Erby v. Oldham et al
Filing
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ORDER DENYING MOTION TO CEASE COLLECTION OF FEES 4 , ORDER DENYING MOTION TO AMEND COMPLAINT 5 , ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH ANDORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge James D. Todd on 9/20/12. (jlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
FRED ERBY,
Plaintiff,
vs.
SHERIFF OLDHAM, et al.,
Defendants.
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No. 12-2439-JDT-tmp
ORDER DENYING MOTION TO CEASE COLLECTION OF FEES
(DOCKET ENTRY 4)
ORDER DENYING MOTION TO AMEND COMPLAINT
(DOCKET ENTRY 5)
ORDER OF DISMISSAL
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On June 7, 2012, Plaintiff Fred Erby, an inmate at the Shelby County Criminal
Justice Complex (“Jail”) in Memphis, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § l983, accompanied by a motion seeking leave to proceed in forma pauperis. (Docket
Entry (“D.E.”) 1, D.E. 2.) The Court issued an order on June 8, 2012, that granted leave to
proceed in forma pauperis and assessed the civil filing fee. (D.E. 3.) The Clerk shall record
the defendants as Sheriff Oldham, Federal Bureau of Prisons, and Federal Medical Center
at Springfield, Missouri.
Under the Prison Litigation Act of 1995 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b),
a prisoner bringing a civil action must pay the full filing fee of $350 required by 28 U.S.C.
§ 1914(a). Plaintiff has filed a motion requesting that the Court cease the collection of the
filing fee. (D.E. 4.) Plaintiff Erby was previously found incompetent to stand trial and was
indefinitely civilly committed for mental health care and treatment in the Western District
of Missouri. The United States Court of Appeals for the Eighth Circuit ruled that the
provisions of the PLRA do not apply to civilly committed detainees. See Perkins v. Hedricks,
340 F.3d 582, 583 (8th Cir. 2003).
Unfortunately for Plaintiff Erby, he was released from civil commitment. He
is currently a pre-trial detainee awaiting trial on criminal charges in Shelby County,
Tennessee. The provisions of the PLRA are applicable to the present lawsuit and Erby must
pay the filing fee. The motion to cease collection (D.E. 4) is DENIED.
On August 21, 2012, Plaintiff filed a motion for leave to file an amended
complaint. (D.E. 5.) The United States Court of Appeals for the Sixth Circuit has issued an
administrative order which states:
Even if a non-prisoner pays the filing fee and/or is represented by counsel, the
complaint must be screened under § 1915(e)(2). The language of § 1915(e)(2)
does not differentiate between cases filed by prisoners and cases filed by
non-prisoners. The screening must occur even before process is served or
the individual has an opportunity to amend the complaint. The moment
the complaint is filed, it is subject to review under § 1915(e)(2). If the
complaint falls within the requirements of § 1915(e)(2) when filed, it must be
dismissed.
In Re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997)(articulating how
district courts should apply the PLRA). Plaintiff’s motion to amend his complaint (D.E. 5)
is DENIED.
Plaintiff Erby alleges that his right to a speedy trial is being violated. (D.E. 1
at 3.) He alleges that he is being maliciously prosecuted. (Id.) Plaintiff alleges that
Defendants are denying him due process without a logical factual explanation of their
involvement in his pending prosecution or any delays in the prosecution.
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
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(2)
such relief.
seeks monetary relief from a defendant who is immune from
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,
___ U.S. ___, ___, 129 S. Ct. 1937, 1949-50 (2009), and in Bell Atl. 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,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, 129 S. Ct. at 1950; 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. See Neitzke [v.
Williams], 490 U.S. [319,] 325, 109 S. Ct. at 1827 [(1989)]. Any complaint that is legally
frivolous would ipso facto fail to state a claim upon which relief can be granted. See id. at
328-29, 109 S. Ct. 1827.” Hill, 630 F.3d at 470.
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
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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, No. 092259, 2011 WL 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. 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.”).
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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).
Plaintiff cannot sue the Federal Bureau of Prisons and the Federal Medical
Center at Springfield, Illinois, under 42 U.S.C. § 1983, which provides a right of action
against state officials who violate a plaintiff's rights under the U.S. Constitution or federal
law. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988). Because of the state action requirement, the federal government and its officials are
not subject to suit under 42 U.S.C. § 1983. Ana Leon T. v. Fed. Reserve Bank, 823 F.2d 928,
931 (6th Cir. 1987). Because Defendants act under color of federal law, they cannot be sued
under 1983.
Section 1983 will not support a claim based upon a theory of respondeat
superior alone. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984). A plaintiff must allege that a defendant official was personally
involved in the unconstitutional activity of a subordinate in order to state a claim against such
a defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982). A failure to
supervise, control or train an individual is not actionable “unless the supervisor ‘either
encouraged the specific incident of misconduct or in some other way directly participated in
it.’” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “At a minimum a plaintiff must
show that the official least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Hays v. Jefferson Co., Ky, 668 F.2d 869,
874 (6th Cir. 1982). It is clear that Plaintiff sues Defendants Oldham because of his
supervisory capacity at the Jail where Plaintiff is imprisoned.
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Additionally, Plaintiff has no claim against Defendant Oldham under § 1983
arising from his current confinement. For a state prisoner who challenges “the very fact or
duration of his physical imprisonment and [who] seeks . . . immediate release or a speedier
release from that imprisonment, [the] sole federal remedy is a writ of habeas corpus.”
Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985)(quoting Preiser v. Rodriguez, 411 U.S.
474, 500 (1973)). Erby seeks relief that is only available through a habeas petition, not under
section 1983.1
Any claims arising from Plaintiff’s pending prosecution are barred by Heck v.
Humphrey:
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 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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote omitted).
See also Schilling v. White, 58 F.3d 1081, 1086 (1995)(footnotes omitted). 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 state court order directing his confinement unless and until
1
Although Plaintiff could challenge the delay in his release in a
petition pursuant to 28 U.S.C. § 2254, this Court declines to construe this action
as a § 2254 petition.
A habeas petitioner must first exhaust available state
remedies before requesting relief under § 2254.
See 28 U.S.C. § 2254(b)(1);
Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 519
(1982); Rule 4, Rules Governing Section 2254 Cases in the United States District
Courts. There is no indication Plaintiff has exhausted his state remedies. In
particular, prisoners who are dissatisfied with a decision of the Tennessee Board
of Probation and Parole may obtain judicial review through a petition for
common-law writ of certiorari filed in the Davidson County Chancery Court.
Beaucamp v. Tennessee Bd. of Paroles, 2001 WL 1545504, at *1 (Tenn. Ct. App. Dec.
5, 2001).
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any prosecution is terminated in his favor, his conviction is set aside, or the confinement is
declared illegal. Heck, 512 U.S. at 481-82; Schilling, 58 F.3d at 1086. Cf. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973)(whenever the relief sought is release from prison, the
only remedy is through a habeas petition, not a § 1983 complaint).
Here, Heck applies to bar Plaintiff's claims arising from his pending criminal
prosecution. Plaintiff has not yet been to trial. Any claims will accrue if he is found not
guilty. If Plaintiff is found guilty, he must have the conviction overturned on direct appeal
or via collateral attack before any claims can accrue.
The Court expressly declines to address the complaint as a habeas petition
because Erby cannot demonstrate that he has exhausted his state remedies or seeks to
overturn a conviction. A habeas petitioner must first exhaust available state remedies before
requesting relief under § 2254. See, e.g., Granberry v. Greer, 481 U.S. 129 (1987); Rose v.
Lundy, 455 U.S. 509 (1982). See also Rule 4, Rules Governing Section 2254 Cases in the
United States District Courts. A petitioner has failed to exhaust his available state remedies
if he has the opportunity to raise his claim by any available state procedure. Preiser, 411 U.S.
at 477, 489-90. Moreover, to exhaust these state remedies, the applicant must have presented
the very issue on which he seeks relief from the federal courts to the courts of the state that
he claims is wrongfully confining him. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Rust
v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Therefore, the Court DISMISSES the complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1). Judgment shall be entered for Defendants.
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.
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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 non-frivolous issue. Id. at
445-46. 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.
The final matter to be addressed is the assessment of a filing fee if Plaintiff
appeals the dismissal of this case. In McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th
Cir. 1997), the Sixth Circuit set out specific procedures for implementing the PLRA.
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 dismissal2 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 the district
court’s ruling on appeal, whichever is later.
2
Plaintiff also filed Erby v. Oldham, et al., No. 10-2909-JDT-cgc (W.D.
Tenn. Sept. 2, 2011), a § 1983 complaint dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim.
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IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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