Davis v. Kustoff
Filing
4
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 6/1/12. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIE L. DAVIS,
Plaintiff,
vs.
DAVID KUSTOFF,
Defendant.
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No. 12-2282-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 April 12, 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 January 12, 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. 3.) The Clerk shall record the defendant as
former United States Attorney David Kustoff.
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, on February 1, 2007,
Defendant
created
an
invalid
indictment
against
Plaintiff
by
signing an indictment that did not contain the signature of the
foreperson of the grand jury. (ECF No. 1 at 2.) Plaintiff claims
that this act amounted to treason and a violation of Defendant’s
oath of office. (Id.) As a result of this unconstitutional action,
Plaintiff has been in custody since February 23, 2007. (Id. at 3.)
Plaintiff seeks an order directing that he be released.
(Id. at 4.)
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).
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“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)).
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,
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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
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
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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
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).
When a prisoner seeks to challenge the validity or
duration of his confinement, his sole remedy is a petition for a
writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475 (1973);
see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges
to the validity of any confinement or to particulars affecting its
duration
are
the
province
of
habeas
corpus.”).
Davis
cannot
challenge the validity of his conviction under Bivens, and this
Court cannot order his release even if his claim were meritorious.
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Even
if
that
were
not
the
case,
the
copy
of
the
indictment on the criminal case docket was signed by the foreperson
of the grand jury. (Indictment at 8, United States v. Davis, No.
07-20042-STA (W.D. Tenn.), ECF No. 1.)
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). 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. 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
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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
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 first dismissal in this district
of one of his cases as frivolous or for failure to state a claim.
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 1st day of June, 2012.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
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