Davis v. Arvin et al

Filing 10

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 6/20/12. (Anderson, S.)

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

WILLIE L. DAVIS,
Plaintiff,
vs.
TONY R. ARVIN,
Defendant.

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No. 12-2166-STA-cgc

ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On February 27, 2012, Plaintiff Willie L. Davis, Bureau
of Prisons register number 21433-076, an inmate at the United
States Penitentiary in Lewisburg, Pennsylvania, filed a pro se
complaint pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), accompanied by a motion
seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) The
Court issued an order on March 15, 2012, granting leave to proceed
in forma pauperis and assessing the civil filing fee pursuant to
the Prison Litigation Reform Act of 1996 (“PLRA”), 28 U.S.C. §§
1915(a)-(b). (ECF No. 5.) The Clerk shall record the defendants as
Assistant United States Attorney Tony R. Arvin and former Shelby
County Sheriff Mark H. Luttrell, Jr.
This case arises out of United States v. Davis, No. 0720042-STA (W.D. Tenn.), in which Davis pled guilty to two counts of

obstructing interstate commerce by robbery, in violation of 18
U.S.C. § 1951; two counts of felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g); and one count of use of a firearm
during the commission of a crime of violence, in violation of 18
U.S.C. § 924(c). Davis is serving a sentence of two hundred sixteen
(216) months imposed in that case.
Plaintiff’s complaint alleges that he was arrested by
Shelby County Sheriffs Deputies in January 2007 and charged in
state court with felon in possession of a weapon, robbery, and
especially aggravated kidnapping. Because of an unconstitutional
scheme

called

“gun

done

for

review,”

Defendant

Luttrell

relinquished his jurisdiction and Plaintiff was unconstitutionally
indicted by a federal grand jury. (ECF No. 1 at 2.) Defendant Arvin
unconstitutionally prosecuted Plaintiff although the federal court
lacked legislative, territorial, and subject-matter jurisdiction
over him. Arvin allegedly allowed Plaintiff to enter into an
illegal plea agreement. Plaintiff contends that he is a citizen of
the

sovereign

and

independent

State

of

Tennessee,

where

the

offenses were allegedly committed. (Id. at 3.) Defendant Arvin
infringed Plaintiff’s rights under the Ninth and Tenth Amendments
by prosecuting him in federal court. (Id. at 3-4.) Plaintiff also
asserts a violation of Bond v. United States, ___ U.S. ___, 131 S.
Ct. 2355 (2011). (ECF No. 1 at 4.)
Plaintiff seeks an investigation and money damages. (Id.
at 5.)

2

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).
In assessing whether the complaint in this case states a
claim on which relief may be granted, the standards under Rule
12(b)(6) of the Federal Rules of Civil Procedure, 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).
“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

3

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. As the Sixth Circuit has
explained:
Before the recent onslaught of pro se prisoner
suits, the Supreme Court suggested that pro se complaints
are to be held to a less stringent standard than formal
4

pleadings drafted by lawyers. See Haines v. Kerner, 404
U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per
curiam). Neither that Court nor other courts, however,
have been willing to abrogate basic pleading essentials
in pro se suits. See, e.g., id. at 521, 92 S. Ct. at 596
(holding petitioner to standards of Conley v. Gibson);
Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (duty to be
less stringent with pro se complaint does not require
court to conjure up unplead allegations), cert. denied,
464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d 3366 (1983);
McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same);
Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987) (pro se
plaintiffs should plead with requisite specificity so as
to give defendants notice); Holsey v. Collins, 90 F.R.D.
122 (D. Md. 1981) (even pro se litigants must meet some
minimum standards).
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. 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. 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 (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

5

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.”), cert.
denied, ___ U.S. ___, 132 S. Ct. 461 (2011).
Plaintiff’s claims arise under Bivens, which provides a
right

of

action

against

federal

employees

who

violate

an

individual’s rights under the United States Constitution. “Under
the Bivens line of cases, the Supreme Court has recognized a cause
of action against federal officials for certain constitutional
violations when there are no alternative processes to protect the
interests of the plaintiff and no special factors counseling
against recognizing the cause of action.” Koubriti v. Convertino,
593 F.3d 459, 466 (6th Cir.), cert. denied, ___ U.S. ___, 131 S.
Ct. 82 (2010). Plaintiff cannot sue Defendant Luttrell under Bivens
because, as the former Shelby County Sheriff, he was not a federal
employee.
Plaintiff also cannot obtain money damages from Defendant
Arvin. Prosecutors are absolutely immune from suit for actions
taken in initiating and pursuing criminal prosecutions because that
conduct is “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
Plaintiff’s claim for money damages against Defendant Arvin is
barred by absolute prosecutorial immunity. Id. at 427-28; Burns v.
Reed, 500 U.S. 478, 490-492 (1991); Grant v. Hollenbach, 870 F.2d

6

1135, 1137 (6th Cir. 1989); Jones v. Shankland, 800 F.2d 77, 80
(6th Cir. 1986).
With the possible exception of any claim arising from the
decision in Bond v. United States, Plaintiff’s Bivens claims are
also time barred. A one-year statute of limitations is applicable
to Bivens actions in Tennessee. Mason v. Department of Justice, 39
F. App’x 205, 207 (6th Cir. 2002); see also Merriweather v. City of
Memphis, 107 F.3d 396, 398 n.1 (6th Cir. 1997) (“In federal
constitutional tort actions, the court borrows the statute of
limitations for personal torts from the state where the claim arose
— here, Tennessee.”); Tenn. Code Ann. § 28-3-104(a). The events at
issue occurred between 2007 and 2009, and Plaintiff’s complaint was
signed more than three years later, on February 20, 2012. (ECF No.
1 at 5.)
Plaintiff also cannot sue for money damages for his
allegedly unlawful confinement because it has not been determined
that his convictions and sentences are invalid. As the Supreme
Court explained:
We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. §
2254. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated
is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
7

conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed,
in the absence of some other bar to the suit.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnotes omitted).
Thus, a prisoner has no cause of action under § 1983 if the claims
in that action hinge on factual proof that would call into question
the validity of a court order directing his confinement unless and
until any prosecution is ended in his favor, an existing conviction
is set aside, or the confinement is declared illegal. Id. at 48182; Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995). None of
these events has occurred.
Finally, Plaintiff’s claim that he is not subject to
federal law is frivolous. See United States v. Hilgeford, 7 F.3d
1340, 1342 (7th Cir. 1993) (characterizing litigant’s claim that he
is “a citizen of the mythical ‘Indiana State Republic’ and for that
reason is an alien beyond the jurisdictional reach of the federal
courts” as “a ‘shop worn’ argument of the tax protester movement”).
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) and 1915A(b)(1). The claims against
Defendant Arvin are also DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B)(iii) and 1915A(b)(2). Judgment shall be entered for
Defendants.

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The Court must also consider whether Plaintiff should be
allowed to appeal this decision in forma pauperis, should he seek
to do so. The United States Court of Appeals for the Sixth Circuit
requires that all district courts in the circuit determine, in all
cases where the appellant seeks to proceed in forma pauperis,
whether the appeal would be frivolous. 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.”
The good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445 (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 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.
If Plaintiff appeals the dismissal of this case, the
Court is required to assess the $455 appellate filing fee. In
9

McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), the
Sixth Circuit set out specific procedures for implementing the
PLRA, 28 U.S.C. §§ 1915(a)-(b). Therefore, 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 28 U.S.C. § 1915(b).
For analysis under 28 U.S.C. § 1915(g) of future filings,
if any, by Plaintiff, this is the second dismissal in this district
of one of his cases as frivolous or for failure to state a claim.1
This “strike” shall take effect, without further action by the
Court, upon expiration of the time for filing a notice of appeal,
the dismissal of any appeal, or the affirmation of this Court’s
decision on appeal, whichever is later.
IT IS SO ORDERED this 20th day of June, 2012.

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

1

Plaintiff previously filed Davis v. Kustoff, No. 12-2282-STA-cgc
(W.D. Tenn.), which was dismissed for failure to state a claim on June 1, 2012.

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