Tran v. Weirich et al

Filing 7

ORDER DISMISSING CLAIMS, CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 1/29/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DUNG TRAN,
Plaintiff,
VS.
AMY P. WEIRICH, ET AL.,
Defendants.

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No. 15-2127-JDT-tmp

ORDER DISMISSING CLAIMS,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On February 23, 2015, Plaintiff Dung Tran (“Tran”), who is currently an inmate at the
Shelby County Correctional Center (“SCCC”) in Memphis, Tennessee, filed a pro se complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) In response to the Court’s order, Tran filed a
motion to proceed in forma pauperis on March 9, 2015. (ECF Nos. 3 & 4). In an order issued
March 10, 2015, 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. 5.) The Clerk shall record the defendants as Amy P. Weirich and Mary Thompson.
I. The Complaint
Trans’s complaint alleges that on July 24, 2012, Mary Thompson was the foreperson on
his grand jury; however, he contends that she was dead at the time the grand jury convened
meaning that her name on the indictment was forged. (Compl. at 2, ECF No. 1.) Further, Tran
alleges that on April 5, 2012, Defendant Weirich made a second indictment with the same

charge. (Id.) Trans alleges that both indictments are invalid resulting in the violation of his
Constitutional rights and wrongful incarceration. (Id.)
Tran seeks his immediate release as well as monetary compensation for his pain and
suffering. (Id. at 3.)
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.
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

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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. 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.

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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.”).
B.

§ 1983 Claim
Tran 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 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).

1.

Statute of Limitations
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The statute of limitations for a § 1983 action is the “state statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim
arises.” Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007);
see also Wilson v. Garcia, 471 U.S. 261, 275-76 (1985) (same). The limitations period
for § 1983 actions arising in Tennessee is the one-year limitations provision found in
Tennessee Code Annotated § 8-3-104(a). Roberson v. Tenn., 399 F.3d 792, 794 (6th Cir.
2005); Hughes v. Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000); Berndt v. Tenn.,
796 F.2d 879, 883 (6th Cir. 1986). Tran’s claims arise from the alleged indictments from
2012, three years before filing this complaint, thus, the claims fail to arise during
limitations period in Tennessee.
2.

Claims against Defendant Weirich

Additionally, Tran cannot sue Defendant Weirich for money damages arising from
the institution of criminal proceedings against him. 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). Tran's claim for money damages against Defendant Weirich for these activities 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
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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).
3.

Release from Conviction

Any claims arising from Tran’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, 114 S. Ct. 2364, 2372-73, 129 L. Ed.2d 383 (1994)(footnotes omitted).
See also Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995)(same)(footnotes omitted). Tran
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 favor, his conviction is set aside, or the confinement is declared
illegal. Heck, 512 U.S. at 481-82, 114 S. Ct. 2369-70; Schilling, 58 F.3d at 1086.
Here, Heck applies to bar Tran's claims arising from his criminal prosecution and
conviction. Tran must have his conviction overturned on direct appeal or via collateral attack
before any claims can accrue.
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The Court expressly declines to address the complaint as a habeas petition because Tran
cannot demonstrate that he has exhausted his state remedies. A habeas petitioner must first
exhaust available state remedies before requesting relief under § 2254. See, e.g., Granberry v.
Greer, 481 U.S. 129, 133-34, 107 S. Ct. 1671, 1674-75, 95 L. Ed.2d 119 (1987); Rose v. Lundy,
455 U.S. 509, 515-16, 102 S. Ct. 1198, 1201-02, 71 L. Ed.2d 379 (1982). See also Rule 4, Rules
Governing Section 2254 Cases in the United States District Courts. A petitioner has failed to
exhaust his available state remedies if he has the opportunity to raise his claim by any available
state procedure. Preiser, 411 U.S. at 477, 489-90, 93 S. Ct. 1830, 1836-37. Moreover, to
exhaust these state remedies, the applicant must have presented the very issue on which he seeks
relief from the federal courts to the courts of the state that he claims is wrongfully confining him.
Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512, 30 L. Ed.2d 438 (1971); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994).
For the foregoing reasons, Tran’s complaint is subject to dismissal in its entirety for
failure to state a claim on which relief can 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

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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.”).
IV. Appeal Issues
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.
V. Conclusion
The Court DISMISSES Tran’s complaint as to all Defendants 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 Tran’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 Plaintiff
would not be taken in good faith.

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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, 716 F.3d at 951. 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.
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, 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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