Forrest v. Pickens et al

Filing 12

ORDER DISMISSING CLAIMS, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 9/9/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JUSTIN R. FORREST,
Plaintiff,
VS.
JODY S. PICKENS, et al.,
Defendants.

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No. 14-1283-JDT-egb

ORDER DISMISSING CLAIMS,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On October 1, 2014, Plaintiff Justin R. Forrest (“Forrest”) who was, at the time of filing
the complaint, incarcerated at the Northeast Correctional Complex in Mountain City, Tennessee,
filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2). In an order issued October 16, 2014, Chief United States District Judge
Thomas A. Varlan ordered the case transferred to the United States District Court for the
Western District of Tennessee, 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). (ECF No. 5.) On December 19, 2014, Forrest notified the Clerk that he was no
longer incarcerated and now resides in Jackson, Tennessee. (ECF No. 9.) The Clerk shall record
the defendants as Jody S. Pickens, the prosecuting attorney at Forrest’s criminal trial, and Susan
D. Korsnes, Forrest’s court-appointed public defender.
I. THE COMPLAINT

Forrest’s filing alleges that his “Sixth Amendment right to effective counsel was violated,
along with his Fourteenth Amendment right to due process under the Constitution.” (Compl. 10,
ECF No. 2.) The Court summarizes the allegations as follows. Forrest wanted to go to trial;
however, he accepted a plea agreement because Defendant Korsnes, “. . . was unwilling to work
against the prosecuting attorney.” (Id.) Forrest contends that the plea agreement allowed him to
serve concurrent sentences for the state and federal charges; however, he is, instead, being forced
to serve consecutive sentences. (Id. at 11.) The complaint further states that Defendant Pickens
misled Forrest into signing the plea agreement and allowed him to believe the sentences would
be concurrent rather than consecutive. (Id. at 11-12.) Forrest alleges that Defendant Korsnes
failed in her duty to investigate the plea agreement before encouraging Forrest to sign the plea.
(Id. at 14.) Forrest concludes that Defendants worked together against his interests. (Id. at 15.)
Forrest requests $3.5 million from each Defendant as compensatory and punitive damages. (Id.
at 24.)
II. ANALYSIS
A.

Screening and Standard
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)

seeks monetary relief from a defendant who is immune from such

relief.

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 court applies standards under Federal Rule of Civil Procedure 12(b)(6), as stated in
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Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-57 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all wellpleaded 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) (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. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted.” Hill, 630 F.3d
at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29 (1989)).
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, 109 S. Ct. 1827 (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, 109 S. Ct. 1827.
Id. at 471.

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“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. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 2011 WL
285251, at *5 (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)) (alteration in original); 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 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.”).
Forrest filed his complaint on the court-supplied form for actions under 42 U.S.C. § 1983.
(ECF No. 2.) 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
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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.
To state a claim under 42 U.S.C. § 1983, 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).
B.

Defendant Korsnes, Public Defender
Forrest has no claim against his public defender, Defendant Korsnes.

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).
C.

Defendant Pickens, Assistant District Attorney
Defendant Pickens has absolutely immunity 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
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of absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed.2d 128 (1976);
Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 114 L. Ed.2d 547 (1991); Buckley v. Fitzsimmons,
509 U.S. 259, 273, 113 S. Ct. 2606, 2615, 125 L. Ed.2d 209 (1993). Absolute immunity also
applies to professional evaluation of evidence assembled by the police. Buckley, 509 U.S. at 273,
113 S. Ct. at 2651.
III. STANDARD FOR LEAVE TO AMEND
The Sixth Circuit has held that a district court may allow a prisoner to amend his
complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013); see also Brown v. R.I., No. 12-1403, 2013 WL 646489, at *1 (1st Cir. Feb.
22, 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some
form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”).
Leave to amend is not required where a deficiency cannot be cured. Brown, 2013 WL 646489, at
*1; Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of
course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically
must be reversed. If it is crystal clear that the plaintiff cannot prevail and that amending the
complaint would be futile, then a sua sponte dismissal may stand.”); Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints
subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would
be inequitable or futile”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree with
the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by
amendment comports with due process and does not infringe the right of access to the courts.”).
IV. APPEAL ISSUES

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Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Forrest 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. 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.
V. CONCLUSION
The Court DISMISSES Forrest’s complaint for failure to state a claim on which relief can
be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is
DENIED because the deficiencies in Forrest’s complaint cannot be cured.

It is also

CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Forrest would
not be taken in good faith. Leave to appeal in forma pauperis is DENIED pursuant to 28 U.S.C.
§ 1915(g).
The Court must also address the assessment of the $505 appellate filing fee if Forrest
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, 716 F.3d at 951. McGore sets
out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, Forrest
is instructed that if he wishes to take advantage of the installment procedures for paying the

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appellate filing fee, he must comply with the procedures set out in McGore and § 1915(a)(2) by
filing an updated in forma 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.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Forrest, this is the
second dismissal of one of his cases as frivolous or for failure to state a claim.1 This “strike”
shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64
(2015).
The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.
s/James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

See Forrest v. Ray, et al., No. 10-cv-00495-TAV-ccs (E.D. Tenn.), which was dismissed
for failure to state a claim on January 4, 2011.
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