Wynn v. Henderson County Criminal Justice Complex

Filing 13

ORDER DENYING 4 MOTION TO CONVERT CLAIMS AS UNNECESSARY, DENYING 7 MOTION TO APPOINT COUNSEL, 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 3/20/17. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JAMES. J. WYNN
Plaintiff,
VS.
HENDERSON COUNTY,
Defendant.

)
)
)
)
)
)
)
)
)

No. 16-1114-JDT-egb

ORDER DENYING MOTION TO CONVERT CLAIMS AS UNNECESSARY,
DENYING MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On May 19, 2016, Plaintiff James J. Wynn (“Wynn”), who is currently
incarcerated at the West Tennessee Detention Facility (“WTDF”) in Mason, Tennessee,
filed a pro se civil complaint accompanied by a motion to proceed in forma pauperis.
(ECF Nos. 1 & 2.)

The complaint concerns Wynn’s previous incarceration at the

Henderson County Criminal Justice Complex in Lexington, Tennessee.

The Clerk

docketed this matter as an action under 42 U.S.C § 1983.1 After Wynn submitted the
required documentation, the Court granted leave to proceed in forma pauperis and
assessed the civil filing fee pursuant to the Prison Litigation Reform Act (“PLRA”), 28

1

On June 27, 2016, Wynn filed a Motion to convert his claim to a 42 U.S.C § 1983.
(ECF No. 7.) Because the Clerk docketed this as an action under 42 U.S.C § 1983 and the Court
has construed it as such, the motion to convert is DENIED as unnecessary.

U.S.C. §§ 1915(a)-(b). (ECF No. 9) The Clerk shall record the Defendant as Henderson
County.2
I. The Complaint
Wynn alleges that while incarcerated at the Henderson County Criminal Justice
Complex (“Jail”) his access to the courts has been hindered because he is allowed only
two stamped envelopes and four pieces of legal writing paper per week. (ECF No. 1 at 1.)
Wynn contends that he is in need of unlimited legal mail postage and paper because he is
corresponding in eight claims with the Board of Professional Responsibility and one
claim with the Board of Judicial Conduct, as well as civil and criminal court actions.
(Id.) However, Wynn’s request for additional mail postage was denied. (Id. at 1-2.)
Wynn alleges that the Jail does not furnish certified legal mailing, current law books, or
current legal literature. (Id. at 2.) Further, Wynn contends that the Jail is copying his
legal mail and documents, which contain confidential information, outside of his
presence. (Id.)
Wynn seeks unlimited legal mail, postage and paper as well as access to current
law books and literature. (Id.)
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—
2

The Court construes the claims against the Henderson County Criminal Justice
Complex as claims against Henderson County.
2

(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 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 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)).
3

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. 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
4

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.

§ 1983 Claim
Wynn filed his complaint pursuant to 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).
Plaintiff has sued Henderson County. When a § 1983 claim is made against a
municipality, the court must analyze two distinct issues: (1) whether plaintiff’s harm was
5

caused by a constitutional violation; and (2) if so, whether the municipality is responsible
for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). The
second issue is dispositive of plaintiff’s claim against Henderson County.
A local government “cannot be held liable solely because it employs a tortfeasor—
or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in
original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v.
City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A municipality cannot be held
responsible for a constitutional deprivation unless there is a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation. Monell, 436 U.S.
at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To
demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or
custom, (2) connect the policy to the municipality, and (3) show that his particular injury
was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th
Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
“Where a government ‘custom has not received formal approval through the body’s
official decisionmaking channels,’ such a custom may still be the subject of a § 1983
suit.” Alkire, 330 F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or
custom “must be ‘the moving force of the constitutional violation’ in order to establish
the liability of a government body under § 1983.” Searcy, 38 F.3d at 286 (quoting Polk
Co. v. Dodson, 454 U.S. at 326 (citation omitted)). “[T]he touchstone of ‘official policy’
is designed ‘to distinguish acts of the municipality from acts of employees of the
6

municipality, and thereby make clear that municipal liability is limited to action for
which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S.
112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986))
(emphasis in original).
Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to
put the municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v.
Campbell, No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007);
Yeackering v. Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug.
5, 2005); Oliver v. City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D.
Tenn. Dec. 2, 2004); cf. Raub v. Correctional Med. Servs., Inc., No. 06-13942, 2008 WL
160611, at *2 (E.D. Mich. Jan. 15, 2008) (denying motion to dismiss where complaint
contained conclusory allegations of a custom or practice); Cleary v. Cnty of Macomb, No.
06-15505, 2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007) (same); Morningstar v.
City of Detroit, No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich. Sept. 6, 2007)
(same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at *3
(W.D. Tenn. June 15, 2005). The allegations of the complaint fail to identify an official
policy or custom which caused injury to Wynn. Instead, it appears that Wynn is suing
Henderson County because he was confined in a county institution and the County
employed persons who allegedly violated his rights.

7

Wynn’s allegations regarding postage stamps and access to current legal materials
are construed as allegations for denial of his First Amendment right of access to the
courts. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Bounds v. Smith,
430 U.S. 817, 822 (1977); Coleman v. Governor of Mich., 413 F. App’x 866, 874 (6th
Cir. 2011) (“At the least, prison officials must provide all inmates with paper and pen to
draft legal documents, notary services to authenticate the papers, and stamps to mail
them.”); Thomas v. Rochell, 47 F. App’x 315, 318 (6th Cir. 2002) (copies and postage).
However, “[t]he right of access to the courts does not include free and unlimited access to
photocopies. Further, while an indigent inmate must be provided stamps at state expense
to mail legal documents, prison officials may restrict the amount of free postage that an
inmate receives.” Lang v. Thompson, No. 5:10-CV-379-HRW, 2010 WL 4962933, at *7
(E.D. Ky. Nov. 30, 2010) (citations omitted); see also Bell Bey v. Toombs, No. 93-2405,
1994 WL 105900, at *2 (6th Cir. Mar. 28, 1994) (the right of access to the courts does
not include a right to photocopies in whatever amount a prisoner requests).
To have standing to pursue a First Amendment claim that he was denied access to the
courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’ i.e.,
that the conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers v.
Hawley, 14 F. App’x 403, 409 (6th Cir. 2001) (citing Lewis v. Casey, 518 U.S. 343, 35153 (1996)); see also Hadix v. Johnson, 182 F.3d 400, 405-06 (6th Cir. 1999) (explaining
how Lewis altered the “actual injury” requirement). In Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996), the Sixth Circuit explained that “actual injury” can be demonstrated

8

by “the late filing of a court document or the dismissal of an otherwise meritorious
claim.”
Wynn’s complaint alleges he is receiving postage, just not the amount he desires.
Further, his compliant does not allege that he suffered any injury as a result of limited
postage and legal material.
For the foregoing reasons, Wynn’s complaint is dismissed in its entirety for failure
to state a claim upon 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
9

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 concludes that leave to amend is not
warranted.
IV. Conclusion
The Court DISMISSES Wynn’s complaint as to the Defendants 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. Wynn’s motion for appointment of counsel is
DENIED as moot.
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
10

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, 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 second dismissal of one of his cases as frivolous or for failure to state a claim.3 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

3

See Wynn v. City of Jackson, No. 97-1291-JDT (W.D. Tenn. Dec. 16, 1997) (dismissed
as frivolous), aff’d, No. 98-5044, 1999 WL 107967 (6th Cir. Feb. 10, 1999).
11