, or participated in the decision to prosecute; (2) there was a lack of probable cause for the
criminal prosecution; (3) the plaintiff suffered a deprivation of liberty; and (4) the criminal
proceeding has been resolved in the plaintiff's favor. Id.; see also Heck v. Humphrey, 512 U.S. 477,
486–87, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that, to recover damages under § 1983
for an allegedly unconstitutional conviction, “or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” the plaintiff must prove that the
conviction or sentence has been reversed, expunged, declared invalid, or called into question by a
federal court's issuance of a writ of habeas corpus).
The Plaintiff cannot sue Defendant D. Morris, who the Plaintiff identifies as “a district
attorney who works for the State of Tennessee, who at all times mentioned in this complaint held
the rank of Lead Prosecutor assigned to the plaintiff’s case” (Doc. No. 1 at 3), for money damages
arising from the institution of criminal proceedings against him. Prosecutors are absolutely immune
from suit for actions taken in initiating and pursuing criminal prosecutions because that conduct is
“intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S.
409, 430–31, 96 S. Ct. 984, 47 L.Ed.2d 128 (1976). “A prosecutor's decision to initiate a

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prosecution, including the decision to file a criminal complaint or seek an arrest warrant, is protected
by absolute immunity.” Howell v. Sanders, 668 F.3d 344, 351 (6th Cir. 2012). Therefore, the
Plaintiff's claims for money damages against Defendant D. Morriss for these activities are barred by
absolute prosecutorial immunity. Id. at 427–28; Burns v. Reed, 500 U.S. 478, 490–492, 111 S. Ct.
1934, 114 L.Ed.2d 547 (1991); Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 1989); Jones v.
Shankland, 800 F.2d 77, 80 (6th Cir. 1986).
Furthermore, the complaint does not allege that Plaintiff’s conviction or sentence has been
reversed, expunged, declared invalid, or called into question by a federal court's issuance of a writ
of habeas corpus. Thus, because the complaint does not allege that the criminal proceedings have
been resolved in the Plaintiff’s favor,

the Plaintiff’s malicious prosecution claims against

Defendants D. Morriss, P. Morriss, and Gregory Smith must be dismissed.
B.

Heck claims

Some of the Plaintiff’s claims sound in habeas corpus and are not appropriately brought in
a § 1983 action. The law is well established that “habeas corpus is the exclusive remedy for a state
prisoner who challenges the fact or duration of his confinement . . . even though such a claim may
come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481 (1994)(citing
Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973))(emphasis added). A § 1983 claim challenging
confinement must be dismissed even where a plaintiff seeks only injunctive or monetary relief.
Heck, 512 U.S. at 489-90 (claim for damages is not cognizable); Preiser, 411 U.S. at 488-90 (claim
for injunctive relief is only cognizable under 28 U.S.C. § 2254). Additionally, a state prisoner does
not state a cognizable claim under § 1983 where a ruling on his claim would imply the invalidity of
his conviction and/or confinement, unless and until the conviction has been favorably terminated,

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i.e., reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or
called into question by a federal court’s issuance of a writ of habeas corpus. Heck, 512 U .S. at
486-87; Ruff v. Runyon, 258 F.3d 498, 502 (6th Cir. 2001). More recently, the United States
Supreme Court extended Heck to bar § 1983 actions that do not directly challenge confinement, such
as here, but instead challenge the procedures that imply unlawful confinement. Edwards v. Balisok,
520 U.S. 641, 648 (1997).
Under Heck, the Court cannot grant the relief requested (release from custody) by the
Plaintiff in his complaint. (Doc. No. 1 at 11). The Plaintiff’s claims concerning the validity of his
continued confinement would be more appropriately brought in a separate petition for writ of habeas
corpus, not in a civil rights complaint. Those claims will be dismissed without prejudice, should the
Plaintiff wish to pursue them via the appropriate legal route.
VI.

Conclusion
As set forth above, the Court finds that the Plaintiff’s motion to amend will be denied as

futile. Further, the Court finds that the complaint fails to state claims upon which relief can be
granted, and this action will be dismissed. However, this dismissal will be without prejudice to the
Plaintiff’s ability to pursue any remedies available to him by way of a petition for writ of habeas
corpus.
An appropriate order will be entered.
ENTER this 5th day of September 2017.

Aleta A. Trauger
United States District Judge

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