Poe v. Gist et al

Filing 11

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 5/29/19. (skc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
CORNELL POE,
Plaintiff,
VS.
JERRY GIST, ET AL.,
Defendants.

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No. 1:18-cv-1104-JDT-cgc

ORDER DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On June 18, 2018, Plaintiff Cornell Poe filed a pro se complaint pursuant to
42 U.S.C. § 1983. (ECF No. 1.) At the time, Plaintiff was incarcerated at the Trousdale
Turner Correctional Center in Hartsville, Tennessee. On June 19, 2018, the Court ordered
Poe to comply with 28 U.S.C. § 1915(a) or pay the full $400 civil filing fee. (ECF No. 3.)
Poe moved for leave to proceed in forma pauperis. (ECF No. 4.) The Court, however,
denied that motion because Poe’s trust account statement showed he had sufficient funds
to pay the full filing fee. (ECF No. 5 at PageID 50.) Poe eventually tendered the full $400
filing fee. (ECF No. 8.)
On September 18, 2018, Poe notified the Court that he has been released on parole
and provided his new address. (ECF No. 9.) Poe also submitted an amended complaint,
which supersedes the original. (ECF No. 10.) The Clerk shall record the Defendants as

Jerry Gist, Mayor of Jackson, Tennessee; Jimmy Harris, Mayor of Madison County; John
Mehr,1 Sheriff of Madison County; Julian Wiser, Police Chief of Jackson; Ashley
McCullar, an Investigator with the Jackson Police Department (JPD); JPD Officer Kevin
Livingston;2 JPD Lieutenant J. Harris; JPD Officer First Name Unknown Cozart; Ben
King, Assistant Public Defender; and Rosalind N. Lyons.
Poe asserts claims of malicious prosecution, false arrest, and violations of his right
to due process related to an investigation and Poe’s eventual arrest in November 2017.
(ECF No. 10-1 at PageID 62.) Poe alleges that on November 13, 2017, Defendant Lyons
contacted the Jackson Police Department regarding a “suspicious situation.” (Id.) Lyons
allegedly told Officer Livingston that she had purchased two money orders at a post office
on October 31, 2017, and mailed them to her landlord, but the landlord never received
them. (Id.) Lyons further reported that on November 11 or 12, 2017, she had found a
sticky note on her apartment door from Poe telling her he had the money orders and wanted
something in exchange for their return. (Id. at PageID 62-63, 66.) Lyons met with Poe
and gave him a small monetary reward but also called the police. (Id. at PageID 66.)
Two days later, Poe alleges, Investigator McCullar obtained two arrest warrants
against Poe for theft of property and extortion. (Id. at PageID 65-66.) Lieutenant Harris

1

Plaintiff identifies the Sheriff as John “Meher.” However, the correct spelling of the
Sheriff’s last name is “Mehr.” See www.msco-tn.org. The Clerk is directed to MODIFY the
docket to reflect the correct spelling.
2

Plaintiff spells this Defendant’s last name as “Livington.” However, the reports
included with the amended complaint confirm the correct spelling is “Livingston,” as recorded
by the Clerk.
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and Officer Cozart arrested Poe at his home the next day and confiscated two cell phones.
(Id. at PageID 71-72.) On November 21, 2017, three days after Poe’s arrest, McCullar
allegedly served Poe with a search warrant for the content of one of the phones taken from
Poe.3 (Id. at PageID 72.) Poe alleges that, at a preliminary hearing on December 7, 2017,
McCullar informed the Court there was no video showing Poe stealing anything from
Lyons’s post office box or any other post office box. (Id. at PageID 77.) The judge
dismissed the charge for theft of property but bound over the extortion charge to the grand
jury. (Id. at PageID 77.) Poe alleges that, after the hearing, he was taken into custody for
violating his parole because of his arrest. (Id. at PageID 78.)
Poe was scheduled for parole hearings in March and April 2018 but alleges that the
hearings were delayed because of detainers that Madison County placed on him for his
arrest on the charges from November 2017. (Id. at PageID 78, 88.) On May 14, 2018, the
grand jury returned a No Bill on the extortion charge, and all of the existing holds on Poe
were removed. (Id. at PageID 91.) At a subsequent parole board hearing on May 23, 2018,
the board recommended Poe for parole. (Id. at PageID 91, 95.)
Poe seeks a declaratory judgment that the Defendants violated his right to due
process, falsified the police reports that led to his arrest, and maliciously prosecuted him.
(ECF No. 10 at PageID 61.) He seeks compensatory and punitive damages from each
Defendant. (Id.)

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Poe does not allege whether any law enforcement officer ever actually searched the
contents of the phone.
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The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaintC
(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 standards under Fed. R. Civ. P. 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), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court
accepts the complaint’s “well-pleaded” factual allegations as true and then determines
whether the allegations “plausibly suggest an entitlement to relief.’” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). Conclusory allegations
“are not entitled to the assumption of truth,” and legal conclusions “must be supported by
factual allegations.” Iqbal, 556 U.S. at 679. Although a complaint need only contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.
R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make a “‘showing,’
rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3.
“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,
however, are not exempt from the requirements of the Federal Rules of Civil Procedure.
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Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F.
App’x 608, 612, 613 (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))).
Poe filed his complaint pursuant to 42 U.S.C. § 1983, which 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 § 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).
Poe cannot sue Defendant Lyons, a private, non-state actor, under § 1983.
Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Lyons is subject to a claim
under § 1983 only if her actions are “fairly attributable to the state.” Collyer v. Darling,
98 F.3d 211, 231-32 (6th Cir. 1997). Lyons’s actions in reporting a suspicious situation to

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the police are not attributable to the state, and Poe does not suggest any basis for concluding
otherwise.
Similarly, Poe has no claim against his public defender, Defendant King, for his
actions as Poe’s attorney. Though attorneys employed as public defenders are paid by the
State, “public defenders do not ‘act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.’” Powers v.
Hamilton Cnty. Public Defender Comm’n, 501 F.3d 592, 611 (6th Cir. 2007) (quoting Polk
Cnty. v. Dodson, 454 U.S. 312, 325 (1981)).
To the extent Poe intends to assert any official capacity claims against the Madison
County or City of Jackson Defendants, his claims are against the County and the City. A
local government such as a municipality or county “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).
A municipality may be held responsible for a constitutional deprivation only if there is a
direct causal link between a municipal policy or custom and the alleged 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)).
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“[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality
from acts of employees of the 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)).
Poe does not allege that he suffered an injury because of an unconstitutional policy
or custom of either Madison County or the City of Jackson. He instead directs his
allegations against various officers and their supervisors or superiors. He therefore does
not state a claim against Madison County or the City of Jackson.
Poe seeks to hold Defendants Gist, Harris, Mehr, and Wiser responsible for the
actions of the involved officers because of these Defendants’ positions as Mayor, Sheriff,
and Chief of Police.

(ECF No. 10-1 at 76-77, 95-96.)

Under § 1983, however,

“[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676; see also
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific incident
of misconduct or in some other way directly participated in it. At a minimum,
a § 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional
conduct of the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the
unconstitutional conduct of his subordinates but fails to act generally cannot be held liable
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in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28
(6th Cir. 1996).
Poe does not allege any direct action by Defendants Gist, Harris, Mehr, or Wiser.
He alleges only that they are liable for the actions of the officers named in his complaint.
Nor does Poe allege that these Defendants even knew of the named officers’ alleged
actions. Poe therefore fails to state a claim against Defendants Gist, Harris, Mehr and
Wiser.
Poe’s remaining allegations are that Defendants McCullar, Livingston, Harris, and
Cozart falsified the police reports against him and maliciously prosecuted him for theft and
extortion. The Fourth Amendment protects individuals from unreasonable searches and
seizures. U.S. Const. Amend. IV; United States v. Torres-Ramos, 536 F.3d 542, 554
(6th Cir. 2008). To sustain a claim of false arrest, Poe must show that the arresting officer
lacked probable cause to arrest him. Voyticky v. Village of Timberlake, Ohio, 412 F.3d
669, 677 (6th Cir. 2005). If the Plaintiff was arrested pursuant to a warrant, as Poe was
here, he must show “that in order to procure the warrant, [the officer] ‘knowingly and
deliberately, or with a reckless disregard for the truth, made false statements or omissions
that create[d] a falsehood’ and ‘such statements or omissions [we]re material, or necessary,
to the finding of probable cause.’” Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010)
(quoting Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)).

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A claim of malicious prosecution also arises under the Fourth Amendment but “is
‘entirely distinct’ from that of false arrest, as the malicious-prosecution tort ‘remedies
detention accompanied not by absence of legal process, but by wrongful institution of legal
process.’” Anderson, 625 F.3d at 308 (quoting Wallace v. Kato, 549 U.S. 384, 390 (2007)).
As the Sixth Circuit has described, the Fourth Amendment provides a “right to be free from
malicious prosecution by a defendant who has ‘made, influenced, or participated in the
decision to prosecute the plaintiff’ by, for example, ‘knowingly or recklessly’ making false
statements that are material to the prosecution either in reports or in affidavits filed to
secure warrants.” King v. Harwood, 852 F.3d 568, 582-83 (6th Cir. 2017) (quoting Webb
v. United States, 789 F.3d 647, 665 (6th Cir. 2015)). To state a claim under § 1983 for
malicious prosecution, the Plaintiff must allege the following:
(1) a criminal prosecution was initiated against the plaintiff, and the
defendant made[,] influenced, or participated in the decision to prosecute;
(2) there was a lack of probable cause for the criminal prosecution; (3) the
plaintiff suffered a deprivation of liberty, as understood under Fourth
Amendment jurisprudence, apart from the initial seizure; and (4) the criminal
proceeding was resolved in the plaintiff’s favor.
Id. at 580 (quoting Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017)). Despite the name,
a showing of malice is not required, and the claim “might more aptly be called
‘unreasonable prosecutorial seizure.’” Id. (quoting Sykes, 625 F.3d at 310).
Both claims require a showing that the Defendants knowingly or recklessly made
false statements that led to a finding of probable cause. Poe, however, has not shown that
any officer acted knowingly or recklessly when creating the reports or affidavits in his case.
Poe alleges only that certain information was not included in the affidavits for his arrest
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and asserts that the warrants therefore lacked probable cause.

(ECF No. 10-1 at

PageID 65.) He does not suggest that any statement in the warrants was false.4 That the
criminal prosecution against him failed does not necessarily mean it was malicious in
nature. See Newman v. Twp. of Hamburg, 773 F.3d 769, 773 (6th Cir. 2014) (quoting
Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005) (internal quotation marks
omitted) (“Because there is no requirement that the defendant to a malicious-prosecution
charge must have evidence that will ensure a conviction, not every failed criminal
prosecution will sustain a subsequent malicious-prosecution suit.”)). At most, Poe’s
allegations suggest the arrest may have been negligent or hasty, which does not suffice to
state a claim for false arrest or malicious prosecution. See Ahlers v. Schebil, 188 F.3d 365,
373 (6th Cir. 1999) (citing Lippay v. Christos, 996 F.2d 1490, 1501 (3d Cir. 1993));
Newman, 773 F.3d at 772 (citing Wolf v. Winlock, 34 F. App’x 457, 461 (6th Cir. 2002),
and Packer v. City of Toledo, 1 F. App’x 430, 434 (6th Cir. 2001)).
For the foregoing reasons, Poe’s complaint is subject to dismissal in its entirety for
failure to state a claim.

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Poe asserts the warrants failed to state that “at no time did the victim relate to Officer
Livingston that she felt the Plaintiff ‘stole’ the money orders” or state “that she felt she was
being coerced to provide a ‘reward’ for the return of said money orders.” (ECF No. 10-1 at
PageID 65.) According to Poe, “Ms. Lyons only issue, based on the report filed by Officer
Livingston, was that she was worried that the Plaintiff knew her address.” (Id.) That appears to
be an over-simplification of Officer Livingston’s report of the incident, which does not state that
Plaintiff’s knowledge of her address was Ms. Lyons’s only concern. Livingston clearly states in
his report that Ms. Lyons told him Poe’s note indicated Poe “wanted something” for the return of
the money orders. (Id. at PageID 63.)
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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., 511 F. App’x 4, 5 (1st Cir. 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. 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 . . . amending the complaint would be futile, then a
sua sponte dismissal may stand.”); 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 concludes that leave to further amend
is not warranted.
In conclusion, the Court DISMISSES Poe’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).
Leave to amend is DENIED.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal
by Poe 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). 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
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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.
It is CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a) and
28 U.S.C. § 1915(a)(3), that any appeal in this matter by Poe would not be taken in good
faith. Accordingly, leave to proceed on appeal in forma pauperis is DENIED. If Plaintiff
files a notice of appeal, he must also pay the full $505 appellate filing fee or file a motion
for leave to appeal in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals.
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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