Smith v. Vines et al
Filing
23
ORDER DENYING MOTION FOR DEFAULT (ECF No. 11) ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL (ECF Nos. 17 & 19) ORDER DISMISSING CASE CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 11 17 19 . Signed by Judge James D. Todd on 5/28/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WARREN P. SMITH,
Plaintiff,
v.
INVESTIGATOR B. VINES, et al.,
Defendants.
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No. 2:14-cv-02607-JDT-cgc
ORDER DENYING MOTION FOR DEFAULT
(ECF No. 11)
ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL
(ECF Nos. 17 & 19)
ORDER DISMISSING CASE
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On August 5, 2014, Plaintiff Warren P. Smith, booking number 13136262, a pretrial detainee
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 seeking leave to proceed in forma pauperis.
( ECF Nos. 1 & 2.) In an order issued on August 6, 2014, the Court granted leave to proceed in
forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act of 1996
(“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the defendants as the
Investigator B. Vines, Sergeant J.A. Jones, and Shelby County District Attorney General Amy P.
Weirich.1
1
The initial complaint does not names Delores Waugh as a defendant. Plaintiff filed an amended
complaint on March 23, 2015 (ECF No. 14) that names private citizen Waugh as a defendant.
Waugh is the victim of the alleged rape committed by Smith. A witness in a criminal case is
absolutely immune under 42 U.S. C. § 1983 for claims arising from the witness’ testimony. Briscoe
v. LaHue, 460 U.S. 325 (1983). The Clerk is ORDERED to terminate all references to Delores
Waugh on the docket.
On August 15, 2014, Plaintiff filed a supplemental complaint seeking to name his public
defender K. Leslie Mozingo as an additional defendant. (ECF No. 5.) The Clerk is directed to add
K. Leslie Mozingo to the docket as a defendant.
On February 9, 2015, Plaintiff filed a motion for a default judgment. (ECF No. 11.) 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 had 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). Screening of pro se complaints must occur before process issues.
No process issued in this case. Plaintiff’s motion for a default (ECF No. 11) is DENIED.
On April 27 and May 1, 2015, Plaintiff filed motions for appointment of counsel. (ECF Nos.
17 & 19.) Pursuant to 28 U.S.C. 1915(d), the “court may request an attorney to represent any such
person unable to employ counsel.” However, “[t]here is no constitutional or . . . statutory right to
counsel in federal civil cases.” Farmer v. Haas, 990 F. 2d 319, 323 (7th Cir. 1993), and “1915(d)
does not authorize the federal courts to make coercive appointments of counsel” to represent
indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). Generally,
a court will only appoint counsel in exceptional circumstances. Willett v. Wells, 469 F. Supp. 748,
751 (E.D. Tenn. 1977). Although “no comprehensive definition of exceptional circumstances is
practical,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve this issue through a
fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Examining the
pleadings and documents in the file, the Court analyzes the merits of the claims, the complexity of
the case, the pro se litigant’s prior efforts to retain counsel, and his ability to present the claims.
Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent,
753 F.2d 663, 668 (8th Cir. 1985).
2
As a general rule, counsel should be appointed in civil cases only if a litigant has made “a
threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d
Cir. 1989). Plaintiff has not satisfied that standard. Plaintiff’s complaint is to be dismissed. The
motions for appointment of counsel (ECF Nos. 17 & 19) are DENIED.
Plaintiff sues the defendants for false imprisonment on a charge of rape. Plaintiff seeks
money damages. By way of background, a Shelby County grand jury issued Indictment Number
14-01583
on
April
3,
2014,
charging
Smith
with
aggravated
rape.
See
http://jssi.shelbycountytn.gov/. The case is set for trial on August 3, 2015.
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)(i)-(iii).
In assessing whether the complaint in this case states a claim on which relief may be granted,
the Court applies the standards under Federal Rule 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
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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, 891 F.2d 591, 594
(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. 2011) (affirming
dismissal of pro se complaint for failure to comply with “unique pleading requirements” and stating
“a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”) (quoting
Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in original);
Payne v. Secretary of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal
of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court
is required to create Payne’s claim for her”); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) (“District
judges have no obligation to act as counsel or paralegal to pro se litigants.”); Young Bok Song v.
Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts to
ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be
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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.”).
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 has no claim against his public defender. Courts have uniformly held that attorneys
are not state actors who can be sued under § 1983. See Polk County v. Dodson, 454 U.S. 312, 325
(1981) (“[A] public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.”); Deas v. Potts, 547 F.2d
800 (4th Cir. 1976) (“A private attorney who is retained to represent a criminal defendant is not
acting under color of state law, and therefore is not amendable to suit under § 1983.”); Mulligan v.
Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorney who is appointed by the court does
not act under color of state law); Haley v. Walker, 751 F. 2d 284, 285 (8th Cir. 1984) (per curiam)
(attorney appointed by federal court is not a federal officer who can be sued under Bivens).
Plaintiff has no claim against any defendant for false imprisonment. When a prisoner seeks
to challenge the validity or duration of his confinement, his sole remedy is a petition for a writ of
habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Muhammad v. Close, 540
U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity of any confinement or to particulars
affecting its duration are the province of habeas corpus.”). Plaintiff cannot challenge the validity
of his confinement under § 1983, and this Court cannot order his release even if his claims were
meritorious.
Any claim for money damages arising from the allegedly unlawful imprisonment and
pending prosecution of Plaintiff is premature. As the Supreme Court has explained:
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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. 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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnotes omitted). Thus, 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 an order directing his confinement unless and until any prosecution is ended in his
favor, an existing conviction is set aside, or the confinement is declared illegal. Id. at 481-82;
Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995). None of these events has occurred.
Plaintiff cannot sue Defendant Weirich for money damages. Prosecutors are absolutely
immune from suit for actions taken in initiating and pursuing criminal prosecutions because that
conduct is “intimately associated with the judicial phase of the criminal process.” Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976). “A prosecutor’s decision to initiate a prosecution,
including the decision to file a criminal complaint or seek an arrest warrant, is protected by absolute
immunity.” Howell v. Sanders, 668 F.3d 344, 351 (6th Cir. 2012). Plaintiff’s claim for money
damages against Defendant Weirich is barred by absolute prosecutorial immunity, id. at 427-28;
Burns v. Reed, 500 U.S. 478, 490-492 (1991); Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir.
1989); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986), and, therefore, she cannot be sued for
malicious prosecution, O’Neal v. O’Neal, 23 F. App’x 368, 370 (6th Cir. 2001); see also Spurlock
v. Thompson, 330 F.3d 791, 797 (6th Cir. 2004) (noting that “prosecutors are absolutely immune
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from many malicious prosecution claims”); Roybal v. State of Tenn. Dist. Attorney’s Office, 84 F.
App’x 589 (6th Cir. 2003).
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. Rhode Island, 511 F. App’x 4, 5 (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 when a deficiency cannot be cured. Brown, 511 F. App’x at 5; 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.”). The deficiencies in Plaintiff’s § 1983 claim cannot be
cured by amendment for the reasons previously stated.
Therefore, the Court DISMISSES Plaintiff’s complaint for failure to state a claim on which
relief may be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and because it
seeks money damages from parties who are immune from such relief, pursuant to 28 U.S.C. §§
1915(e)(2)(B)(iii) and 1915A(b)(2). 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. When an appellant seeks to proceed in forma pauperis on
appeal, the United States Court of Appeals for the Sixth Circuit requires that all district courts in the
circuit determine whether the appeal would be frivolous. Twenty-eight U.S.C. § 1915(a)(3) provides
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that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is
not taken in good faith.”
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445
(1962). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith is whether
the litigant seeks appellate review of any issue that is not frivolous. Id. It would be inconsistent for
a district court to determine that a complaint should be dismissed prior to service on the defendants,
but has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d
1048, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case for
failure to state a claim also compel the conclusion that an appeal would not be taken in good faith.
It is therefore CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by
Plaintiff would not be taken in good faith and Plaintiff may not proceed on appeal in forma pauperis.
Leave to proceed on appeal in forma pauperis is, therefore, DENIED.
If Plaintiff appeals the dismissal of this case, the Court is required to assess the $505
appellate filing fee. In McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially
overruled on other grounds by LaFountain v. Harry, 716 F.3d at 951, the Sixth Circuit set out
specific procedures for implementing the PLRA, 28 U.S.C. §§ 1915(a)-(b). Therefore, Plaintiff is
instructed that, if he wishes to take advantage of the installment procedures for paying the appellate
filing fee, he must comply with the procedures outlined in McGore and 28 U.S.C. § 1915(b).
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Plaintiff, this is the first
dismissal 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, 733 F.3d 175, 177-78 (6th Cir. 2013), cert.
granted, 82 U.S.L.W. 3675 (U.S. Oct. 2, 2014) (Nos. 13-1333, 13A985).
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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