Beaty v. Morris et al

Filing 4

ORDER DISMISSING COMPLAINT, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 11/2/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHARLES OTIS BEATY, JR.,
Plaintiff,
VS.
JEFFERY MORRIS, ET AL.,
Defendants.

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No. 13-2999-JDT-dkv

ORDER DISMISSING COMPLAINT,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On December 19, 2013, Plaintiff Charles Otis Beaty, Jr. (“Beaty”), who at the time
of filing was incarcerated at Shelby County Criminal Justice Complex in Memphis,
Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed
in forma pauperis. (ECF Nos. 1 & 2). In an order issued December 19, 2013, the Court
granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to
the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 3) The
Clerk shall record the Defendants as Jeffery Morris and Roslyn Parker.
I. The Complaint
Beaty’s complaint alleges that the criminal charges against him for forgery and
rape of a child were based on false information. (ECF No. 1-1.) Beaty alleges that he
was falsely incarcerated for forging checks at Save-a-Lot even though there was evidence

that another person wrote the checks. (Id. at 1.) Beaty further alleges that Defendant
Parker “put a rape charge on me” for the rape of her child even though she knows he did
not do it. (Id.) Beaty’s cousin took a video of individuals, including Defendant Parker,
discussing the lies and manipulation to set up Beaty for the rape charge. (Id. at 2). The
video was given to Beaty’s attorney, but Beaty has not heard from his attorney regarding
the video. (Id.) Beaty contends that evidence is available to prove his innocence, but he
is still incarcerated. (Id.)
Beaty seeks to be released and to be compensated for his pain and suffering caused
by his incarceration. (ECF No. 1 at 3.)
II. Analysis
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)
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 court applies the standards under Federal Rules of Civil Procedure
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). 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
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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, 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
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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.
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. Sec’y 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.”).
Beaty filed his complaint on the court-supplied form for actions under 42 U.S.C.
§ 1983. Section 1983 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
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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 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).
Beaty’s complaint contains no factual allegations against Defendant Morris.
When a complaint fails to allege any action by a defendant, it necessarily fails to “state a
claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570.
Beaty cannot sue Defendants Morris or Parker under 42 U.S.C. § 1983. “A § 1983
plaintiff may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d 552, 567
(6th Cir. 1999). Thus, “[i]n order to be subject to suit under § 1983 claim, defendant's
actions must be fairly attributable to the state.” Collyer v. Darling, 98 F.3d 211, 231-32
(6th Cir. 1997). The complaint does not allege that Defendants Morris or Parker were
state actors for purposes of § 1983.
Any claims arising from Beaty’s conviction are barred by Heck v. Humphrey, in
which the Supreme Court held:
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
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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. 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.
512 U.S. 477, 486-87 (1994) (footnotes omitted). See also Schilling v. White, 58 F.3d
1081, 1086 (6th Cir. 1995) (same) (footnotes omitted). Beaty 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 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.
Here, Heck applies to bar Beaty's claims arising from his criminal prosecution and
conviction. Beaty must have any 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
Beaty cannot demonstrate that he has exhausted his state remedies. A habeas petitioner
must first exhaust available state remedies before requesting relief under § 2254. See,
e.g., Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509,
515-16 (1982). See also Rule 4, Rules Governing § 2254 Cases. A petitioner has failed
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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).
For all of the foregoing reasons, Beaty’s complaint is subject to dismissal in its
entirety for failure to state a claim on which relief can be granted.
III. Standard for Leave to Amend
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., No. 12-1403, 2013 WL 646489, at
*1 (1st Cir. Feb. 22, 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. Brown, 2013 WL 646489, at *1; 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 the plaintiff cannot prevail and that amending the complaint would be futile,
then a sua sponte dismissal may stand.”); Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002) (“in forma pauperis plaintiffs who file complaints subject to dismissal
under Rule 12(b)(6) should receive leave to amend unless amendment would be
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inequitable or futile”); 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, because the deficiencies in Beaty’s complaint cannot
be cured, leave to amend is not warranted.
IV. Appeal Issues
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal
by Plaintiff 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). The test 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.
V. Conclusion
The Court DISMISSES Beaty’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 because the deficiencies in Beaty’s complaint cannot be cured. It is
also 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.
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The Court must also address the assessment of the $505 appellate filing fee if
Plaintiff nevertheless appeals the dismissal of this case. A certification that an appeal is
not taken in good faith does not affect an indigent prisoner plaintiff’s ability to take
advantage of the installment procedures contained in § 1915(b).

See McGore v.

Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially overruled on other
grounds by LaFountain, 716 F.3d at 951. McGore sets out specific procedures for
implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the 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 § 1915(a)(2) by
filing an updated in forma pauperis affidavit and a current, certified copy of his inmate
trust account for the six months immediately preceding the filing of the notice of appeal.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is
the first dismissal of one of his cases as frivolous or for failure to state a claim. This
“strike” shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct.
1759, 1763-64 (2015).
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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