Dalton v. Henely et al

Filing 6

ORDER TO MODIFY THE DOCKET, DENYING MOTION FOR A TRO OR PRELMINARY INJUNCTION,DISMISSING CASE, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE 2 . Signed by Judge James D. Todd on 1/21/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CHARLES W. DALTON,
Plaintiff,
VS.
SERGEANT HENELY, ET AL.,
Defendants.

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No. 14-1236-JDT-egb

ORDER TO MODIFY THE DOCKET,
DENYING MOTION FOR A TRO OR PRELMINARY INJUNCTION,
DISMISSING CASE,
CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On September 16, 2014, the pro se Plaintiff, Charles W. Dalton, Tennessee
Department of Correction (“TDOC”), who is currently incarcerated at the West Tennessee
State Penitentiary (“WTSP”) in Henning, Tennessee,1 filed a “Memorandum of Law in
Support of Motion for a TRO and Preliminary Injunction,” which the Clerk docketed as a
complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1), and an “Order to Show Cause for an
[sic] Preliminary Injunction or a Temporary Restraining Order,” which was docketed as a
motion for a temporary restraining order (ECF No. 2). Plaintiff’s filings address his previous
confinement at the Whiteville Correctional Facility (“WCF”) in Whiteville, Tennessee. After

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The Clerk is directed to modify the docket to reflect Plaintiff’s current address, which
was obtained from the TDOC Felony Offender Information website, https://apps.tn.gov/foil/.

Plaintiff filed the required documentation (ECF No. 4), the Court issued an order on
September 26, 2014, granting leave to proceed in forma pauperis and assessing the civil
filing fee pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b)
(ECF No. 5). The Clerk shall record the Defendants as Sergeant First Name Unknown
(“FNU”) Henely, Sergeant FNU Amus, Chief FNU Deathridge, Warden Cherry Lindamood,
Principal FNU Bell and Librarian FNU Gray.
Although Plaintiff has not filed an actual complaint, he has submitted his declaration
in support of the motion for a temporary restraining order or a preliminary injunction. (ECF
No. 1-1.) In that filing, Plaintiff requests access to an adequate law library. (Id. ¶ 1.) He
states that he “is being denied access to the Courts by not being able to file motions and
briefs.” (Id. ¶ 2.) Plaintiff “is working on a Ruling of a Writ Error Corrrum [sic] Nobius
[sic] in the Criminal Court of Lincoln County T.N. and [] will not be able to respond properly
without an adequate law library [sic].” (Id. ¶ 3.) In his legal memorandum, Plaintiff states
that he “is being denied the access to adequate law library as well as being denied acess [sic]
to research and prepare legal documents, such as Notice of Appeal and brief for the T.N.
Criminal Court of Appeals[.]” (ECF No. 1 at 1.) Plaintiff’s proposed “Order to Show Cause
For A[] Preliminary Injunction Or A Temporary Restraining Order” indicates that he is in
protective custody. (ECF No. 2 at 2.) He requests that protective custody inmates be
provided access to an adequate law library and proper legal advisors. (Id.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or
any portion thereof, if the complaint—
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(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 Atlantic 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). “[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.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally

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frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id. (citing
Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a claim, where a judge
must accept all factual allegations as true, a judge does not have to accept
“fantastic or delusional” factual allegations as true in prisoner complaints that
are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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, 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,
612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to
comply with “unique pleading requirements” and stating “a court cannot ‘create a claim
which [a plaintiff] has not spelled out in his pleading’” (quoting Clark v. Nat’l Travelers Life
Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); 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

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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 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.”).
To state a claim under 42 U.S.C. § 1983,2 a plaintiff must allege two elements: (1)
a deprivation of rights secured by the “Constitution and laws” of the United States (2)
committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970).
Rule 3 of the Federal Rules of Civil Procedure provides that “[a] civil action is
commenced by filing a complaint with the court.” A complaint must contain
(1)

a short and plain statement of the grounds for the court’s jurisdiction .
. .;

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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, except that in any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. 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.

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(2)

a short and plain statement of the claim showing that the pleader is
entitled to relief; and

(3)

a demand for the relief sought, which may include relief in the
alternative or different types of relief.

Fed. R. Civ. P. 8(a)(1)-(3). Although Plaintiff’s submission might satisfy the minimal
requirements of Rule 8(a) by invoking 42 U.S.C. § 1983 (ECF No. 1 at 1) and requesting
access to an adequate law library, the minimal factual allegations in Plaintiff’s pleadings are
insufficient to state a plausible claim for denial of his First Amendment right of access to the
courts. No factual allegations are provided about any of the named Defendants. When a
complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
In addition, the proposed order Plaintiff has submitted (ECF No. 2) in accordance with
Local Rule 7.2(a)(1)(A) does not sufficiently describe the injunctive relief he seeks. The
Court is unable to overlook this requirement because of the specificity requirement of Rule
65(d) of the Federal Rules of Civil Procedure, which provides that
[e]very order granting an injunction or restraining order must:
(A)

state the reasons why it issued;

(B)

state its terms specifically; and

(C)

describe in reasonable detail—and not by referring to the complaint or
other document—the act or acts restrained or required.

Fed. R. Civ. P. 65(d)(1)(A)-(C). Plaintiff’s proposed order describes the relief sought only
in general and conclusory terms. For example, the proposed order would require Defendants

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to “stop denying protective custody inmates” access to the courts and to an adequate law
library and would require Defendants to “provide protective custody inmates proper legal
advisors.” (ECF No. 2 at 2.)
Furthermore, “Article III of the Constitution limits the judicial power to the
adjudication of ‘Cases’ or ‘Controversies.’” MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 137 (2007) (citing U.S. Const., art. III, § 2). This is “a cradle-to-grave requirement that
must be met in order to file a claim in federal court and that must be met in order to keep it
there.” Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011).
“[A] federal court has no authority to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue
in the case before it.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)
(internal quotation marks omitted); see also Coalition for Gov’t Procurement v. Fed. Prison
Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) (“Under the ‘case or controversy’
requirement, we lack authority to issue a decision that does not affect the rights of the
litigants.”); Sw. Williamson Cnty. Cmty. Ass’n, Inc. v. Slater, 243 F.3d 270, 276 (6th Cir.
2001) (same). The mootness question turns on whether a federal court can afford a litigant
any “effectual relief.” Coalition for Gov’t Procurement, 365 F.3d at 458.
Because Plaintiff is no longer incarcerated at the WCF, his claims concerning the
sufficiency of access to the courts at that facility are now moot. Moore v. Curtis, 68 F.
App’x 561, 562 (6th Cir. 2003) (claims for declaratory and injunctive relief against prison
staff moot when inmate transferred to another facility); Kensu v. Haigh, 87 F.3d 172, 175
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(6th Cir. 1996) (same); Tramber v. Pleasant, No. 4:12CV-P31-M, 2012 WL 4594339, at *5
(W.D. Ky. Oct. 2, 2012) (inmate’s claim for a transfer and medical care moot when he was
transferred to another facility).
Therefore, the Court DISMISSES Plaintiff’s complaint as moot.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal
by Plaintiff in this case would be taken in good faith. The good faith standard is an objective
one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal
is taken in good faith is whether the litigant seeks appellate review of any issue that is not
frivolous. Id. The same considerations that lead the Court to dismiss this case as moot also
compel the conclusion that an appeal would not be taken in good faith.
Therefore, it is 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.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the
installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601,
610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the
PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the 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 § 1915(a)(2) by filing an updated in forma
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pauperis affidavit and a current, certified copy of his inmate trust account for the six months
immediately preceding the filing of the notice of appeal.3
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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Despite the deficiencies in Plaintiff’s filing, the Court has not assessed a “strike” under
28 U.S.C. § 1915(g) because it is possible that Plaintiff could have filed an amended complaint
that cured the defects identified in this order if the complaint were not moot.

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