Baltimore et al v. Bond et al

Filing 9

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 4/15/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CORDARIOUS BALTIMORE,
Plaintiff,
VS.
MELVIN BOND, ET AL.,
Defendants.

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No. 15-1066-JDT-egb

ORDER DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND

On March 27, 2015, Plaintiff Cordarious Baltimore (“Baltimore”), who was, at the
time, confined at the Haywood County Jail (“Jail”) in Brownsville, Tennessee, filed a pro
se complaint pursuant to 42 U.S.C. § 1983.1 (ECF No. 1.) After Baltimore submitted the
required documentation (ECF No. 4), the Court issued an order 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). Baltimore subsequently
notified the Clerk he had been released. (ECF No. 6.) Baltimore also submitted a
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Kenneth Eric McFarland, Ray Collier, Tyler Taylor, Stephen Therialt, and Willie Bailey
are also listed as plaintiffs on the complaint, but they did not sign the complaint or submit
applications to proceed in forma pauperis. Therefore, Cordarious Baltimore is the only proper
plaintiff. Generally, no pro se plaintiff may represent another plaintiff or sign a pleading on
behalf of another plaintiff. See Johns .v. Cnty of San Diego, 114 F.3d 874, 876 (9th Cir. 1997)
(“While a non-attorney may appear pro se on his own behalf, ‘[h]e has no authority to appear as
an attorney for others than himself.’”); Mikeska v. Collins, 928 F.2d 1442, 1443 (5th Cir. 1989).
The Clerk is directed to MODIFY the docket to terminate all listed plaintiffs except Cordarious
Baltimore.

non-prisoner application to proceed in forma pauperis (ECF No. 7), which the Court
granted on July 15, 2015 (ECF No. 8). The Clerk shall record the Defendants as
Haywood County Sheriff Melvin Bond; Captain Tonya Fisher; Lieutenant Cedrick Tyus;
Corporal (“Cpl.”) Nancy Starks; Officer Thomas Wills; Cpl. Divonne Clark; Cpl. First
Name Unknown (“FNU”) Kennedy; Deputy FNU Howington; Deputy FNU Henderson;
Deputy FNU Jones; Lt. Ray Bunch; Sergeant Clarence Delk; and Deputy FNU King.
I. The Complaint
Baltimore alleges that Defendants Bond, Tyus and Fisher have given lower level
staff, including Defendants Kennedy, Clark and Starks, permission to use excessive force
with taser guns. (ECF No. 1 at 2.) Baltimore alleges that Defendants Jones, King and
Howington have threatened him with taser guns (id.) and that Defendants Bunch, Delk,
Henderson and Wills have been allowed to use excessive force. (Id.) Baltimore seeks
money damages. (Id. at 3.)
II. Analysis
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 court applies the standards under Federal Rules of Civil Procedure
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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). 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) (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”
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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.
“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. 092259, 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

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come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
Baltimore filed his complaint on the court-supplied form for actions under 42
U.S.C. § 1983. 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.
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).
For Baltimore, who was presumably a pretrial detainee while confined at the Jail,
claims of excessive force arise under the Fourteenth Amendment. The Supreme Court
held, in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), that the proper inquiry with
regard to such claims is whether the plaintiff can show “that the force purposely or
knowingly used against him was objectively unreasonable.” Id. at 2473. “The inquiry is
highly fact-dependent, and must take into account the ‘perspective of a reasonable officer
on the scene, including what the officer knew at the time, not with the 20/20 vision of
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hindsight.’” Coley v. Lucas Cty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015) (quoting
Kingsley, 135 S. Ct. at 2473.
In this case, Baltimore does not allege the Defendants subjected him to any force
at all, let alone excessive force. Baltimore alleges only that Defendants Bond, Fisher and
Tyus gave the other officers permission to use excessive force with taser guns and that
Defendants Jones, King and Howington threatened him with tasers.2 However, Baltimore
does not set forth any of the circumstances surrounding these alleged threats or assert that
he was actually harmed by any of the Defendants. Therefore, the complaint does not
sufficiently allege that Baltimore was subjected to force that was objectively
unreasonable. For this reason, Baltimore’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
III. 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
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Baltimore alleges that Defendants Bunch, Delk, Henderson and Wills were also
“allowed to use excessive force” (ECF No. 1 at 2); however, he does not allege these Defendants
subjected him to excessive force.
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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.”). In this case, the Court cannot conclude that any amendment to
Baltimore’s claims would be futile as a matter of law.
IV. Conclusion
The Court DISMISSES Baltimore’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).
However, leave to amend is GRANTED. Any amended complaint must be filed within
thirty (30) days after the date of this order. Baltimore is advised that an amended
complaint will supersede the original pleadings and and must be complete in itself
without reference to those prior pleadings.

The text of the complaint must allege

sufficient facts to support each claim without reference to any extraneous document. Any
exhibits must be identified by number in the text of the amended complaint and must be
attached to the complaint. All claims alleged in an amended complaint must arise from
the facts alleged in the original complaint. Each claim for relief must be stated in a
separate count and must identify each defendant sued in that count. If Baltimore fails to
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file an amended complaint within the time specified, the Court will assess a strike
pursuant to 28 U.S.C. § 1915(g) and enter judgment.
Baltimore is reminded that he must promptly notify the Clerk of any change of
address or extended absence. Failure to comply with these requirements, or any other
order of the Court, may result in the dismissal of this case without further notice.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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