Henderson v. Mitchell et al

Filing 5

ORDER DISMISSING COMPLAINT, CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 2/26/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JAMES HENDERSON,
Plaintiff,
VS.
CHARLES MITCHELL, ET AL.,
Defendants.

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No. 14-2916-JDT-tmp

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

On November 24, 2014, Plaintiff, James Henderson, booking number 11145066, 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 November 26,
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 Charles Mitchell, a criminal defense attorney;
Amy Weirich, the District Attorney General for the Thirtieth Judicial District at Memphis;
and Shelby County Criminal Court Judge Carolyn Blackett.
The factual allegations of the complaint are as follows:
(false imprisonment) They violated my constitutional rights my fourth
admendment [sic] I was seized threaten to make a statement without being

“mirandized”. I was charged with reckless homicide then indicted on 1st
Degree Murder with the involuntary statement made by plaintiff. Plaintiff fifth
admendant [sic] was violated by the delay of thirty-six months (36) without
being afforded an opportunity to plea not guilty and be legally set for trial.
Plaintiff six admendment [sic] right has been violated by plaintiff ascertaining
that right to go to trial by has been consecutively set off for reports dates do
[sic] to the complicity of my lawyer Mr. Mitchell #23789, Judge Cloring [sic]
Blacket [sic]. Mr. Mitchell ineffectively assisting plaintiff as his conunsel
[sic].
(ECF No. 1 at 2.) Plaintiff seeks money damages.
By way of background, on November 10, 2011, Plaintiff was arrested on a charge of
reckless homicide. See http://jssi.shelbycountytn.gov (Booking # 11145066). On April 19,
2012, a grand jury returned an indictment charging Henderson with first degree murder. See
id. (Indictment # 12 02158). The criminal case is pending.
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 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]
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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 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).

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“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. § 1983,1 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).
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 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.

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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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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 here.
In addition, Plaintiff cannot sue Defendant Mitchell under 42 U.S.C. § 1983.
Attorneys, whether court appointed or privately retained, do not act under color of state law
for purposes of § 1983. Smith v. Hilltop Basic Res., Inc., 99 F. App’x 644, 646 (6th Cir.
2004); Harmon v. Hamilton Cnty. Court of Common Pleas, 83 F. App’x 766, 767 (6th Cir.
2003) (“Here, the defendant attorneys did not act under color of state law as privately
retained attorneys, although the acts alleged related to state court litigation.”); Otworth v.
Vaderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“A lawyer representing a client is not, by
virtue of being an officer of the court, a state actor under color of state law within the
meaning of § 1983.”); Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998); see Polk Cnty. v.
Dodson, 454 U.S. 312 (1981) (holding that public defender does not act under color of state
law for purposes of § 1983); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1979) (applying
Polk County to retained criminal lawyers).
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
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(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 her judicial capacity. See DePietro v. City of Macedonia, 180 F.3d 770,
784 (6th Cir. 1999).
Plaintiff also 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). 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 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
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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 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.”). Because the deficiencies in Plaintiff’s
complaint cannot be cured, leave to amend is DENIED.
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).
The claims against Defendants Weirich and Blackett are also DISMISSED 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
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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 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 v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the
PLRA, 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.

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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, 135 S. Ct. 43 (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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