Douglas v. Schreiber et al

Filing 6

ORDER TO MODIFY THE DOCKET, DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF FILING RESTRICTIONS UNDER 28 U.S.C. § 1915(g). Signed by Judge James D. Todd on 4/24/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JEFFERY G. DOUGLAS,
Plaintiff,

VS.

F.S., ET AL.,
Defendants.

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No. 15-1046-JDT-egb

ORDER TO MODIFY THE DOCKET, DISMISSING CASE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
NOTIFYING PLAINTIFF OF FILING RESTRICTIONS UNDER 28 U.S.C. § 1915(g)

On March 2, 2015, the Plaintiff, Jeffery G. Douglas, Tennessee Department of Correction
prisoner number 467106, an inmate at the Northwest Correctional Complex in Tiptonville,
Tennessee, filed a pro se civil complaint, titled “Writ of Conspiracy,” accompanied by a motion
seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) In an order issued on March 3,
2015, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant
to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk
shall record the Defendants as F.S.,1 Jennifer Plunk, Ralph Turner, Gregory D. Gookin, and Danielle
Jones. On April 6, 2015, Plaintiff filed a document, titled “Additional Pleadings to Writ of
Conspiracy,” that the Court construes as an amendment to his complaint. (ECF No. 5.)

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Because F.S. was the victim of a sexual assault and was a juvenile when the events at
issue occurred, she will be referred to only by her initials. The Clerk is directed to MODIFY the
docket to remove her full name.

By way of background, this action arises out of Plaintiff’s convictions for rape and sexual
battery of a thirteen-year-old girl, which were obtained in the Circuit Court for Madison County,
Tennessee. Douglas was sentenced to concurrent terms of imprisonment of ten years for the rape
and two years for the sexual battery. The convictions were affirmed on direct appeal. State v.
Douglas, No. W2010-00986-CCA-R3-CD, 2011 WL 915052 (Tenn. Crim. App. Mar. 16, 2011),
perm. app. denied (Tenn. May 25, 2011). The denial of post-conviction relief was affirmed by the
Tennessee Court of Criminal Appeals. Douglas v. State, No. W2012-00012-CCA-R3-PC, 2013 WL
1557367 (Tenn. Crim. App. Apr. 9, 2013). Douglas has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, which is pending in this district. See Douglas v. Steward, No. 1:13cv-01129-JDB-egb (W.D. Tenn. filed May 6, 2013). The Defendants in the present suit are the
victim (F.S.), the victim’s mother (Plunk), the victim’s mother’s boyfriend (Turner), defense counsel
(Gookin) and the police investigator (Jones).
This is not the first lawsuit Plaintiff has filed against these parties arising from his criminal
prosecution. On July 21, 2011, Douglas filed a federal lawsuit in this district against Plunk, F.S. and
Turner under 42 U.S.C. § 1983. Douglas v. Plunk, No. 1:11-cv-01219-JDT-egb (W.D. Tenn.).2 The
Court issued an order on July 5, 2012, that, inter alia, dismissed Plaintiff’s complaint for failure to
state a claim and imposed a first “strike” under 28 U.S.C. § 1915(g). Id. (ECF No. 9). The Court
reasoned that “[a] witness in a criminal trial is absolutely immune under 42 U.S.C. § 1983 for claims
arising from the witness’ testimony.” Id. at 4. Douglas did not appeal that dismissal.

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Attached to the complaint in case number 11-1219 was a copy of a complaint Douglas
had filed in the Circuit Court of Madison County, Tennessee, against the same parties. Id. (ECF
No. 1-1, Douglas v. Turner, No. C-11-96 (Madison Cnty. Circ. Ct. filed Apr. 5, 2011)).
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On November 2, 2012, Plaintiff filed a second action in the Madison County Circuit Court
against the defendants named in the present suit and other parties. Defendant Jones subsequently
removed the case to federal court. Douglas v. Jones, No. 1:12-cv-01276-JDB-egb (W.D. Tenn.
removed Nov. 30, 2012). In an order issued on September 3, 2013, U.S. District Judge J. Daniel
Breen remanded the case to state court for want of subject-matter jurisdiction. Id. (Order
Remanding Case, ECF No. 125).
In his most recent complaint, titled “Writ of Conspiracy,” Plaintiff alleges that, on October
19, 2013, he signed an affidavit of complaint charging F.S., Plunk and Turner with extortion under
Tennessee law and seeking a warrant for their arrest. (ECF No. 1 at 2; ECF No. 1-1.) Jackson
Police Captain Tyreece Miller wrote to Plaintiff on October 24, 2013, that “I will treat this complaint
as I would any other complaint/police report.” (ECF No. 1-2 at 2.) Miller also wrote that “I will
assign your complaint to an Investigator to follow up. The results of the investigation will then be
forwarded to the District Attorney’s Office for review.” (Id.) Plaintiff was advised that “[y]ou will
receive future correspondence via U.S. mail.” (Id.) Plaintiff has heard nothing further about his
affidavit of complaint. (ECF No. 1 at 2.) On October 31, 2013, Plaintiff signed another affidavit
of complaint F.S., Plunk, Turner and Jones that charged those parties with perjury and sought the
issuance of arrest warrants. (Id. at 2; ECF No. 1-3.)
The remainder of the complaint sets forth the law governing actions for malicious
prosecution and the common-law writ of conspiracy, which “applied when conspiracy was formed
to prosecute an individual on a false charge of felony . . . .” (ECF No. 1 at 1; see also id. at 3
(same).) There is also a lengthy discussion of the law of perjury. (Id. at 3-5.) The complaint asserts
that, in a cause of action for maliciously accusing another of a crime with an intent to injure that

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other person, “it is, [sic] immaterial whether the person is guilty or innocent of such crime.” (Id. at
6 (emphasis omitted).) The complaint concludes with a discussion of extortion and obstruction of
justice. (Id. at 6-7.)
Plaintiff asks the Court to “grant the Arrest Warrant” and grant any other relief to which he
may be entitled. (Id. at 7.)
In his amended complaint, which was filed on April 6, 2015, Plaintiff discusses, in general
terms, the law applicable to an attempt to commit an offense. ( ECF No. 5 at 1-2.) Plaintiff also
reiterates his arguments that Defendants have committed perjury. (Id. at 3.) The amended complaint
argues that Defendants have attempted to commit the crime of conspiracy. (Id. at 4-6.)
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 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

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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 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’”

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(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 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.”).
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that
a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon
the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)
(citations omitted); see also Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(“Federal courts are not courts of general jurisdiction; they have only the power that is authorized
by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.”); Ins. Corp.
of Ireland, Ltd. v. Compagnie des Bauxite de Guinee, 456 U.S. 694, 701 (1982) (“Federal courts are
courts of limited jurisdiction. The character of the controversies over which federal judicial
authority may extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower federal courts is
further limited to those subjects encompassed within a statutory grant of jurisdiction.”); Owen Equip.

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& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) (“It is a fundamental precept that federal courts
are courts of limited jurisdiction.”). A federal court may address its subject-matter jurisdiction sua
sponte. See, e.g., Ins. Corp. of Ireland, Ltd., 456 U.S. at 702 (“a court, including an appellate court,
will raise lack of subject-matter jurisdiction on its own motion”); St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 287 n.10 (1938); Answers in Genesis, Inc. v. Creation Ministries Int’l,
Ltd., 556 F.3d 459, 465 (6th Cir. 2009) (“federal courts have a duty to consider their subject matter
jurisdiction in regard to every case and may raise the issue sua sponte”). Under Rule 12(h)(3) of
the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”
“A party seeking to invoke the jurisdiction of the federal courts . . . bears the burden of
establishing that such jurisdiction exists.” Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th
Cir. 2008) (per curiam). Rule 8(a)(1) of the Federal Rule of Civil Procedure requires that the
complaint contain “a short and plain statement of the grounds for the court’s jurisdiction . . . .”
Plaintiff’s complaint does not state the basis for federal subject-matter jurisdiction over this matter.
The complaint does not allege that there is complete diversity of citizenship, as would be required
for jurisdiction under 28 U.S.C. § 1332(a). It appears unlikely that that requirement could be
satisfied. There also is no allegation that the instant action arises “under the Constitution, laws, or
treaties of the United States,” as required for federal question jurisdiction under 28 U.S.C. § 1331.
“Whether a claim presents a federal question is determined by looking to the plaintiff’s statement
of his own claim.” Lexington-Fayette Urban Cnty. Gov't Civil Serv. Comm’n v. Overstreet, 115 F.
App'x 813, 816 (6th Cir. 2004) (internal quotation marks omitted); see also Kitzmann v. Local 619M Graphic Commc’ns Conference of Int’l Bhd. of Teamsters, 415 F. App’x 714, 716 (6th Cir. 2011)

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(“Our review of whether federal-question jurisdiction exists is governed by the well-pleaded
complaint rule, which provides that jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s complaint.”). The claims in Plaintiff’s complaint appear to arise under the
statutes and common law of the State of Tennessee.
Because subject-matter jurisdiction over the instant action is lacking, the Court DISMISSES
the action under 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(1) and Rule 12(h)(3) of the Federal
Rules of Civil Procedure.
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. 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.
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.

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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 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 Plaintiff, this is the third
dismissal of one of his cases as frivolous or malicious or for failure to state a claim.3 This “strike”
shall take effect when judgment is entered. Coleman v. Tollefson, 733 F.3d 175, 177-78 (6th Cir.
2013), cert. granted, 135 S. Ct. 43 (2014) (Nos. 13-1333, 13A985).
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the ground that it is frivolous, malicious,

3

Plaintiff previously filed Douglas v. Plunk, No. 1:11-cv-01219-JDT-egb (W.D. Tenn.
July 11, 2012) (dismissed for failure to state a claim), and Douglas v. Gregory, No. 1:14-cv1302-JDT-egb (W.D. Tenn. Apr. 15, 2014) (dismissed for failure to state a claim).
“[I]n the ordinary course, a dismissal for a lack of jurisdiction is not a strike.” Cohen v.
Corr. Corp. of Am., 439 F. App’x 489, 491-92 (6th Cir. 2011). However, “a per se rule is not
appropriate because a prisoner’s invocation of federal jurisdiction in and of itself may be
frivolous where there is no possible ground upon which a reasoned argument can be made to
sustain jurisdiction. Counting these frivolous invocations of federal jurisdiction as strikes aligns
with the PLRA’s purpose, which is to reduce the burden on federal courts stemming from the
tide of vexatious and burdensome prisoner litigation.” Id. (internal quotation marks, alteration
and citations omitted). Here, Plaintiff frivolously invoked federal jurisdiction by refiling a suit
against the same parties that he sued in case number 12-1276 after that case had been remanded
to state court for want of jurisdiction. Moreover, Plaintiff has acted maliciously by filing
numerous, largely redundant lawsuits against his juvenile rape victim and her family, which is
independent justification for assessment of a third “strike” under 28 U.S.C. § 1915(g).
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or fails to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Consequently, Plaintiff is now barred from filing any further actions in forma
pauperis while he is a prisoner within the meaning of 28 U.S.C. § 1915(h) unless he is in imminent
danger of serious physical injury. Therefore, if any civil action filed by Plaintiff while he is
incarcerated is not accompanied either by the entire civil filing fee or by allegations sufficient to
show that, at the time of filing the action, he is in imminent danger of serious physical injury, the
complaint will be filed, but Plaintiff will be required to remit the full civil filing fee. If he fails to
do so, the case will be dismissed, and the filing fee will be assessed from his inmate trust account
without regard to the installment procedures of 28 U.S.C. §§ 1915(a)-(b).
Plaintiff is cautioned that, if he attempts to evade the § 1915(g) restriction by filing actions
in other jurisdictions that are then transferred or removed to this district, the Court may impose a
monetary sanction in the full amount of the civil filing fee.
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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