Willis v. Reading et al

Filing 11

ORDER DISMISSING COMPLAINT, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 2/12/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOE WILLIS,
Plaintiff,
VS.
FREDRICK READING, ET AL.,
Defendants.

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No. 14-2362-JDT-dkv

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

On May 15, 2014, Plaintiff Joe Willis (“Willis”), an inmate at the Shelby County
Criminal Justice Complex in Memphis, Tennessee, filed a pro se complaint pursuant to 42
U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2). In an
order issued May 16, 2014, 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. 46.) The Clerk shall record the Defendants as Memphis Police
Officer Fredrick Reading, the City of Memphis,1 and the State of Tennessee.
On June 11, 2014, Plaintiff filed an amendment to his complaint (as of right) that added
Grace Burton, MPD Case Coordinator and Homicide Detective, as a Defendant. (ECF No. 5.)
The amendment is meant to supplement, rather than to supersede, the original complaint.

1

The Court construes the allegations against the Memphis Police Department (“MPD”)
as an attempt to assert a claim against the City of Memphis. See generally Hafo v. Melo, 502
U.S. 21 (1991).

I. The Complaint and Amended Complaint
On September 19, 2014, Willis filed various documents pertaining to his then-pending
criminal case, including a transcript of the preliminary hearing, the police report, and witness
statements. (ECF No. 6.)
Count 1 of the complaint, asserted against Defendant Reading, alleges that, on June 15,
2013, a neighbor dropped Willis off at the Silver Spoon, a sports bar, around 1:00 a.m. Willis
paid the cover charge and sat at the bar. At 2:30 a.m., it was announced that the club would be
closing in thirty minutes. Willis walked outside and made some telephone calls in an attempt to
find somebody to give him a ride home. Willis was unable to reach anybody. He then walked to
the Enclave Apartments, where his barber, Blue, lives. Upon arriving, Willis did not see Blue’s
car in the parking lot. He then headed toward the Hickory Point Apartments, where a friend
named Donald lived. (ECF No. 1 at 3-4.)
Willis crossed Hickory Hill Road and cut through the Fox Meadow Apartments to get to
the Hickory Point Apartments. While walking through the Fox Meadow Apartments, Willis
went behind a building to urinate. Willis heard a voice say, “Don’t move!.” When he looked to
see who had spoken, he was shot in his right side. Willis turned and jumped behind a patio for
cover. It was dark, and Willis did not know who had shot him. Defendant Reading and his
partner, Officer Kimberly Shannon, who is not a party to this action, did not identify themselves
as police officers. Defendant Reading allegedly fired another shot at Willis, shattering a glass
door. Willis ran inside the apartment, and he heard Reading suggest that the officers run around
to the front and cut him off. Willis turned around and, after looking around to see that the
officers had left, he jumped back over the patio wall. Willis ran around the building, through the

2

parking lot, and back across Hickory Hill Road. The officers were chasing Willis, and he heard
someone say, “Stop! Stop!” (Id. at 4-5.)
Willis ran to various places and apparently lost sight of the officers who were pursuing
him.

He eventually arrived at the apartment of a friend, who took him to a hospital in

Southaven, Mississippi. (Id. at 6-7.)2 Willis was questioned by two DeSoto County Sheriff’s
deputies and a nurse. The deputies told the hospital staff to air-lift Willis to the Regional
Medical Center at Memphis (“The Med”), where he could be treated. The staff was informed
that MPD officers would be waiting to detain Willis. Upon arrival at The Med, Willis had
surgery and his wounds were bandaged. (Id. at 7-8.)
When Willis awakened, he was chained to the hospital bed. He asked an officer what had
happened, and the officer replied that Plaintiff had been in the news all morning. Plaintiff stayed
in the hospital for five days and, upon his release, was booked into the Jail. (Id.)
Defendant Reading is sued for allegedly shooting Willis while Willis was unarmed and
facing away from Reading, in violation of Willis’s rights under the Fourth, Fifth, Sixth, Eighth
and Fourteenth Amendments. (Id. at 8-9.) Willis seeks compensatory and punitive damages.
(Id. at 9.)
In Count 2, Willis has sued the City of Memphis because, on June 15, 2013, Defendant
Burton filed an affidavit of complaint that accused Willis of committing two counts of
aggravated burglary, theft of property under $500, and evading arrest. (Id. at 10.) Willis alleges
that affidavit was false because crime scene investigators searched 2939 Wedge Cove, the
residence into which Willis ran after fleeing from police, and found no latent fingerprints and no

2

Willis alleges that another person he had encountered earlier offered to call 911, but
Willis declined, explaining that he had outstanding warrants. (Id. at 6.)
3

shotgun. Officers found a woman’s brown purse and a plastic jar in the back yard of 301
Oakland Hills Cove, but no latent prints were found on the items. (Id.)
Defendant Burton took statements from a victim, witnesses, and police officers. Reading
was interviewed and questioned by detectives from the MPD’s Inspection Services Bureau.
Burton allegedly contacted the District Attorney General’s Office, which declined to prosecute
the officers involved in Willis’s shooting. The shooting was determined to have been selfdefense because Willis had allegedly pointed a shotgun at the officers. (Id. at 10-11.)
During an appearance at the Shelby County General Sessions Court on July 13, 2013,
Willis asked his attorney, Assistant Public Defender Patrick A. Newport, for copies of his
affidavit of complaint and arrest report. Newport got a copy of the affidavit of complaint.
Newport attempted to get a copy of the arrest report from central records and was told that they
would not release any information to him concerning Willis’s case. (Id. at 11.) Willis wrote to
the General Sessions Supervisor, Nelle Pallme, who is not a party to this action, regarding the
arrest report. In a letter dated August 12, 2013, Pallme advised Willis that his arrest report was
unavailable because it involved an allegation of an officer discharging his weapon. At that time,
Willis stopped asking for the arrest report. (Id. at 11-12.)
On August 9, 2013, Willis or his family retained Timothy Wilson to represent him on the
criminal charges. At the preliminary hearing, the arresting officers testified that they did not
have the shotgun that was alleged to have been in Willis’s possession or the items that Willis was
alleged to have stolen from the residence. Despite the absence of evidence, probable cause was
found because the officers testified that Willis had pointed a shotgun at them. (Id. at 12.) A
grand jury indicted Willis on November 19, 2013, and he was arraigned on December 4, 2013.
On December 12, 2013, Willis’s court-appointed attorney, C.J. Barnes, provided him with the

4

discovery, including the arrest report, which had been withheld for six months. (Id.) The arrest
report had allegedly been altered with the handwritten notation, “stole a handbag and jar of coins
during burglary value $300.” (Id. at 13.)
According to Willis, the MPD did not properly train Defendant Reading “because what
[Reading] did on June 15, 2013 was reckless and unprofessional towards the Plaintiff.” (Id.)
The MPD allegedly conspired with Reading in violation of Willis’s rights under the Fourth,
Fifth, Sixth and Fourteenth Amendments. (Id.) By charging Willis with a crime without
probable cause, the MPD allegedly violated Willis’s rights under the Fourth, Fifth, Sixth and
Fourteenth Amendments and engaged in malicious prosecution. (Id.) The MPD also allegedly
violated Willis’s rights under the Sixth and Fourteenth Amendments by withholding the arrest
report for six months. (Id.)
In Count 3, Willis is suing the City of Memphis because Defendant Reading allegedly
used excessive force by shooting an unarmed citizen without probable cause.

(Id.)

Had

Defendant Reading been properly trained, he allegedly would have handled the situation
differently. (Id. at 16.)
The complaint seeks one million dollars in compensatory damages and one million
dollars in punitive damages. (Id. at 14, 16.)
In his amendment, which was filed on June 11, 2014, Willis added a claim against
Defendant Burton, the affiant on the affidavit of complaint that was used to obtain the issuance
of an arrest warrant. (ECF No. 5 at PageID 44.) The affidavit of complaint stated as follows:
On June 15, 2013, a male was found inside 2939 Wedge Cove as the result of a
burglar alarm. Officers approached 2939 Wedge Cove and saw a male fleeing
from inside 2939 Wedge Cove at the patio entrance. The male turned and pointed
a shotgun at two uniformed Memphis Police Officers and one of the officers fired
at the male. The male fled the scene and officers gave chase. Along the path that
the suspect took running from officers he shed his clothing and other items, to
5

include items taken from the burglary of 2939 Wedge Cove. Officers continued
to pursue this suspect and while searching the area for the suspect, officers
received a 911 call from a witness that advised a male approached him and said
that he had been shot. The male used the witness’s phone to call his mother.
Officers then spoke with the mother and she advised that she talked to her son,
Joe Willis. Willis showed up at a Mississippi hospital, with a gunshot wound and
identified himself to hospital personnel as Joe Willis. Willis was flown to the
MED a short time later and arrested.
(ECF No. 1-1 at PageID 23.)
Willis contends that Burton fabricated the information in the affidavit for the purpose of
persuading the magistrate or clerk to sign the complaint and arrest warrant. The falsity of
Burton’s representations allegedly is demonstrated by the testimony at the preliminary hearing,
where the victim testified that she could not identify Willis.

(ECF No. 5 at PageID 44.)

Defendant Reading testified that he saw Willis holding a shotgun but did not see him in
possession of the purse or the bag of coins that he was charged with stealing. The other officer
also did not see Willis with the stolen items. (Id. at PageID 45.) Willis contends that many
police officers make false allegations that suspects resisted arrest or assaulted them. (Id. at
PageID 46-47.) Willis claims that Burton’s actions violated the Fourth, Fifth, Sixth, Eighth and
Fourteenth Amendments. (Id. at PageID 44.)
Willis seeks $150,000 in compensatory damages and $150,000 in punitive damages
against Defendant Burton. (Id. at PageID 47.)
By way of background, on November 19, 2013, a grand jury in Shelby County,
Tennessee, returned an indictment charging Willis with two counts of aggravated assault, one
count of aggravated burglary, one count of theft of property in the amount of $500 or less, and
one count of evading arrest. See http://jssi.shelbycountytn.gov (Indictment # 13 05650). A jury
found Willis guilty on all counts on June 25, 2015; the case is currently on appeal. Id.

6

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)

seeks monetary relief from a defendant who is immune from such

relief.
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 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.”).

7

“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. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 09-2259, 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,

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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.”).
Willis filed his 19-page, handwritten complaint pursuant to 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 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).
Willis’s claims against Defendants Reading and Burton in their official capacities are
asserted against the City of Memphis, which is also a named party in this case. When a § 1983
claim is made against a municipality, a court must analyze two distinct issues: (1) whether the
plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the municipality

9

is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120
(1992). The second issue is dispositive of Willis’s claims against the City of Memphis.
A local government “cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Searcy v. City of Dayton, 38
F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A
municipality cannot be held responsible for a constitutional deprivation unless there is a direct
causal link between a municipal policy or custom and the alleged constitutional deprivation.
Monell, 436 U.S. at 691-92; Deaton v. Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir.
1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or
custom, (2) connect the policy to the municipality, and (3) show that his particular injury was
incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003)
(citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “Where a government
‘custom has not received formal approval through the body’s official decisionmaking channels,’
such a custom may still be the subject of a § 1983 suit.” Alkire, 330 F.3d at 815 (quoting Monell,
436 U.S. at 690-91). The policy or custom “must be ‘the moving force of the constitutional
violation’ in order to establish the liability of a government body under § 1983.” Searcy, 38 F.3d
at 286 (quoting Polk Co. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)). “[T]he
touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485
U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)) (emphasis
in original).

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Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the
municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, Civil
Action No. 3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v.
Ankrom, No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v.
City of Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub
v. Correctional Med. Servs., Inc., No. 06- 13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15,
2008) (denying motion to dismiss where complaint contained conclusory allegations of a custom
or practice); Cleary v. County of Macomb, No. 06- 15505, 2007 WL 2669102, at *20 (E.D.
Mich. Sept. 6, 2007) (same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156,
at *8 (E.D. Mich. Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006
WL 1421099, at *3 (W.D. Tenn. June 15, 2005).
Here, the complaint alleges that the City of Memphis is liable because it makes hiring
policy and training policy for the MPD. (ECF No. 1 at 16.) Willis alleges that, “had [Defendant
Reading] been adaquately [sic] trained he would’ve conducted the situation different, but since
he didn’t, that placed liability on him, and his municipal as well for the pattern of constitutional
violations.” (Id.) This allegation is entirely conclusory.
Willis has no claim against the State of Tennessee under § 1983.

The Eleventh

Amendment to the United States Constitution provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has been construed to

11

prohibit citizens from suing their own states in federal court. Welch v. Tex. Dep’t of Highways &
Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Employees of Dep’t of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health &
Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection & Advocacy v. Stewart,
131 S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity at its pleasure, and in
some circumstances Congress may abrogate it by appropriate legislation. But absent waiver or
valid abrogation, federal courts may not entertain a private person’s suit against a State.”
(citation and footnote omitted)). By its terms, the Eleventh Amendment bars all suits, regardless
of the relief sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its sovereign
immunity. Tenn. Code Ann. § 20-13-102(a). Moreover, a state is not a person within the
meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613,
617 (2002); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Willis alleges that Defendant Reading subjected him to excessive force by shooting him
while Willis was unarmed and facing away from Reading, in violation of the Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments. (ECF No. 1 at 8-9.) However, Willis was convicted on
the two counts of aggravated assault with which he was charged, the factual premise of which
was that he pointed a shotgun at Reading and his partner. If Willis were to succeed on his claim
that he was shot while unarmed and facing away from Reading, it would call into question the
validity of those convictions.

Therefore, the excessive force claim is barred by Heck v.

Humphrey, in which the Supreme Court held:
[I]n 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
12

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). Willis 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. None of those events has happened in this case.
The complaint does not state a valid claim against any defendant under the Fifth,3 Sixth4
and Eighth Amendments.5

3

The Fifth Amendment provides that “[n]o person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.” U.S. Const. amend. V. False arrest and
malicious prosecution claims are properly analyzed under the Fourth Amendment. Albright v.
Oliver, 510 U.S. 266, 274-75 (1994).
4

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been previously ascertained by
law, and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. None of Plaintiff’s
allegations implicate the Sixth Amendment.
13

The complaint does not state a valid claim for false arrest against Defendant Burton
arising from her signature on the affidavit of complaint. A Fourth Amendment claim for false
arrest requires an arrest without probable cause. See, e.g., Parsons v. City of Pontiac, 533 F.3d
492, 500 (6th Cir. 2008); Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003)
(“Today it is well established that an arrest without probable cause violates the Fourth
Amendment.”). Probable cause exists where a suspect is arrested pursuant to a facially valid
warrant6 or where “‘facts and circumstances within the officer’s knowledge . . . are sufficient to
warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing or is about to commit an offense.” Crockett, 316
F.3d at 580 (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)); see also Wolfe v. Perry,
412 F.3d 707, 717 (6th Cir. 2005) (“probable cause necessary to justify an arrest is defined as
‘whether at that moment [of the arrest] the facts and circumstances within [the officers’]
knowledge and of which they had reasonably trustworthy information were sufficient to warrant
a prudent man in believing that the [arrestee] had committed or was committing an offense’”
(quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (alterations in original)); Gardenhire v. Schubert,
205 F.3d 303, 315 (6th Cir. 2000).
The amended complaint alleges that the falsity of the statements in the affidavit of
complaint are demonstrated by the testimony at the preliminary hearing, where the victim

5

The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
Claims that an arresting officer used excessive force are properly analyzed under the Fourth
Amendment. See Graham v. Connor, 490 U.S. 386, 397-99 (1989).
6

Baker v. McCollan, 443 U.S. 137, 142-46 (1979) (arrest and detention for three days
under warrant issued in plaintiff’s name but meant for his brother did not state a Fourth
Amendment claim); see Masters v. Crouch, 872 F.2d 1248, 1252-53 (6th Cir. 1989) (dismissing
claim where warrant issued in error).
14

testified that she could not identify Willis. (ECF No. 5 at PageID 44.) The preliminary hearing
testimony was not available to Defendant Burton when she signed the affidavit of complaint;
therefore, the evidence introduced at that hearing cannot be used to support Willis’s claim
against Burton.
The police report and contemporaneous witness statements provide ample support for
Defendant Burton’s affidavit. On June 15, 2013, Defendant Burton took the statements of
Officer Kimberly Shannon, Defendant Reading’s partner, and the victim, Carolyn McCollum.
McCollum advised Burton that she was away from home when she got an email from her alarm
company that motion had been detected at “door 5.” (ECF No. 6 at PageID 117.) After
checking with her boyfriend that he was not at the house and had not set the alarm, McCollum
drove to her house. She stated that, “As I was getting out of my car I looked up and could see
the shadow of someone in the upstairs of my apartment.” (Id.) McCollum flagged down the
police officers who were responding to the alarm call and told them that someone was in her
apartment. (Id.) McCollum stated that, “[o]nce we got back to my apartment the officers got out
with their flashlight and Wycell[, the father of McCollum’s child,] told them that he heard
something in the back in the field. The officers ran toward the back and I then heard the officers
say don’t move and then two shots.” (Id.) In response to whether anything had been taken from
her house, McCollum replied, “Micheal [sic] Kors brown and beige purse that the officers found
by a ditch and my son’s piggy bank containing assorted coins.” (Id.) McCollum told the police
that she did not know the person who was responsible for the burglary. (Id. at PageID 116.)
Nobody had permission to be present in her home when she was not there. (Id. at PageID 117.)

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Defendant Burton also took the statement of Officer Shannon, who stated that, on June
15, 2013, she and Defendant Reading responded to an alarm call. (ECF No. 6 at PageID 11112.) Shannon provided the following description of the events:
I got the call at 0305. I was in the area of Getwell and Mallory and so was Officer
Reading. We trailed each other to the call. GPS lead us straight to Wedge Street
but when we got there, there was a gate, just as we were turning around the victim
flagged us down. At the same time the dispatcher was upgrading the call,
advising that the victim stated someone was still in the house. After, Officer
Reading spoke with the victim he made his u turn and I followed him into the
complex. Apparently, we passed the street that the victim’s house was on, but the
victim who was following us started flashing her lights. So, we get turned around
and Officer Reading turned around first and we went down the street that the
victim said her home was on. We go to where the victim’s home was located at.
Officer Reading gets out of his vehicle and I get out of my vehicle, but I’m telling
the victim’s to stay back. The victim advised they still hear him in the house. I
kind of heard some noises cause I was parked next to the apartment. Officer
Reading goes to the rear of the apartments and I started going to the rear of the
apartments. We were both outside the patio fence and that’s when we see him
come out the patio door with a shotgun in his hands. I was two or three yards
from Officer Reading at an angle. I was about six feet from the suspect as he is
exiting the patio door. Officer Reading gives the suspect verbal commands to
stop and the suspect started running southbound jumping over the fences. The
whole time Officer Reading was giving verbal commands. We are chasing and
when he gets to apartment 2945, he tries to open the patio door. The door didn’t
open so he tries the door and turns real quick and points the shotgun at Officer
Reading. Officer Reading is about eight to nine feet away from the suspect.
Officer Reading continued to give the suspect commands, he did not comply and
Officer Reading fired two shots. The glass breaks and the suspect runs through.
That’s when I doubled back and I went to the front of the apartments where I see
the suspect exiting the front of 2945. He runs eastbound across the field toward
Hickory Hill. I loose [sic] sight of him because of a privacy fence. Once he
passed the privacy fence I can’t see him anymore. Officer Reading and I continue
to search the area for him on foot. I put out a broadcast as I was chasing him. So,
a lot of cars were in the area. A couple minutes later I see the suspect again
running next to the Nursing Home on Hickory Hill. He was on the other side of
the wrought iron fence. He kind of runs northbound and we loose [sic] sight of
him again, that’s the last I saw of him. After that, I could hear officers on the
radio saying that they located a hat, glove and the red shirt. Lt. Wong arrived and
told me to go back to the original scene.

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(Id. at PageID 112-13.)7 A supplement to the police report by Sergeant Clarence Mabon states
that after Willis fled, “[o]ther officers arrived in the area and noticed articles (purse, piggy bank,
t-shirt with hole) in the area that the suspect had dropped.” (Id. at PageID 75.)
The information available to Defendant Burton when she signed her affidavit was more
than sufficient to justify the charges against Willis. Willis was charged with two counts of
aggravated assault because he pointed a shotgun in the direction of Officers Reading and
Shannon. Under Tennessee law, aggravated assault is an act that intentionally or knowingly
“causes another to reasonably fear imminent bodily injury” involving “the use or display of a
deadly weapon.”

Tenn. Code Ann. § 39-13-101(a)(2).

“A person commits burglary who,

without the effective consent of the property owner . . . [e]nters a building . . . with intent to
commit a felony, theft or assault.” Id. § 39-14-402(a)(1). Aggravated burglary is a burglary
involving a habitation.

Id. § 39-14-403(a).

Willis was charged with aggravated burglary

because he broke into McCollum’s apartment with the intention to commit a theft. Willis was
also charged with theft of property valued at less than $500 and with resisting arrest.
For the foregoing reasons, Willis’s complaint is subject to dismissal in its entirety for
failure to state a claim on which relief may 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
7

Defendant Reading also gave a statement to two detectives on June 16, 2013, which was
transcribed on September 19, 2013. (Id. at PageID 104-10.) It is unclear whether this statement
was available to Defendant Burton when she signed her affidavit.
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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 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 Willis’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
Willis 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.

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V. Conclusion
The Court DISMISSES Willis’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)-(iii) and 1915A(b(1)-(2). Leave to amend
is DENIED because the deficiencies in Willis’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 Willis would
not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Willis
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, Willis
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 Willis, 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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