Joyner v. Phillips et al

Filing 7

ORDER TO MODIFY THE DOCKET, 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 1/4/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TROY JOYNER, JR.,
Plaintiff,
VS.
FREDRICK PHILLIPS, ET AL.,
Defendants.

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No. 14-2670-JDT-tmp

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

On August 28, 2014, Plaintiff Troy Joyner, Jr. (“Joyner”), who is a pretrial
detainee at the Shelby County Criminal Justice Complex (“Jail”) 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 August 29, 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 Defendants as Fredrick Phillips; M. Keaton, a

Detective Sergeant with the Memphis Police Department (“MPD”); and the City of
Memphis.1

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The Court construes the allegations against the 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
Joyner’s complaint alleges that on September 9, 2013, Defendant Phillips falsely
identified Joyner as the suspect in a home invasion and robbery at Defendant Phillips’s
home. (ECF No. 1-5 at 4.) After initially not identifying a suspect, Defendant Phillips
returned to the police station on September 9, 2013, identified Joyner as a suspect, and
then picked Joyner’s photo out of a line-up provided by Defendant Keaton. (Id.) After
Defendant Phillips’s identification, Joyner contends that Defendant Keaton presented this
false information to the district attorney, leading to a warrant for his arrest. (Id. at 5.)
Defendant Phillips later presented his testimony before the grand jury, and Joyner was
indicted on the charges. (Id. at 6.)
Joyner alleges that at no point in Defendant Keaton’s investigation was Joyner
allowed to provide an account of his alibi. (Id. at 8.) Further, Defendant Keaton showed
the photo line-up to James Renner, another victim of the home invasion who is not a
party to this complaint, and Renner did not identify Joyner. (Id.) Joyner states that he
has suffered as a result of the wrongful incarceration and Defendant Keaton’s dereliction
of duties. (Id. at 9.)
By way of background, on April 8, 2014, Joyner was indicted on especially
aggravated assault, aggravated robbery, aggravated kidnapping, aggravated burglary, and
theft of property, in violation of Tenn. Code Ann. §§ 39-13-403, 39-13-402, 39-13-304,
39-14-403, and 39-14-103, respectively. See jssi.shelbycountytn.gov (Indictment #14
01669). The state filed an order of Nolle Prosequi on April 15, 2015. Id. On February 5,
2015, Joyner was re-indicted on especially aggravated assault, aggravated robbery,
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aggravated kidnapping, aggravated burglary, and theft of property, in violation of Tenn.
Code Ann. §§ 39-13-403, 39-13-402, 39-13-304, 39-14-403, & 39-14-103 respectively.
See jssi.shelbycountytn.gov (Indictment #15 00599). A mistrial was declared on April,
11, 2015, and the state filed an order of Nolle Prosequi on April 15, 2015. Id.
Joyner seeks punitive and compensatory damages. (Id.at 3.)
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)
such relief.

seeks monetary relief from a defendant who is immune from

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
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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, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, No. 092259, 2011 WL 285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se
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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.”).
Joyner 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
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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).
Joyner cannot sue Defendant Phillips, a private party, under 42 U.S.C. § 1983. “A
§ 1983 plaintiff may not sue purely private parties.” Brotherton v. Cleveland, 173 F.3d
552, 567 (6th Cir. 1999). Thus, “[i]n order to be subject to suit under § 1983 claim,
defendant's actions must be fairly attributable to the state.” Collyer v. Darling, 98 F.3d
211, 231-32 (6th Cir. 1997). As a private individual, Defendant Phillips is not a state
actor under § 1983.
The complaint does not assert any valid claims against the City of Memphis or
against Defendant Keaton in his official capacity. 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 Joyner’s claims against the City of Memphis.
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
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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)).
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.
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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 allegations of the
complaint fail to identify an official policy or custom of the City of Memphis which
caused injury to Joyner.
Joyner alleges that Defendants Phillips and Keaton conspired to have him
prosecuted by subjecting him to a suggestive lineup and using perjured statements. The
complaint does not state a valid malicious prosecution claim against Defendants Phillips
and Keaton. The requirements for a malicious prosecution claim under § 1983 are as
follows:
The Sixth Circuit “recognize[s] a separate constitutionally
cognizable claim of malicious prosecution under the Fourth Amendment,”
which “encompasses wrongful investigation, prosecution, conviction, and
incarceration.” Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006)
(internal quotation marks omitted). The “tort of malicious prosecution” is
“entirely distinct” from that of false arrest, as the malicious-prosecution tort
“remedies detention accompanied not by absence of legal process, but by
wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 390,
127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007) (internal quotation marks
omitted). . . .
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To succeed on a malicious-prosecution claim under § 1983 when the
claim is premised on a violation of the Fourth Amendment, a plaintiff must
prove the following: First, the plaintiff must show that a criminal
prosecution was initiated against the plaintiff and that the defendant
“ma[d]e, influence[d], or participate[d] in the decision to prosecute.” Fox
v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007); see also McKinley v. City of
Mansfield, 404 F. 3d 418, 444 (6th Cir. 2005); Darrah v. City of Oak Park,
255 F.3d 301, 312 (6th Cir. 2001); Skousen v. Brighton High Sch., 305 F.3d
520, 529 (6th Cir. 2002). Second, because a § 1983 claim is premised on
the violation of a constitutional right, the plaintiff must show that there was
a lack of probable cause for the criminal prosecution, Fox, 489 F.3d at 237;
Voyticky, 412 F.3d at 675. Third, the plaintiff must show that, “as a
consequence of a legal proceeding,” the plaintiff suffered a “deprivation of
liberty,” as understood in our Fourth Amendment jurisprudence, apart from
the initial seizure. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007); see
Gregory v. City of Louisville, 444 F.3d 725, 748-50 (6th Cir. 2006)
(discussing the scope of “Fourth Amendment protections . . . beyond an
initial seizure,” including “continued detention without probable cause”);
cf. Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994 ) (“[U]nlike the related cause of action for false arrest or
imprisonment, [an action for malicious prosecution] permits damages for
confinement imposed pursuant to legal process.”). Fourth, the criminal
proceeding must have been resolved in the plaintiff’s favor. Heck, 512 U.S.
at 484, 114 S. Ct. 2364 (“One element that must be alleged and proved in a
malicious prosecution action is termination of the prior criminal proceeding
in favor of the accused.”).
Sykes v. Anderson, 625 F. 3d 294, 308-09 (6th Cir. 2010) (additional citations and
footnote omitted).
Joyner was indicted for especially aggravated robbery, aggravated robbery,
aggravated kidnapping, aggravated burglary, and theft of property in Shelby County
Criminal Court case numbers 14-01669 and 15-00599. The fact that the Joyner was
ultimately indicted by a grand jury shows the existence of probable cause for the charges.
“[T]he finding of an indictment, fair upon its face, by a properly constituted grand jury,
conclusively determines the existence of probable cause for the purpose of holding the
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accused to answer.” Higgason v. Stephens, 288 F. 3d 868, 877 (6th Cir. 2002) (quoting
Ex parte United States, 287 U.S. 241, 250 (1932)). In light of the grand jury indictment,
any malicious prosecution claim fails because Joyner cannot show the absence of
probable cause.
For all of the foregoing reasons, Joyner’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
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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 Joyner’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 Joyner 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 Joyner’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 Joyner’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
Joyner would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if
Joyner nevertheless appeals the dismissal of this case. A certification that an appeal is
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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, Joyner 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 Joyner, 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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