Thigpen v. Kane et al

Filing 8

MEMORANDUM 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.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JERRY ALAN THIGPEN

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Plaintiff,
v.
BRODY KANE, et al.,
Defendants.

No. 3:17-cv-00919
Judge Trauger

MEMORANDUM
Jerry Alan Thigpen, a resident of Hartsville, Tennessee, brings this pro se, in forma pauperis
action against forty-four (44) named defendants, citing 42 U.S.C. § 1983. (Docket No. 1).
I.

Required Screening of In Forma Pauperis Complaint
Because the plaintiff is proceeding as a pauper in this action, the court must conduct an initial

review of the complaint under 28 U.S.C. § 1915(e)(2) and dismiss it or any portion of it that is
frivolous or malicious, fails to state a claim for which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 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 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
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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); 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”); cf. Pliler v. Ford, 542 U.S. 225,
231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”);
Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir.2011) (“[W]e decline to affirmatively
require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would
that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into
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advocates for a particular party. While courts are properly charged with protecting the rights of all
who come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
II.

Section 1983 Standard
The plaintiff brings his complaint pursuant to 42 U.S.C. § 1983 “and other applicable United

States Code” provisions. (Docket No. 1 at 2). 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.
III.

Alleged Facts
According to the complaint, on June 6, 2016, defendant Thomas Dewayne Byrd, tax assessor

for Trousdale County, assaulted the plaintiff at a Trousdale County Board of Equalization meeting.
The plaintiff was injured and received medical care for his injuries. The plaintiff’s tripod and
camera were damaged during the assault. The plaintiff subsequently was indicted by a grand jury
in connection with the incident. (Docket No. 1 at p. 6). The plaintiff believes that his federal
constitutional right to due process was violated because members of the grand jury represented
themselves to be residents of Trousdale County, Tennessee, “despite proof to the contrary known
to exist by some of the prior named Accused.” (Id. at p. 5).
The complaint alleges that many of the defendants are engaged in “ongoing criminal conduct
. . . .” (Docket No. 1 at p. 5). The complaint describes the criminal conduct as follows:
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The Criminal acts have taken place in Trousdale County Tennessee,
the smallest county in the State, which the de facto cartel, known as
Hartsville/Trousdale County Government, in charge circumvented
Tennessee’s Legislative desires to divide for its absorption by two
larger adjacent counties, Sumner and Wilson, by incorporation, via
Voter Fraud, an “experimental” Charter form of Metro Government.
This scheme had the affect [sic] of chilling prior Legislative desires
due to the resulting entanglements of Municipal Bonds and many
other financial instruments, the cost of doing so equitably, [sic] was
estimated to be exorbitant.
(Id. at pp. 2-6).
IV.

Analysis
A.

Claims against jurors

First, the complaint names fifteen grand jurors as well as the jury foreperson as defendants
to this action. (Docket No. 1 at 2). However, “jurors acting within the scope of their duties” enjoy
absolute immunity from suit. Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009). Therefore, the
plaintiff’s claims against the fifteen grand jurors and the jury foreperson must be dismissed for
failure to state claims upon which relief can be granted.
To the extent that the plaintiff is challenging the validity of his indictment in a state criminal
action based on the composition of the indicting grand jury, any such claims sound in habeas corpus
and are not appropriately brought in a § 1983 action. Heck v. Humphrey, 512 U.S. 477, 481
(1994)(citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973))(the law is well established that
“habeas corpus is the exclusive remedy for a prisoner who challenges the fact or duration of his
confinement . . . even though such a claim may come within the literal terms of § 1983.”).
B.

Abstention

In the complaint, the plaintiff asks the court for the “Dismissal of all Warrant and Criminal
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Charges against the Accuser” and an “immediate Stay on those proceedings . . . .” (Docket No. 1
at p. 6). The law is well-settled that a federal court should not interfere with pending state court
criminal proceedings, absent the threat of “great and immediate” irreparable injury. Younger v.
Harris, 401 U.S. 37, 46 (1971). Younger abstention applies where the federal plaintiff seeks
injunctive or declaratory judgment relief. Carroll v. City of Mount Clemens, 139 F.3d 1072, 1074
(6th Cir. 1998).
In Younger, the Supreme Court held that, absent extraordinary circumstances, federal equity
jurisdiction may not be used to enjoin pending state prosecutions. The Younger abstention doctrine
is based on the principle that the states have a special interest in enforcing their own laws in their
own courts. Id. at 44. The rule is “designed to permit state courts to try state cases free from
interference by federal courts, particularly where the party to the federal case may fully litigate his
claim before the state court.” Zalman v. Armstrong, 802 F.2d 199, 205 (6th Cir.1986) (internal
quotations omitted). Abstention in favor of state court proceedings is proper where there exists: (1)
an ongoing state judicial proceeding; (2) an important state interest; and (3) an adequate opportunity
in the state judicial proceedings to raise constitutional challenges. Middlesex County Ethics
Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Fieger v. Thomas, 74 F.3d 740, 744
(6th Cir. 1996).
The three factors that support Younger abstention are present in this case. First, one or more
state criminal prosecutions of the plaintiff appear to be underway. (Docket No. 1 at p. 6). Second,
there can be no doubt that state criminal proceedings implicate important state interests. See, e.g.,
Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir. 2000). Third, while the complaint expresses the
plaintiff’s dissatisfaction with the state court and his suspicions that state actors are violating his due
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process rights, the complaint does not allege that the state court has refused or would refuse to
consider the plaintiff’s constitutional claims; thus, presumably the state court proceedings provide
an adequate forum in which the plaintiff can raise any constitutional challenges. If the plaintiff raises
his constitutional challenges in state court and the trial court denies or otherwise fails to consider his
constitutional claims, the plaintiff may exercise his right to an appeal under Tennessee law. The
plaintiff also may oblige himself of state post-conviction proceedings in the event he is convicted
of the charged offense(s).
There are exceptions to the Younger doctrine: (1) “the state proceeding is motivated by a
desire to harass or is conducted in bad faith,” Huffman v. Pursue, Ltd., 420 U.S. 592, 611; (2) “the
challenged statute is flagrantly and patently violative of express constitutional prohibitions,” Moore
v. Sims, 442 U.S. 415, 424 (1979)(quoting Huffman, 420 U.S. at 611); or, (3) there is “an
extraordinarily pressing need for immediate federal equitable relief.” Kugler v. Helfant, 421 U.S.
117, 125 (1975). These exceptions have been interpreted narrowly. Zalman v. Armstrong, 802 F.2d
199, 205 (6th Cir. 1986). In order to overcome the bar of Younger abstention, a plaintiff must do
more than set forth mere allegations of bad faith or harassment. See Amanatullah v. Colorado Board
of Medical Examiners, 187 F.3d 1160, 1165 (10th Cir.1 999) (citing Phelps v. Hamilton, 122 F.3d
885, 889 (10th Cir.1997)).

The burden on a plaintiff is high, and the allegations of the instant

complaint do not suggest that any exception to the Younger doctrine is warranted in this case at this
time.
C.

Allegations of criminal conduct

The complaint petitions the court to initiate federal criminal prosecutions of the defendants.
(Docket No. 1 at pp. 3-6). However, “[a]uthority to initiate a criminal complaint rests exclusively
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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 alleged criminal activity.
D.

Civil conspiracy claims

According to the complaint, the incident on June 6, 2016, and resulting arrest and indictment
of the plaintiff was part of a larger, more far-reaching conspiracy between a number of defendants,
including but not limited to a judge, court staff, district attorneys, the mayor, and the tax assessor.
(Docket No. 1 at p. 5). The Sixth Circuit has defined a civil conspiracy under 42 U.S.C § 1983 as
follows:
A civil conspiracy is an agreement between two or more persons to
injure another by unlawful action. Express agreement among all the
conspirators is not necessary to find the existence of a civil
conspiracy. Each conspirator need not know all of the details of the
illegal plan or all of the participants involved. All that must be shown
is that there is a single plan, that the alleged co-conspirator shared in
the general conspiratorial objective, and that an overt act was
committed in furtherance of the conspiracy that caused injury to the
complainant.
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Conspiracy claims must be pled with a degree
of specificity. Hamilton v. City of Romulus, 409 Fed. Appx. 826, 835-36 (6th Cir. 2010). Vague and
conclusory allegations unsupported by material facts are insufficient, although circumstantial
evidence of an agreement among all conspirators may provide adequate proof. Id.
Having reviewed the complaint, the court finds that the plaintiff’s allegations of a conspiracy
between the defendants do not survive the required screening. 28 U.S.C. § 1915(e)(2). As to the
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existence of a conspiracy to assault, arrest, or indict the plaintiff, the complaint’s allegations are
conclusory; no specificity is provided and no evidence of an agreement between all conspirators is
referenced. Thus, the plaintiff’s civil conspiracy claims as to all defendants will be dismissed.
E.

State law claims

It is unclear whether the plaintiff intended to assert state law claims against any of the
defendants; however, presuming that the plaintiff so intended, 28 U.S.C. § 1367(a) provides that:
[I]n any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy . . . .
The district court “may decline to exercise supplemental jurisdiction over a claim under subsection
(a) if . . . the district court has dismissed all claims over which it ha[d] original jurisdiction . . . .”
Id. at § (c)(3).
Having dismissed the plaintiff’s federal claims, the court declines to exercise supplemental
jurisdiction to hear any state law claims set forth in the complaint. As such, any state law claims
asserted in the complaint will be dismissed without prejudice to be filed, if the plaintiff so chooses,
in a Tennessee state court.1
V.

Conclusion
As set forth above, the court finds 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.

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Accordingly, the complaint will be

The court makes no representations regarding any applicable statute of limitations for any state law claim.

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dismissed. This dismissal is without prejudice to the plaintiff’s ability to pursue any remedies
available to him by way of a petition for writ of habeas corpus. 28 U.S.C. § 1915(e)(2). Further,
the court declines to exercise supplemental jurisdiction over any state law claims asserted in the pro
se complaint. The dismissal of this action therefore will be without prejudice to the plaintiff’s ability
to pursue any remedies available to him in state court.
An appropriate order will be entered.
ENTER this 5th day of September 2017.

Aleta A. Trauger
United States District Judge

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