Moody v. State of Tennessee et al

Filing 7

ORDER DENYING 6 MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT AND GRANTING LEAVE TO AMEND. Signed by Judge James D. Todd on 3/23/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
GREG MOODY,
Plaintiff,
VS.
STATE OF TENNESSEE, ET AL.,
Defendants.

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No. 17-1073-JDT-cgc

ORDER DENYING MOTION TO APPOINT COUNSEL, DISMISSING COMPLAINT
AND GRANTING LEAVE TO AMEND

On April 18, 2017, Plaintiff Greg Moody, who is currently incarcerated at the Bledsoe
County Correctional Complex in Pikeville, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 4.) In an
order issued April 21, 2017, 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. 5.) Moody’s complaint concerns events occurring during his previous
incarceration at the Dyer County Jail (Jail) in Dyersburg, Tennessee. The Clerk shall record the
Defendants as the State of Tennessee, Sheriff Jeff Box, Dyer County,1 Administrator Alan
Bargery, Nurse Practioner Sherry Heathcott, and Paul Forrester.
On May 18, 2017, Moody filed a motion for appointment of counsel. (ECF No. 6.)
Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any person

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The Court construes claims against the Jail as claims against Dyer County.

unable to afford counsel.” However, “[t]he appointment of counsel in a civil proceeding is not a
constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); see also Shepherd v.
Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he plaintiffs were not entitled to have counsel
appointed because this is a civil lawsuit.”); Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993) (no constitutional right to counsel in a civil case); Farmer v. Haas, 990 F.2d 319, 323 (7th
Cir. 1993) (“There is no constitutional or . . . statutory right to counsel in federal civil cases . .
. .”). Appointment of counsel is “a privilege that is justified only by exceptional circumstances.”
Lavado, 992 F.2d at 606 (internal quotation marks and citation omitted). “In determining
whether ‘exceptional circumstances’ exist, courts have examined the type of case and the
abilities of the plaintiff to represent himself. This generally involves a determination of the
complexity of the factual and legal issues involved.” Id. at 606 (internal quotation marks and
citations omitted). Appointment of counsel is not appropriate when a pro se litigant’s claims are
frivolous or when his chances of success are extremely slim. Id. (citing Mars v. Hanberry, 752
F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey, 307 F. App’x 963, 965 (6th Cir.
2009) (same).
At this stage of the proceeding, because the complaint is being dismissed with leave to
amend, Plaintiff has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel. Therefore, the motion for appointment of counsel is DENIED.
I. The Complaint
Moody’s complaint merely provides a list of rights that he claims were denied by the
Defendants: denial of medical treatment; denial of legal materials and access to the courts;
denial of equal treatment and rights enjoyed by other prisoners; denial of outside recreation;
denial of access to books and reading materials, including religious, legal and scholastic; denial

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of sentence credits and “gain time” for trustee work that was given to other inmates; and denial
of items such as a back brace, neck brace, and pillow that are necessary because of injuries he
previously suffered. (ECF No. 1 at 4, 7.) Moody states that he was involved in an accident in
2011 that caused severe injuries and brain trauma; as a result, he has serious memory problems.
(Id. at 7.) However, he states the “facts will be shown by records and lack of records,” (id. at 8),
and that he relies on the courts and the law to see that gross errors and judgments violated his
civil rights (id.).
Moody seeks declaratory relief, punitive damages of $2 million, and medical treatment or
accommodations. (Id. at 5.)
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,

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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.”).
B.

§ 1983 Claim
Moody 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).
When a complaint fails to allege any action by a defendant, it necessarily fails to “state a
claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570. In this case, the
complaint contains no factual allegations against any of the Defendants and indeed, no factual
allegations at all. Moody provides only a general list of rights he claims were denied. He does
not set forth the details of any incidents or explain how any of the named Defendants were
involved or responsible for the alleged deprivations. Therefore, Moody’s complaint is subject to
dismissal in its entirety because it is inadequate to state any 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
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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 warranted.
IV. Conclusion
The Court DISMISSES the 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. The text of the amended complaint must identify each defendant sued, set forth
the specific causes of action that are asserted against each defendant, and allege sufficient facts
to support each of those claims. If Moody fails to 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.
Moody is reminded that he must promptly notify the Clerk, in writing, of any change of
address or extended absence.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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