Mosley v. Doe et al

Filing 4

MEMORANDUM AND ORDER: Application to proceed as a pauper (Doc. No. 2 ) is GRANTED. The plaintiff is nonetheless assessed the $350.00 civil filing fee. This action is DISMISSED for failure to state a claim for which relief can be granted. Signed by District Judge Aleta A. Trauger on 5/21/18. (xc:Pro se party and Davidson County Sheriff Custodian by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) Modified on 5/21/2018 (afs).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BOBBY JAMES MOSLEY, JR.,
Plaintiff,
v.
JANE DOE, et al.,
Defendants

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NO. 3:18-cv-00411
JUDGE TRAUGER

MEMORANDUM AND ORDER

Plaintiff Bobby James Mosley, Jr., a pretrial detainee in the custody of the Davidson
County Sheriff’s Office, has filed a pro se complaint (Doc. No. 1) for violation of his civil rights
pursuant to 42 U.S.C. § 1983. Before the court is the plaintiff’s application to proceed without
prepaying fees or costs. (Doc. No. 2.) In addition, 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, and 42 U.S.C. § 1997e.
A. Application to Proceed as a Pauper
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner
bringing a civil action may be permitted to file suit without prepaying the filing fee required by
28 U.S.C. § 1914(a). Because it is apparent from the plaintiff’s submission that he lacks the
funds to pay the entire filing fee in advance, his application to proceed as a pauper (Doc. No. 2)
is GRANTED.
Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), the plaintiff is nonetheless assessed the
$350.00 civil filing fee. The Davidson County Sheriff, as custodian of the petitioner’s trust

account, is DIRECTED to submit to the clerk of court, as an initial payment, the greater of: (a)
20% of the average monthly deposits to the plaintiff’s credit at the jail; or (b) 20% of the average
monthly balance to the plaintiff’s credit for the six-month period immediately preceding the
filing of the complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of
the plaintiff’s preceding monthly income (or income credited to Petitioner for the preceding
month), but only when the balance in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2).
Payments shall continue until the $350.00 filing fee has been paid in full to the clerk of court. 28
U.S.C. § 1915(b)(3).
The clerk of court MUST send a copy of this order to the Davidson County Sheriff to
ensure payment of the filing fee.

If the plaintiff is transferred from his present place of

confinement, the Sheriff must ensure that a copy of this order follows the plaintiff to his new
place of confinement, for continued compliance herewith. All payments made pursuant to this
order must be submitted to the clerk of court for the United States District Court for the Middle
District of Tennessee, 801 Broadway, Nashville, TN 37203.
B. Initial Review of the Complaint
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. In reviewing the complaint to
determine whether it states a plausible claim, “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)). A pro se pleading must be liberally
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construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under
42 U.S.C. § 1983. Section 1983 confers a private federal right of action against any person who,
acting under color of state law, deprives an individual of any right, privilege or immunity
secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583
(6th Cir. 2012). Thus, to state a § 1983 claim, a plaintiff must allege two elements: (1) a
deprivation of rights secured by the Constitution and 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) (citations omitted); 42 U.S.C. § 1983.
The complaint alleges that the plaintiff has been “illegally confined” and “falsely
imprisoned” since July 22, 2015, following his arrest and indictments for attempted first degree
murder and aggravated assault. (Doc. No. 1 at 7, 8, 18, 19.) He alleges that his due process
rights have been violated, and sues his prosecutors, Jane Doe and Danielle Nellis, his court
appointed attorneys, Kevin Kelly and Kyle Parks, and criminal court Judge J. Wyatt. (Doc. No. 1
at 2, 7.) He seeks more than $40 million in total damages and immediate release from custody.
(Doc. No. 1 at 6, 9.) Specifically, he asks the court to “issue an injunction order the state of
Tennessee or the Administration at MCC to: Release the Plaintiff from MCC or the custody of
DCSO and place him back in society with restoration of all rights and privileges.” (Doc. No. 1 at
6.)
The plaintiff’s complaint fails because each of the defendants named is immune from suit
under § 1983. Judge Wyatt is absolutely immune from any suit for damages under § 1983 for
actions taken in his judicial capacity and with proper jurisdiction, Mireles v. Waco, 502 U.S. 9,
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10–11 (1991), and 42 U.S.C. § 1983 expressly provides that, except for circumstances not
present in this case, “injunctive relief shall not be granted” “against a judicial officer for an act or
omission taken in such officer’s judicial capacity.” Similarly, prosecutors Doe and Nellis are
absolutely immune from claims against them individually for actions taken within the scope of
their prosecutorial duties, see Imbler v. Pachtman, 424 U.S. 409, 427 (1976), and are shielded by
Eleventh Amendment immunity from any claims for damages against them in their official
capacities. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (66). And finally, the plaintiff’s
court-appointed attorneys do not act under color of state law when providing legal representation
to their clients, and are therefore not proper defendants to a § 1983 claim. Polk County v.
Dodson, 454 U.S. 312, 325 (1981); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968).
Further, the immediate release from custody that the plaintiff demands is not available
under § 1983:
[A] § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or
length of his custody.
...
[W]hen a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 499, 500 (1973); see also Heck v. Humphrey, 512 U.S. 477,
481 (1994) (“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or speedier release”) (citing Preiser).

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Accordingly, this action is DISMISSED for failure to state a claim for which relief can
be granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Any appeal of this order would not be in
good faith as required by 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
ENTER this 21st day of May 2018.

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ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

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