Turner v. Murray Guard

Filing 5

Order Correcting the Docket, Order Denying Motion for Appointment of Counsel, Order of Dismissal, Order Certifying Appeal Not Taken in Good Faith, and Order Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 7/6/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOSEPH RICHARD TURNER, JR.,
Plaintiff,
vs.
MURRAY GUARD, INC.,
Defendant.

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No. 11-2840-STA-dkv

ORDER CORRECTING THE DOCKET
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On September 27, 2011, Plaintiff Joseph Richard Turner,
Jr., a resident of Memphis, Tennessee, filed a pro se complaint
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., accompanied by motions seeking leave to proceed in
forma pauperis and appointment of counsel. (ECF Nos. 1, 2 & 3.) The
Court issued an order on September 27, 2011, granting leave to
proceed in forma pauperis. (ECF No. 3.) The Clerk shall record the
defendant as Murray Guard, Inc., which was sued as “Murray Guard.”1
The

Court

is

required

to

screen

in

forma

pauperis

complaints and to dismiss any complaint, or any portion thereof, if
the action —

1

The Clerk is directed to correct the docket to reflect Defendant’s
legal name, which was obtained from the Tennessee Secretary of State.

(i)

is frivolous or malicious;

(ii)
fails to state a claim on which relief may be
granted; or
(iii)
seeks monetary relief against a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2).
In assessing whether the complaint in this case states a
claim on which relief may be granted, the standards under Federal
Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal, ___
U.S. ___, ___, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009),
and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.
Ct. 1955, 1964-66, 167 L. Ed. 2d 929 (2007), are applied. 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, ___ U.S. at ___, 129
S. Ct. at 1951) (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, ___
U.S. at ___, 129 S. Ct. at 1950; see also Twombly, 550 U.S. at 555
n.3, 127 S. Ct. at 1964-65 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.”).
2

“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 (internal citation omitted).
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. Unlike a dismissal for
failure to state a claim, where a judge must accept all
factual allegations as true, a judge does not have to
accept “fantastic or delusional” factual allegations as
true in prisoner complaints that are reviewed for
frivolousness.
Id. at 471 (internal citations & quotation marks omitted).
“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

(internal quotation marks omitted). Pro se litigants, however, 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, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A]
court cannot create a claim which [a plaintiff] has not spelled out
in his pleading”) (internal quotation marks omitted); Payne v.
Secretary 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, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338 (2004) (“District
3

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.”), petition for cert. filed (U.S. Aug. 5, 2011) (No. 115908).
Plaintiff

has

sued

under

Title

VII,

which

prohibits

employers from discriminating against employees on the basis of their
race, color, religion, sex, or national origin, 42 U.S.C. § 2000e2(a), or for retaliating against employees who oppose unlawful
employment

practices

or

who

participate

in

an

investigation,

proceeding, or hearing under Title VII, id. § 2000e-2(a). The
Complaint

does

not

allege

that

Defendant

discriminated

against

Plaintiff because of his race, color, religion, sex, or national
original, and it does not allege that Defendant retaliated against
him in violation of Title VII. Instead, the Complaint purports to
assert a claim for wrongful discharge, which is not actionable under
Title VII in the absence of discrimination or retaliation.2

2

The Court declines to construe the Complaint as asserting a claim for
wrongful discharge under Tennessee law. Because the sole federal claim has been
dismissed, the Court declines to exercise supplemental jurisdiction over any such
claim. See 28 U.S.C. § 1367(c)(3). It does not appear that there would be diversity
jurisdiction over any such claim because Defendant is a Tennessee corporation and
(continued...)

4

Therefore, the Court DISMISSES the Complaint for failure
to state a claim on which relief may be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). The motion for appointment of counsel is
DENIED as moot. Judgment shall be entered for Defendant.
The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should he seek to
do so. Twenty-eight U.S.C. § 1915(a)(3) provides that “[a]n appeal
may not be taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.”
Pursuant to the Federal Rule of Appellate Procedure 24(a),
a non-prisoner desiring to proceed on appeal in forma pauperis must
obtain pauper status. See Callihan v. Schneider, 178 F.3d 800, 803-04
(6th Cir. 1999). Rule 24(a)(3) provides that if a party was permitted
to proceed in forma pauperis in the district court, he may also
proceed on appeal in forma pauperis without further authorization
unless the district court “certifies that the appeal is not taken in
good faith or finds that the party is not otherwise entitled to
proceed in forma pauperis.” If the district court denies pauper
status, the party may file a motion to proceed in forma pauperis in
the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one.

Coppedge v.

United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21
(1962). The test under 28 U.S.C. § 1915(a) 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
2
(...continued)
Plaintiff resides in Tennessee.

5

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. It is therefore 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 and Plaintiff may not proceed on appeal in forma pauperis.
Leave to proceed on appeal in forma pauperis is, therefore, DENIED.3
IT IS SO ORDERED this 6th day of July, 2012.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

3
If Plaintiff files a notice of appeal, he must also pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the United States Court of Appeals for the Sixth Circuit within thirty
(30) days.

6