Pittman v. Cox et al

Filing 9

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, NOTIFYING PLAINTIFF OF APPELLATE FILING FEE AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g). Signed by Judge James D. Todd on 10/27/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MICHAEL PITTMAN,
Plaintiff,
VS.
CHAD COX, ET AL.,
Defendants.

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No. 15-1290-JDT-egb

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE AND
NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g)

On December 3, 2015, Plaintiff Michael Pittman (“Pittman”), an inmate at the Henry
County Correctional Facility (“Jail”) in Paris, Tennessee, filed a pro se civil complaint. (ECF
No. 1.) After Pittman filed the required documentation (ECF Nos. 4 & 7), the Court issued an
order on December 31, 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. 8). The Clerk shall record the Defendants as attorney Chad Cox and the law firm of
Clark and Cox, PLLC.
I. The Complaint
Pittman alleges that in October 2015, he and his fiancee retained Defendant Cox to
represent Pittman “concerning a time reduction or reduction of sentence.” (ECF No. 1 at 2.)
Thereafter, one of Cox’s associates led them to believe that Cox had Pittman’s file and was
working on his case. (Id.) However, Pittman alleges that after a month Cox still had not

followed up with him or his fiancee, had not obtained any pertinent documents about the case,
and had not visited Pittman at the Jail. (Id. at 2-3.) Pittman states that he and his fiancee paid
Cox $1,000.00 (id. at 3), which Cox allegedly accepted “under false pretense, insufficient
counseling, and [e]ntrapment” (id. at 2). Pittman contends this has caused him great stress,
anxiety, and mental pain and suffering and that it constitutes cruel and unusual punishment and
discrimination. (Id. at 3.) The relief sought is not specified.
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
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

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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
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.,

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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.”).
B.

Title VI Claim
Pittman’s complaint is filed pursuant to Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d, which provides that “[n]o person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
However, Plaintiff does not allege that he was discriminated against on the basis of his race,
color or national origin. Furthermore, Plaintiff does not allege that either Cox or his law firm,
Clark and Cox, PLLC, receives Federal financial assistance. Therefore, he has failed to state a
claim under Title VI. See Torrespico v. Columbia Coll., No. 97 C 8881, 1998 WL 703450, at
*16-17 (N.D. Ill. Sept. 30, 1998) (Title VI plaintiff must allege that the entity receives federal
financial assistance); Grimes v. Superior Home Health Care of Middle Tenn., Inc., 929 F. Supp.

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1088, 1092 (M.D. Tenn. 1996) (Title VI claim requires plaintiff to allege racial discrimination
and that the entity receives federal assistance).
C.

§ 1983 Claim
Although Plaintiff has not specifically referenced 42 U.S.C. § 1983 in the complaint, the

Court will also consider whether he has a § 1983 claim. 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).
Plaintiff has no claim against the private attorney Defendants under 42 U.S.C. § 1983.
“A § 1983 plaintiff may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d 552,
567 (6th Cir. 1999). Thus, “[i]n order to be subject to suit under § 1983, [a] defendant’s actions
must be fairly attributable to the state.” Collyer v. Darling, 98 F.3d 211, 231-32 (6th Cir. 1997).
Attorneys, whether court appointed or privately retained, do not act under color of state law for
purposes of § 1983. Smith v. Hilltop Basic Res., Inc., 99 F. App’x 644, 646 (6th Cir. 2004);
Harmon v. Hamilton Cnty. Court of Common Pleas, 83 F. App’x 766, 767 (6th Cir. 2003)
(“Here, the defendant attorneys did not act under color of state law as privately retained
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attorneys, although the acts alleged related to state court litigation.”); Otworth v. Vaderploeg, 61
F. App’x 163, 165 (6th Cir. 2003) (“A lawyer representing a client is not, by virtue of being an
officer of the court, a state actor under color of state law within the meaning of § 1983.”); Catz v.
Chalker, 142 F.3d 279, 289 (6th Cir. 1998).
At most, Pittman has alleged a state-law claim of legal malpractice against the
Defendants. However, because all federal claims are being dismissed, the Court declines to
exercise supplemental jurisdiction over any claims arising under Tennessee law. See 28 U.S.C.
§ 1367(c)(3).1
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
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The complaint sets out no independent basis for the Court to exercise jurisdiction over a
state-law claim against the Defendants based on diversity of citizenship. Diversity of citizenship
means that the action is between “citizens of different States.” 28 U.S.C. § 1332(a). “To
establish diversity jurisdiction, one must plead the citizenship of the corporate and individual
parties.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n.20 (D.C. Cir. 1983); see also
Johnson v. New York, 315 F. App’x 394, 395 (3d Cir. 2009) (per curiam) (“To invoke diversity
jurisdiction, Johnson was required to plead that he is a citizen of a particular state and that the
defendants are citizens of a different state or states.”); Sanders v. Clemco Indus., 823 F.2d 214,
216 (8th Cir. 1987) (complaint did not properly allege diversity jurisdiction); Leys v. Lowe’s
Home Centers, Inc., 601 F. Supp. 2d 908, 912-13 (W.D. Mich. 2009) (complaint and notice of
removal did not adequately establish diversity jurisdiction). The complaint in this case does not
allege that the Defendants are citizens of a different state than Pittman.
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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 finds that leave to amend is not warranted.
IV. Conclusion
The Court DISMISSES Pittman’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), and declines to
exercise jurisdiction over any state-law claim, pursuant to 28 U.S.C. § 1367(c)(3). Leave to
amend is DENIED.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Pittman 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 Defendant, 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 Pittman would not be taken in good faith.

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The Court must also address the assessment of the $505 appellate filing fee if Pittman
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,

Pittman 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 Pittman, this is the
third dismissal of one of his cases as frivolous or for failure to state a claim.2 This “strike” shall
take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
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, 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
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See Pittman v. Henry Co., 1:15-cv-1284-JDT-egb (W.D. Tenn. Oct. 26, 2016)
(dismissed for failure to state a claim); Pittman v. Henry Co., et al., No. 1:15-cv-1262-JDT-egb
(W.D. Tenn. Oct. 25, 2016) (dismissed for failure to state a claim).
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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 the PLRA.
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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