Hibbard v. Montgomery County et al

Filing 4

MEMORANDUM OPINION OF THE COURT AND ORDER Assessing Filing Fee $350 for Harold G. Hibbard. In the absence of an actionable claim, this action is hereby DISMISSED. The Clerk is directed to send a copy of this Order to the Sheriff of Stewart County to ensure that the custodian of Plaintiff's inmate trust account complies with that portion of the Prison Litigation Reform Act relating to the payment of the filing fee. Entry of this order shall constitute the judgment in this action. Signed by Chief Judge Waverly D. Crenshaw, Jr on 12/20/17. (xc:Pro se party by regular mail. ) (Sheriff of Stewart County Detention Center sent copy of the order 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
HAROLD G. HIBBARD,
Plaintiff,
v.
MONTGOMERY COUNTY, et al.
Defendants.

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NO. 3:17-cv-01541
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION AND ORDER

Harold Hibbard is an inmate at the Stewart County Detention Center in Dover, Tennessee.
He has filed pro se a prisoner Complaint (Doc. No. 1) under 42 U.S.C. § 1983 and an Application
to proceed in forma pauperis (Doc. No. 2).
It appears from the Application that the Plaintiff lacks sufficient financial resources from
which to pay the fee required to file the Complaint. Accordingly, Plaintiff’s Application is
GRANTED. The Clerk will file the Complaint in forma pauperis. 28 U.S.C. § 1915(a).
Plaintiff is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. §
1915(b)(1)(A) and (B), the custodian of the Plaintiff's inmate trust account at the institution where
he now resides is directed to submit to the Clerk of Court, as an initial partial payment, whichever
is greater of:
(a) twenty percent (20%) of the average monthly deposits to the Plaintiff's inmate trust
account; or
(b) twenty percent (20%) of the average monthly balance in the Plaintiff's inmate trust

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account for the prior six (6) months.
Thereafter, the custodian shall submit twenty percent (20%) of the Plaintiff's preceding
monthly income (or income credited to the Plaintiff's trust account for the preceding month), but
only when such monthly income exceeds ten dollars ($10.00), until the full filing fee of three
hundred fifty dollars ($350.00) as authorized under 28 U.S.C. § 1914(a) has been paid to the Clerk
of Court. 28 U.S.C. § 1915(b)(2).
The Plaintiff brings this action against Montgomery County, John Fuson, Sheriff of
Montgomery County, and William Goodman, a Circuit Court Judge in Montgomery County, seeking
injunctive relief and damages.
In September, 2017, the Plaintiff was involved in an automobile accident in Montgomery
County. (Doc. No. 1 at 5.) The Plaintiff blames the accident on his “accelerator getting stuck at a
high rate of speed”, causing him to lose control of his vehicle. (Id.) He was “t-boned” by a truck.
(Id.) When Plaintiff’s vehicle came to a stop, he managed to exit the vehicle and found himself
wandering in a field of tall grass. (Id at 6.) He was dazed and confused. (Id.)
As the Plaintiff made his way back to the road, a police officer ordered him to stop. (Id.) The
officer handcuffed the Plaintiff and placed him in the back of his cruiser where he waited for a short
while. (Id.) When an ambulance arrived on the scene, the Plaintiff was moved from the police
cruiser to the ambulance. (Id at 7.) Paramedics used something resembling smelling salts to bring
the Plaintiff back to consciousness, but did so for too long, interfering with his ability to breathe.
(Id.) They also took his blood pressure and listened to his heart. (Id.)
The Plaintiff was transported to a hospital. When he arrived there, a physician stitched up
a wound to his left arm but did not prescribe any medication for pain. (Id.) The Plaintiff states that

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“I believe that the Montgomery County EMS and Police Department were not taking actions of a
professional. I feel they were using cruel and unusual punishment.” (Id.)
Pro se pleadings are subject to liberal construction. Haines v. Kerner, 404 U.S. 519 (1972).
Nevertheless, liberal construction does not require the Court to create a claim that the Plaintiff has
not spelled out in his Complaint. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A Plaintiff is
required to plead more than bare legal conclusions. Lillard v. Shelby County Board of Education,
76 F.3d 716, 726 (6th Cir. 1996). Thus, a pro se litigant must meet the basic pleading requirements
for a Complaint in order to state a cognizable claim for relief. Wells. Plaintiff must identify the right
or privilege that was violated and the role that each Defendant played in the alleged violation. Dunn
v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982).
To avoid dismissal, a Complaint must contain sufficient factual matter when, accepted as
true, states a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim has facial plausibility when the Plaintiff pleads factual content that allows
the Court to draw the reasonable inference that the Defendants are liable for alleged misconduct.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In this regard, the Plaintiff does not mention any of the Defendants in his Statement of Facts
(Doc. No. 1 at 5). Thus, he has failed to allege a claim against them that is plausible on its face. As
a consequence, the Court finds that the Plaintiff has failed to state a claim upon which relief can
granted. Jackson v. Nix, 2007 WL 2317390 at 2 (M.D. Tenn., Aug. 8, 2007); see also White v.
Tennessee, 2014 WL 3908203 at 2 (E.D. Tenn., Aug. 11, 2014) (plaintiff alleged no facts, much less
sufficient facts, against defendants named in the caption but not mentioned in the body of the
complaint); Munger v. Deutsche Bank, 2011 WL 2930907 at 9 (N.D. Ohio, July 18, 2011).

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In the absence of an actionable claim, this action is hereby DISMISSED. 28 U.S.C. §
1915(e)(2). An appeal of the judgment rendered herein would not be taken in good faith. Coppedge
v. United States, 369 U.S. 438, 445-446 (1962). Therefore, the Plaintiff is NOT certified to pursue
an appeal of this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3).
Nevertheless, should the Plaintiff decide to file a notice of appeal, he must either pay the
Clerk of Court the full appellate filing fee of five hundred five dollars ($505.00) or submit a new
Application to proceed in forma pauperis with a certified copy of his inmate trust account statement
for the previous six month period. 28 U.S.C. § 1915(a)(1); McGore v. Wrigglesworth, 114 F.3d 601,
609 (6th Cir. 1997), abrogated on other grounds, LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir.
2013).1
The Clerk is directed to send a copy of this Order to the Sheriff of Stewart County to ensure
that the custodian of Plaintiff's inmate trust account complies with that portion of the Prison
Litigation Reform Act relating to the payment of the filing fee.
Entry of this order shall constitute the judgment in this action.
IT IS SO ORDERED.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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In a departure from former practice, an individual or prisoner granted pauper status
before the district court is no longer automatically entitled to pauper status on appeal. McGore,
at 610.
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