HARPER v. FAYETTE COUNTY DETENTION CENTER et al

Filing 8

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 11/24/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PERRY HARPER,
Plaintiff,
VS.
FAYETTE COUNTY, ET AL.,
Defendants.

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No. 14-2650-JDT-dkv

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

On July 30, 2014, Plaintiff Perry Harper (“Harper”), who was, at the time, incarcerated at
the Fayette County Detention Center (“Jail”) in Somerville, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983 in the U.S. District Court for the District of Columbia,
accompanied by a motion seeking leave to proceed in forma pauperis. (ECF Nos. 1 & 2.) On
August 21, 2014, U.S. District Judge Coleen Kollar-Kotelly transferred the case to this district,
where venue is proper. (ECF No. 3.) This Court subsequently 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. 7.) The Clerk shall record the Defendants as
Fayette County1 and Jail Administrator F. Turner.

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The Court construes the allegations against the Jail as an attempt to assert a claim
against Fayette County. The Clerk is DIRECTED to remove Fayette County Detention Center as
a Defendant and add Fayette County.

I. The Complaint
Harper’s complaint alleges that the Jail is not following the law and proper policy
regarding his incoming and outgoing mail. Specifically, he contends that the delivery of his mail
has been delayed and that his legal mail has been opened outside his presence. (ECF No. 1 at 12.) On two occasions, Harper has had incoming mail that was held for a period of time before it
was given to him. (Id. at 2.) On February 5, 2014, he received mail that was “mail post date”
January 25, 2014, and on May 15, 2014, he received mail dated May 14, 2014.

(Id.)

Additionally, Harper alleges that a legal document he mailed back to an unspecified District
Court Clerk’s office was cut in two and taped back together. (Id.)2 Harper states that he has a
list of additional dates showing delays in receiving mail and other instances of his legal mail
being opened outside his presence (id.), but that list is not included with the complaint. He seeks
monetary damages. (Id.).
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,

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This Court has received no mail from Plaintiff that was damaged in any way.
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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.”).
“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

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(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,
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.”).
Harper 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
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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).
The complaint contains no factual allegations against Defendant Turner.

When a

complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
Harper has asserted that his mail is not being delivered in a timely fashion and that his
legal mail was opened outside of his presence. (ECF No. 1 at 2.) However, the complaint does
not assert a valid claim for denial of Harper’s First Amendment right of access to the courts. See
Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Bounds v. Smith, 430 U.S. 817, 821
(1977) (“It is now established beyond doubt that prisoners have a constitutional right of access to
the courts.”). The Supreme Court has held that
“[t]he fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” Bounds, 430 U.S. at 828. However, Bounds
does not guarantee inmates the wherewithal to transform themselves into
litigating engines capable of filing everything from shareholder derivative actions
to slip-and-fall claims. The tools it requires to be provided are those that the
inmates need in order to attack their sentences, directly or collaterally, and in
order to challenge the conditions of their confinement. Impairment of any other
litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.

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Lewis v. Casey, 518 U.S. 343, 355 (1996); see also Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc) (inmates’ First Amendment right of access to the courts “extends to
direct appeal, habeas corpus applications, and civil rights claims only”).
To have standing to pursue a First Amendment claim that he was denied access to the
courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’ i.e., that the
conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers v. Hawley, 14 F.
App’x 403, 409 (6th Cir. 2001) (citation omitted); see also Hadix, 182 F.3d at 405-06
(explaining how Lewis altered the “actual injury” requirement previously articulated by the Sixth
Circuit). “Actual injury” can be demonstrated by “the late filing of a court document or the
dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). The complaint does not allege that Harper suffered any actual injury due to a delay in
receiving mail or any improper opening of his legal mail. The complaint also does not allege
that any specific individual was personally responsible for that lack of access.
The complaint does not assert a valid claim against Fayette 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

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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)).
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,

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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 Harper
suffered any injury arising from an unconstitutional policy or custom of Fayette County.
For all of the foregoing reasons, Harper’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
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

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amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, because the deficiencies in Harper’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
Harper in this case would be taken in good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in
good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. It
would be inconsistent for a district court to determine that a complaint should be dismissed prior
to service on the Defendants, but has sufficient merit to support an appeal in forma pauperis.
See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same considerations that
lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an
appeal would not be taken in good faith.
V. Conclusion
The Court DISMISSES Harper’s complaint for failure to state a claim on which relief can
be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b(1). Leave to amend is
DENIED because the deficiencies in Harper’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 Harper would not be taken
in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Harper
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

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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, Harper
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 Harper, this is the
second dismissal of one of his cases as frivolous or for failure to state a claim.3 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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Harper previously filed Harper v. Fayette County, et al., No. 14-2612-JDT-dkv (W.D.
Tenn. Jan. 6, 2015) (dismissed for failure to state a claim).
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