Rogers v. Anderson et al
Filing
14
ORDER DENYING MOTION FOR SPEEDY TRIAL (ECF No. 4), ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF No. 7), ORDER OF DISMISSAL, ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 4 7 . Signed by Judge James D. Todd on 2/13/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
FREDERICK B. ROGERS,
Plaintiff,
VS.
BLAKE ANDERSON, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
No. 14-1199-JDT-egb
ORDER DENYING MOTION FOR SPEEDY TRIAL
(ECF No. 4)
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
(ECF No. 7)
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Plaintiff Frederick B. Rogers, an inmate at the Madison County Criminal Justice
Complex in Jackson, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § l983,
accompanied by a motion seeking leave to proceed in forma pauperis. (ECF No. 3.) In an
order issued on August 18, 2014, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”),
28 U.S.C. §§ 1915(a)-(b). On October 10, October 20, and October 22, 2014, Plaintiff filed
amended complaints. The Clerk shall record the defendants as the City Court Judge Blake
Anderson, Assistant District Attorney Arron Chapman, and Public Defender April Knight.
On August 15, 2014, Plaintiff filed a motion for speedy trial. (ECF No. 4.) The motion
is DENIED as moot.
On September 9, 2014, Plaintiff filed a motion seeking the appointment of counsel.
(ECF No. 7.) Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to
represent any person unable to afford counsel.” However, “[t]he appointment of counsel in
a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he
plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”);
Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel
in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no
constitutional or . . . statutory right to counsel in federal civil cases . . . .”). Appointment of
counsel is “a privilege that is justified only by exceptional circumstances.” Lavado, 992 F.2d
at 606 (internal quotation marks & citation omitted). “In determining whether ‘exceptional
circumstances’ exist, courts have examined the type of case and the abilities of the plaintiff
to represent himself. This generally involves a determination of the complexity of the factual
and legal issues involved.” Id. at 606 (internal quotation marks & citations omitted).
Appointment of counsel is not appropriate when a pro se litigant’s claims are frivolous or
when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752 F.2d 254,
256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir. 2009)
(same). Plaintiff’s complaint is to be dismissed. The motion for appointment of counsel is
DENIED.
The complaint and amended complaints allege that Plaintiff appeared before Judge
2
Blake Anderson in Jackson’s City Court on July 1, 2014. He was represented by Public
Defender April Knight. Assistant District Attorney Arron Chapman prosecuted the case.
Plaintiff alleges that he asked for new counsel, but Judge Anderson denied his motion.
Therefore, he had to represent himself at his preliminary hearing. He was allegedly not
provided with any discovery, and his motion to suppress was denied. He was not given “a
proper chance” to present his case and was found guilty. Judge Anderson dismissed his
appeal without having a hearing. Plaintiff seeks the “overturnment” of his sentence and
monetary damages.
The Court is required to screen prisoner complaints and to dismiss any complaint, or
any portion thereof, if the complaint—
(1)
is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2)
such relief.
seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be
granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S.
662, 677-79, (2009), and in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are
applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “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, 129 S. Ct. at 1951)
3
(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.”).
“A complaint can be frivolous either factually or legally. See Neitzke [v. Williams],
490 U.S. [319,] 325 [(1989)]. Any complaint that is legally frivolous would ipso facto fail
to state a claim upon which relief can be granted. See id. at 328-29.” Hill, 630 F.3d at 470.
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and
1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for
relief. Statutes allowing a complaint to be dismissed as frivolous give “judges
not only the authority to dismiss a claim based on an indisputably meritless
legal theory, but also the unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose factual contentions are
clearly baseless.” Neitzke, 490 U.S. at 327 (interpreting 28 U.S.C. § 1915).
Unlike a dismissal for failure to state a claim, where a judge must accept all
factual allegations as true, Iqbal, 129 S. Ct. at 1949-50, a judge does not have
to accept “fantastic or delusional” factual allegations as true in prisoner
complaints that are reviewed for frivolousness. Neitzke, 490 U.S. at 327-28.
Id. at 471.
“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
(quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants and
prisoners are not exempt from the requirements of the Federal Rules of Civil Procedure. As
4
the Sixth Circuit has explained:
Before the recent onslaught of pro se prisoner suits, the Supreme Court
suggested that pro se complaints are to be held to a less stringent standard than
formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 92
S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). Neither that Court nor other
courts, however, have been willing to abrogate basic pleading essentials in pro
se suits. See, e.g., id. at 521, 92 S. Ct. at 596 (holding petitioner to standards
of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be
less stringent with pro se complaint does not require court to conjure up
unplead allegations), cert. denied, 464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d
3366 (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v.
Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se plaintiffs should plead with
requisite specificity so as to give defendants notice); Holsey v. Collins, 90
F.R.D. 122 (D. Md. 1981) (even pro se litigants must meet some minimum
standards).
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Payne v. Secretary 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); “Neither 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.”).
To state a claim under 42 U.S.C. § 1983,1 a plaintiff must allege two elements: (1) a
deprivation of rights secured by the “Constitution and laws” of the United States (2)
1
Section 1983 provides: Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute of the District of
Columbia.
5
committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970).
Courts have uniformly held that attorneys are not state actors who can be sued under
§ 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does
not act under color of state law when performing a lawyer’s traditional functions as counsel
to a defendant in a criminal proceeding.”); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (“A
private attorney who is retained to represent a criminal defendant is not acting under color
of state law, and therefore is not amendable to suit under 1983.”); Mulligan v. Schlachter,
389 F.2d 231, 233 (6th Cir. 1968) ( private attorney who is appointed by the court does not
act under color of state law); Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984) (per curiam)
(attorney appointed by federal court is not a federal officer who can be sued under Bivens).
Thus, Plaintiff fails to state a claim against his public defender, April Knight.
Assistant District Attorney Chapman is absolutely immune from any monetary
liability. Acts undertaken by a prosecutor in preparing for the initiation of judicial
proceedings or for trial and which occur in the course of his role as an advocate for the State
are entitled to the protections of absolute immunity. Imbler v. Pachtman, 424 U.S. 409
(1976); Burns v. Reed, 500 U.S. 478 (1991); Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993). Absolute prosecutorial immunity is not overcome by a showing that the prosecutor
acted wrongfully or maliciously. Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir.1989).
Any claims arising from Plaintiff's prosecution are barred by Heck v. Humphrey, in
which the Supreme Court held:
6
that, in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state prisoner seeks damages in a §
1983 suit, the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence;
if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated. But
if the district court determines that the plaintiff's action, even if successful, will
not demonstrate the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed, in the absence of some
other bar to the suit.
512 U.S. 477, 486-87 (1994)(footnotes omitted). See also Schilling v. White, 58 F.3d 1081,
1086 (6th Cir. 1995) (same) (footnotes omitted). Plaintiff has no cause of action under § 1983
if the claims in that action hinge on factual proof that would call into question the validity
of a state court order directing his confinement unless and until any prosecution is terminated
in his favor, his conviction is set aside, or the confinement is declared illegal. Heck, 512 U.S.
at 481-82; Schilling, 58 F.3d at 1086. Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(whenever the relief sought is release from prison, the only remedy is through a habeas
petition, not a § 1983 complaint).
Here, Heck applies to bar Plaintiff’s claims arising from his criminal prosecution and
conviction. Plaintiff has not had his conviction overturned on direct appeal. Plaintiff must
have the conviction overturned on direct appeal or via collateral attack before any claims can
accrue. As for overturning Plaintiff’s sentence, a claim which directly or indirectly
7
challenges the duration of imprisonment is also barred by Heck and, thus, cannot be brought
under 42 U.S.C. § 1983. See Milstead v. Bedford County Sheriff's Dept., 2014 WL 420395
(E.D. Tenn.).
The claims against City Judge Anderson must also be dismissed. Generally, a judge
is absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9–10
(1991) (“[I]t 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: (1) 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; and
(2) a judge is not immune for actions, though judicial in nature, taken in complete absence
of all jurisdiction. Id. at 12. Plaintiff's allegations clearly fail to implicate either of the
exceptions to judicial immunity.
The Court therefore DISMISSES the complaint in its entirety, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim on which relief may be
granted.
The Court must also consider whether Plaintiff should be allowed to appeal this
decision in forma pauperis, should he seek to do so. The United States Court of Appeals for
the Sixth Circuit requires that all district courts in the circuit determine, in all cases where
8
the appellant seeks to proceed in forma pauperis, whether the appeal would be frivolous.
Twenty-eight U.S.C. § 1915(a)(3) provides that “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.”
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438,
445 (1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith
is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It would
be inconsistent for a district court to determine that a complaint should be dismissed prior to
service on the defendants, but has sufficient merit to support an appeal in forma pauperis.
See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations
that lead the Court to dismiss this case for failure to state a claim also compel the conclusion
that an appeal would not be taken in good faith. It is therefore CERTIFIED, 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 may not proceed on appeal in forma pauperis. Leave to proceed on appeal
in forma pauperis is, therefore, DENIED.
If Plaintiff appeals the dismissal of this case, the Court is required to assess the $505
appellate filing fee. In McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), the
Sixth Circuit set out specific procedures for implementing the Prison Litigation Reform Act
of 1996 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). Therefore, Plaintiff is instructed that, if he
wishes to take advantage of the installment procedures for paying the appellate filing fee, he
must comply with the procedures set out in McGore and 28 U.S.C. § 1915(b).
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the
9
first dismissal of one of his cases as frivolous or for failure to state a claim. This “strike”
shall take effect on entry of judgment. See Coleman v. Tollefson, 733 F.3d 175, 177-78 (6th
Cir. 2013).
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?