Powell-Mays v. Obion County Circuit Court, TN

Filing 6

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 4/27/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SHANTHONY TYWON POWELL-MAYS,
a/k/a SHANTHONY TYWON MAYS,
Plaintiff,
VS.
STATE OF TENNESSEE,
Defendant.

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No. 15-1118-JDT-egb

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On May 13, 2015, Plaintiff Shanthony Tywon Powell-Mays a/k/a Shanthony Tywon
Mays,1 who is incarcerated at the Obion County Correctional Facility in Union City, Tennessee,
filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After Plaintiff submitted
the required documentation (ECF No. 4), the Court issued an order on June 4, 2015, 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 defendant as the State of Tennessee.
I. The Complaint
Plaintiff alleges that he was required to report back to the Obion County Circuit Court on
May 7, 2015, because the District Attorney filed a motion to revoke his bond. (ECF No. 1 at 2.)

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The Clerk is directed to MODIFY the docket to include Plaintiff’s alias, which is listed
on his inmate trust account statement. (ECF No. 4-1 at 1.)

The District Attorney alleged that Plaintiff was behind on his ankle monitor fee and that he had
been trespassing at the BP store on Reelfoot Avenue in Union City, Tennessee. (Id.) Plaintiff
alleges this was “the store that [he] was found acquitted for in trial on 2-15-12.” (Id.)2 He states
that a Tennessee Department of Correction photo of him is posted at the store and has been, to
his knowledge, since April 3, 2015. (Id.) Plaintiff contends that “as far as an order of me not
being able to go to this store I wasn’t issue any type of citation.” (Id.) He alleges false
imprisonment, racial profiling, and “discrimination in content character.” (Id.) Plaintiff seeks to
be vindicated from all charges, released from imprisonment, and to have all charges dropped.
(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)

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 the standards under Federal Rules of Civil Procedure 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.
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Plaintiff does not state whether the charge on which he was acquitted in 2012 is related
in any way to the charge for which the District Attorney sought to revoke Plaintiff’s bond.
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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.
“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

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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.”).
Plaintiff 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.

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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).
The Circuit Court for the Twenty-Seventh Judicial District at Union City, also known as
the Obion County Circuit Court,3 is established pursuant to state law. See Tenn. Code Ann.
§ 16-1-101 (“The judicial power of the state is vested in judges of the courts of general sessions,
recorders of certain towns and cities, circuit courts, criminal courts, common law and chancery
courts, chancery courts, court of appeals, and the supreme court, and other courts created by
law.”). Thus, Obion County is not responsible for any prosecution of Plaintiff in the Obion
County Circuit Court. Plaintiff is being prosecuted by the State of Tennessee.
Plaintiff has no valid claim against the State of Tennessee. The Eleventh Amendment to
the United States Constitution provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Eleventh Amendment has been construed to prohibit citizens from suing
their own states in federal court. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S.
468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Employees of Dep’t of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health & Welfare, 411 U.S.
279, 280 (1973); see also Va. Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632, 1638
(2011) (“A State may waive its sovereign immunity at its pleasure, and in some circumstances

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The Twenty-Seventh Judicial District encompasses Obion and Weakley Counties. See
Tenn. Code Ann. § 16-2-506(27). The Circuit Court for Weakley County is located at Dresden,
Tennessee.
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Congress may abrogate it by appropriate legislation. But absent waiver or valid abrogation,
federal courts may not entertain a private person’s suit against a State.” (citations omitted)). By
its terms, the Eleventh Amendment bars all suits, regardless of the relief sought. Pennhurst, 465
U.S. at 100-01. Tennessee has not waived its sovereign immunity. Tenn. Code Ann. § 20-13102(a). Moreover, a state is not a person within the meaning of 42 U.S.C. § 1983. Lapides v.
Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989).
This Court also cannot order that Plaintiff’s state criminal charges be dismissed or
otherwise interfere in those proceedings. Under the Anti-Injunction Act, 28 U.S.C. § 2283, “[a]
court of the United States may not grant an injunction to stay proceedings in a State court except
as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.” The Sixth Circuit has explained that “[t]he Act thereby
creates ‘an absolute prohibition against enjoining state court proceedings, unless the injunction
falls within one of three specifically defined exceptions,’ which are set forth in the statutory
language.” Andreano v. City of Westlake, 136 F. App’x 865, 879-80 (6th Cir. 2005) (quoting Atl.
Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970)).

Federal

injunctions against state criminal proceedings can be issued only “under extraordinary
circumstances where the danger of irreparable loss is both great and immediate.” Younger v.
Harris, 401 U.S. 37, 45 (1971) (internal quotation marks and citation omitted). The Supreme
Court has emphasized that
[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of
having to defend against a single criminal prosecution, could not by themselves
be considered “irreparable” in the special legal sense of that term. Instead, the
threat to the plaintiff’s federally protected rights must be one that cannot be
eliminated by his defense against a single criminal prosecution.

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Id. at 46. Irreparable injury may be found only where the statute under which the Plaintiff is
charged is “flagrantly and patently violative of express constitutional prohibitions, or where there
is a showing of bad faith, harassment, or other unusual circumstances that would call for
equitable relief.” Mitchum v. Foster, 407 U.S. 225, 231 (1972) (internal quotation marks,
ellipses and citations omitted).

In this case, Plaintiff does not allege any unusual or

extraordinary circumstances that cannot be addressed through his defense in the criminal
proceeding.
Even if Plaintiff has now been convicted of the charges against him, any claim for
damages due to allegedly wrongful conviction and imprisonment is barred by Heck v. Humphrey,
in which the Supreme Court held:
[I]n 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;
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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); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to
the validity of any confinement or to particulars affecting its duration are the province of habeas
corpus.”).
For all of the foregoing reasons, Plaintiff’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
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.”).

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In this case, because the deficiencies in Plaintiff’s complaint cannot be cured, leave to amend is
not warranted.
IV. Conclusion
The Court DISMISSES Plaintiff’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)-(iii) and 1915A(b)(1)-(2). Leave to
amend is DENIED because the deficiencies in Plaintiff’s complaint cannot be cured.
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. 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,

Plaintiff is instructed that if he wishes to take advantage of the installment procedures for paying

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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
first dismissal of one of his cases as frivolous or for failure to state a claim. 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

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