Wilson v. State of Tennessee et al

Filing 5

ORDER TO MODIFY THE DOCKET, DISMISSING CASE, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 01/02/2015. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CURTERRIO WILSON,
Plaintiff,
VS.
STATE OF TENNESSEE, ET AL.,
Defendants.

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No. 14-2648-JDT-cgc

ORDER TO MODIFY THE DOCKET,
DISMISSING CASE,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On August 19, 2014, Plaintiff Curterrio Wilson, booking number 13129008, 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 21, 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. 4.) The Clerk shall record the Defendants1 as
the State of Tennessee; Shelby County District Attorney General Amy P. Weirich; Assistant District
Attorney Generals D. Ayers and C.L. Price; Mary Thomas, the foreperson of the grand jury; and
Shelby County Criminal Court Judge Carolyn Wade Blackett.2

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Although the case caption uses the designation “et al.,” the Court will not speculate
about the identity of any other person or entity that Plaintiff intends to sue.
2

The Clerk is directed to modify the docket to reflect Judge Blackett’s full name.

The factual allegations of the complaint are as follows:
On January 7, 2014 a True Bill indictment was returned against the Plaintiff from the
Grand Jury foreperson Mary Thomas and assigned to D. Ayers/C.L. Price for
Prosecution from 30th Judicial Attorney General Amy P. Weirich in Criminal Court
Division 4 under the supervision of Judge Blackett whom all acted outside the scope
of their authority by committing fraud under an endorsed oath of office while in
public office to uphold all laws of the State of Tennessee and the U.S. Constitution.
Grand Jury foreperson Mary Thomas signature on a True Bill indictment was forged
under misrepresentation of the State of Tennessee government ethics and
accountability due to the Grand Jury foreperson being deceased and unable to certify
a true bill claim. A Ponzi scheme and conspiracy to defraud the government and
myself for personal gain of a public office was developed by the participation to
prosecute an unlawful act against me by Amy P. Weirich (District Attorney General)
and Criminal Court Division 4 Prosecutor D. Ayers/C.L. Price all under Anti-Trust
laws of the commerce law due to knowingly, willingly, and intentionally conspiring
in secrecy to defraud the government through embezzlement and bribery for personal
gain using fraudulent tactics to prosecute me[.]
(ECF No. 1 at PageID 2-3.) Plaintiff seeks his immediate release and money damages from each
Defendant in the amount of $20 million. (Id. at PageID 4.)
By way of background, on January 7, 2014, the grand jury returned two indictments against
Wilson. Indictment Number 14 00003 charged Wilson with two counts of aggravated robbery, one
count of aggravated burglary, and one count of employing a firearm with intent to commit a felony.
Indictment Number 14 00004 charged Wilson with one count of aggravated robbery. Those charges
are pending.3
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—

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See http://jssi.shelbycountytn.gov/. Although not mentioned in the complaint, the grand
jury also returned two additional indictments against Wilson on January 16, 2014. Indictment
Numbers 14 00349 and 14 00350 each charged Wilson with one count of unlawful possession of
a weapon.

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(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 standards under Fed. R. Civ. P. 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), are applied. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all well-pleaded allegations in the
complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint to determine if
they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011) (quoting Iqbal, 556 U.S. at 681). “[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.” Hill, 630 F.3d at 470 (citing
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally frivolous would ipso
facto fail to state a claim upon which relief can be granted.” Id. (citing Neitzke, 490 U.S. at 328-29).
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

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the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless. Unlike a
dismissal for failure to state a claim, where a judge must accept all factual allegations
as true, a judge does not have to accept “fantastic or delusional” factual allegations
as true in prisoner complaints that are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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, however, 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. 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))); 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.”).

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To state a claim under 42 U.S.C. § 1983,4 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 vague and conclusory allegations of Plaintiff’s complaint are insufficient to state a
plausible claim for relief against any party. Although Plaintiff avers that his indictment was
fraudulent and that Defendants have participated in a Ponzi scheme for personal gain, Rule 9(b) of
the Federal Rules of Civil Procedure requires that, “[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or mistake.” The complaint fails to allege
the circumstances constituting fraud with particularity.
Plaintiff cannot sue 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 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

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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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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.” (citations 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, 491 U.S. at 71.
The Court cannot order that Plaintiff be released. 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 of Plaintiff
is premature. As the Supreme Court has explained:
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

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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. Instead,
Plaintiff entered into a plea agreement since the commencement of this action. Plaintiff’s guilty plea
is inconsistent with his claim that the indictment was invalid.
Plaintiff cannot sue Defendants Weirich, Ayers, and Price 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 Defendants Weirich, Ayers, and Price 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). Therefore,
they cannot be sued for malicious prosecution. See 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 from many malicious prosecution claims”); Roybal v. State of
Tenn. Dist. Attorney’s Office, 84 F. App’x 589 (6th Cir. 2003).

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The claims against Defendant Blackett are barred by judicial immunity. Judges are entitled
to absolute judicial immunity for acts taken in their judicial capacities. See Mireles v. Waco, 502
U.S. 9, 12 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 359-60 (1978); Pierson v. Ray,
386 U.S. 547, 553-54 (1967); Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 648-49 (6th Cir. 2014);
Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012). Any actions taken by Defendant Blackett
with respect to Plaintiff’s indictment and his criminal case was done in his judicial capacity. See
DePietro v. City of Macedonia, 180 F.3d 770, 784 (6th Cir. 1999).
Plaintiff cannot obtain money damages against Defendant Thomas. Grand jurors are entitled
to absolute quasi-judicial immunity, Richardson v. McKnight, 521 US. 399, 417-18 (1987); Butz v.
Economou, 438 U.S. 478, 509-10 (1978); Imbler, 424 U.S. at 423 n.20, 437, and, therefore, they are
not liable for money damages.
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 where 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

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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).
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.
Therefore, it is 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.
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

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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). McGore sets out specific procedures for implementing the Prison Litigation Reform Act, 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, 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).
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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