Jones v. Beach et al

Filing 5

ORDER DENYING APPOINTMENT OF COUNSEL, DISMISSING COMPLAINT, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 11/13/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KEVIN LASHON JONES,
Plaintiff,
VS.
MICHAEL BEACH, ET AL.,
Defendants.

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No. 14-2593-JDT-tmp

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

On July 31, 2014, Plaintiff Kevin Lashon Jones (“Jones”), who is currently an inmate at
the Hardeman County Correctional Facility (“HCCF”) in Whiteville, 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.) The complaint addresses Plaintiff’s previous confinement at the Shelby
County Correctional Center in Memphis, Tennessee. The Court subsequently issued an order
granting leave to proceed in forma pauperis and assessing 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 Correctional Officers Michael Beach and Charles Harts and
Shelby County.1

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The Court construes the allegations against the Shelby County Division of Corrections
(“SCDC”) as an attempt to assert a claim against Shelby County. The Clerk is directed to
MODIFY the docket to remove the SCDC as a defendant and add Shelby County.

I. The Complaint
The complaint alleges that on March 20, 2013, Jones was exiting the shower in
handcuffs, escorted by Defendants Beach and Harts. (ECF No. 1 at 2.) Defendant Beach told
Jones that his recreation time was up. (Id.) Jones alleges that, because he was housed in
administrative segregation, he was entitled to ninety minutes of recreation. (Id.) When Jones
advised the officers of that fact, Defendant Harts grabbed Jones, slammed him to the ground and
proceeded to beat and kick him. (Id.) Jones was then placed in his cell. (Id.)2
Jones seeks the filing of criminal charges against Beach and Harts. He also seeks money
damages, unspecified injunctive relief, and to speak with his attorney. (Id. at 4.)
II. Motion to Appoint Counsel
The Court construes Jones’s request to speak with his attorney as a request for
appointment of counsel.

Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an

attorney to represent any person unable to afford counsel.” However, “[t]he appointment of
counsel in a civil proceeding is not a constitutional right.” Lanier v. Bryant, 332 F.3d 999, 1006
(6th Cir. 2003); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (“[T]he
plaintiffs were not entitled to have counsel appointed because this is a civil lawsuit.”); Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993) (no constitutional right to counsel in a civil case);
Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993) (“There is no constitutional or . . . statutory
right to counsel in federal civil cases . . . .”). Appointment of counsel is “a privilege that is
justified only by exceptional circumstances.” Lavado, 992 F.2d at 606 (internal quotation marks
and citation omitted). “In determining whether ‘exceptional circumstances’ exist, courts have
examined the type of case and the abilities of the plaintiff to represent himself. This generally
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Plaintiff added “(see attached sheets)” at the end of the section for his Statement of
Claim. However, the Clerk received only the form complaint; no other pages were attached.
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involves a determination of the complexity of the factual and legal issues involved.” Id. at 606
(internal quotation marks and citations omitted). Appointment of counsel is not appropriate
when a pro se litigant’s claims are frivolous or when his chances of success are extremely slim.
Id. (citing Mars v. Hanberry, 752 F.2d 254, 256 (6th Cir. 1985)); see also Cleary v. Mukasey,
307 F. App’x 963, 965 (6th Cir. 2009) (same).3
Jones has not satisfied his burden of demonstrating that the Court should exercise its
discretion to appoint counsel in this case. Nothing in Jones’s complaint serves to distinguish this
case from the many other cases filed by pro se prisoners who are not trained attorneys. The
request for appointment of counsel is DENIED.
III. 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

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These factors are important, because § 1915(e)(1) “does not authorize the federal courts
to make coercive appointments of counsel” to represent indigent civil litigants. Mallard v.
United States Dist. Ct., 490 U.S. 296, 310 (1989).
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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, 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,

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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,
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.”).
Jones 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 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.
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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).
The complaint does not assert a valid claim against Shelby County. When a § 1983 claim
is made against a municipality, the court must analyze two distinct issues: (1) whether plaintiff’s
harm was caused by a constitutional violation; and (2) if so, whether the municipality is
responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).
The second issue is dispositive of Jones’s claim against Shelby County.
A local government “cannot be held liable under 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); 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
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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)).
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). The complaint does not allege that Jones
suffered any injury arising from an unconstitutional policy or custom of Shelby County.
Any § 1983 claims against Defendants Beach and Harts arising out of the alleged assault
are time barred. In this case, the complaint filed by Jones is for an alleged assault occurring on
March 20, 2013, and the complaint is signed and dated May 24, 2013. (ECF No. 1.) Jones

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appears to be reusing the complaint he filed in a previous case, which has the identical complaint
form, including signature date. Jones v. Beach., No. 2:13-cv-02366-JDT-dkv (W.D. Tenn. filed
May 30, 2013) (Compl., ECF No. 1). The Court issued an order on July 8, 2014, dismissing that
complaint for lack of prosecution. Id. (Order Granting Mot. to Dismiss, ECF No. 22.)
The statute of limitations for a § 1983 action is the “state statute of limitations applicable
to personal injury actions under the law of the state in which the § 1983 claim arises.” Eidson v.
Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007); see also Wilson v. Garcia,
471 U.S. 261, 275-76 (1985) (same). The limitations period for § 1983 actions arising in
Tennessee is the one-year limitations provision found in Tennessee Code Annotated
§ 8-3-104(a). Roberson v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005); Hughes v. Vanderbilt Univ.,
215 F.3d 543, 547 (6th Cir. 2000); Berndt v. Tenn., 796 F.2d 879, 883 (6th Cir. 1986). Jones’s
earlier filed case does not toll the current complaint because the Sixth Circuit has consistently
held that actions that were dismissed without prejudice are treated as though the suit had never
been brought. Shepherd v. Wellman, 313 F.3d 963, 971 (6th Cir. 2002); Bomer v. Ribicoff, 304
F.2d 427, 429 (6th Cir. 1962). Accordingly, Jones’s claims concerning the alleged assault from
March 20, 2013, are barred by the one-year statute of limitations.
For the foregoing reasons, Jones’s complaint is subject to dismissal in its entirety for
failure to state a claim on which relief can be granted.
IV. 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

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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 Jones’s complaint cannot be cured, leave to amend is not
warranted.
V. Conclusion
The Court DISMISSES Jones’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.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Jones 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.

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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. Therefore, it is 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 Jones
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, Jones
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 Jones, this is the first
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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