Bey v. The Criminal Court of Tennessee for the 30th Judicial District at Memphis et al

Filing 9

ORDER DISMISSING CLAIMS,DENYING MOTION TO SERVE PROCESS, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE, Motions terminated: 8 . Signed by Judge James D. Todd on 9/9/15. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WALI BEY,
a/k/a KHALIQ RA-EL
Plaintiff,
VS.
SHELBY COUNTY,
Defendant.

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No. 14-2871-JDT-dkv

ORDER DISMISSING CLAIMS,
DENYING MOTION TO SERVE PROCESS,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On October 31, 2014, Plaintiff Wali Bey (“Bey”), who is currently an inmate at the
Shelby County Criminal Justice Complex ("Jail") in Memphis, Tennessee, filed a pro se
complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos.
1 & 2). In an order issued November 4, 2014, United States District Judge Todd Campbell of the
Middle District of Tennessee granted leave to proceed in forma pauperis, assessed the civil filing
fee pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”), 28 U.S.C. §§ 1915(a)-(b),
and ordered the case transferred to the United States District Court for the Western District of
Tennessee (ECF No. 3.) The Clerk shall record the defendant as Shelby County.1

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The Court construes the allegations against the Criminal Court of Tennessee for the 30th
District of Memphis, Shelby County District Attorneys’ Office, and the Shelby County Public
Defenders’ Office as an attempt to assert a claim against Shelby County. The Clerk is directed to
terminate the Criminal Court of Tennessee for the 30th District of Memphis, Shelby County
District Attorneys’ Office, and the Shelby County Public Defenders’ Office as defendants.

I. THE COMPLAINT
Bey alleges that his equal protection and due process rights were denied in the course of
his grand jury indictment. (Compl 3, ECF No. 1.) Bey’s complaint states that his appointed
public defender waived the reading of the grand jury indictment without his consent. (Id.) Bey
contends that he immediately filed a motion to get a copy of the indictment, but “the Defendants
removed the Plaintiff’s motion from the record and refused to provide the information.” (Id.)
Bey believes this information is necessary to determine whether any of his rights were violated.
(Id.)
Bey also alleges that Defendants withheld exculpatory evidence from his criminal trial.
(Id. at 4.) Specifically, Bey complains that Defendants suppressed evidence of x-rays of Nikko
Moore at his criminal trial despite a production request from the defense and that withholding
this evidence deprived him of due process of law. (Id.)
Bey seeks a declaratory judgment ordering Defendants to provide the record of the
formation of the grand jury, the return of indictment, the appointment of a “foreperson for the
2011 term,” and the x-rays of Nikko Moore.
II. ANALYSIS
A.

Screening and Standard
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.

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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 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 wellpleaded 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
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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. 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.”).

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Bey filed his complaint on the court-supplied form for actions under 42 U.S.C. § 1983.
(ECF No. 1.) 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.
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).
B.

Claims against Shelby County
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 the
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). Even if it were assumed that the complaint alleged a violation of Bey’s constitutional
rights, the second issue would be dispositive of Bey’s claims against Shelby County.
A local government “cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978); 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
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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 Cnty., 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 Cnty. 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 Cnty. 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

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v. Corr. 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. Cnty. 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 Bey suffered
any injury arising from an unconstitutional policy or custom of Shelby County.
C.

Claims Regarding Criminal Prosecutions
Any claims arising from Bey’s conviction are barred by Heck v. Humphrey, in which the

Supreme Court held:
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.
512 U.S. 477, 486-87 (1994) (footnotes omitted). See also Schilling v. White, 58 F.3d 1081,
1086 (6th Cir. 1995) (same) (footnotes omitted). A plaintiff 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 a
state court order directing his confinement unless and until any prosecution is terminated in his

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favor, his conviction is set aside, or the confinement is declared illegal. Heck, 512 U.S. at 48182; Schilling, 58 F.3d at 1086. Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (whenever the
relief sought is release from prison, the only remedy is through a habeas petition, not a § 1983
complaint).
Here, Heck applies to bar Bey’s claims arising from his criminal prosecution. Bey has
not yet had his conviction overturned on direct appeal. Bey must have the conviction overturned
on direct appeal or via collateral attack before any claims can accrue.
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.”).
Here, the deficiencies in Bey’s complaint cannot be cured by amendment.
IV. APPEAL ISSUES
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Bey 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 Bey’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 Bey’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 Bey would not be taken in
good faith. Leave to appeal in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g).
Bey’s Motion to Serve Process is DENIED due to the dismissal of the complaint.
The Court must also address the assessment of the $505 appellate filing fee if Bey
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, Bey 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 Bey, 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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