Faulkner v. Burleson et al

Filing 7

ORDER PARTIALLY DISMISSING COMPLAINT, DENYING REQUEST FOR APPOINTED COUNSEL AND DIRECTING THAT PROCESS BE ISSUED AND SERVED ON DEFENDANT BURLESON. Signed by Judge James D. Todd on 8/1/2016. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES FAULKNER,
Plaintiff,
VS.
F. BURLESON, ET AL.,
Defendants.

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No. 15-2220-JDT-tmp

ORDER PARTIALLY DISMISSING COMPLAINT,
DENYING REQUEST FOR APPOINTED COUNSEL AND DIRECTING THAT
PROCESS BE ISSUED AND SERVED ON DEFENDANT BURLESON

On March 31, 2015, Plaintiff James Faulkner (“Faulkner”), who is a presently confined 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.) After Faulkner submitted the necessary documentation, the Court issued an order on
April 20, 2015, granting leave to proceed in forma pauperis and assessing the civil filing fee
pursuant to the Prison Litgation Reform Act, 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk
shall record the Defendants as Officer F. Burleson and Shelby County Sheriff Bill Oldham.
I. THE COMPLAINT
In his complaint, Faulkner alleges that on May 28, 2014, he was assaulted by Defendant
Burleson. (ECF No. 1 at 2.) 1 Faulkner contends that Defendant Burleson first pushed him over

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In the section of the complaint asking whether Plaintiff presented his claims in the
prison grievance procedure, he indicated yes and also wrote, “see attached grievance #58323.”
(Id.) However, no copy of any grievance is attached to the complaint.

a table then, with handcuffs on his fist, proceeded to punch Faulkner repeatedly on the head,
causing a bloody laceration. (Id.) Burleson also alleges that previously, on July 18, 2013,
Burleson slammed Faulkner’s head while Faulkner was in handcuffs. (Id.) Faulkner further
alleges that Defendant Oldham’s grievance board did not properly handle that first assault. (Id.
at 3.)
Faulkner seeks the opportunity to present proof to a jury and to have the case expedited.
He also requests a court appointed attorney. (Id.)
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 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
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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
(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.,

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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.”).
B.

§ 1983 Claim
Faulkner 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

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defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970).
The complaint contains no direct factual allegations against Defendant Oldham, but
rather contends that “the Shelby County Sheriff’s” grievance board did not properly handle the
first assault. (ECF No. 1 at 3.) Thus, it appears that Oldham is sued only because of his position
as the Sheriff. However, under 42 U.S.C. § 1983, “[g]overnment officials may not be held liable
for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”
Ashcroft v. Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984). Thus, “a plaintiff must plead that each Government-official defendant, through the
official’s own official actions, violated the Constitution.” Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific instance of
misconduct or in some other way directly participated in it. At a minimum, a
§ 1983 plaintiff must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of
the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted).

A supervisory official who is aware of the

unconstitutional conduct of his or her subordinates, but fails to act, generally cannot be held
liable in his or her individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008);
Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir.
1996). The complaint does not allege that Defendant Oldham had any personal involvement in
the investigation of the assault on Plaintiff or that he was even aware of any such investigation.

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Faulkner’s complaint alleges that Defendant Burleson subjected him to excessive force
on May 28, 2014 and on July 18, 2013.2

The Supreme Court has held, in Kingsley v.

Hendrickson, 135 S. Ct. 2466 (2015), that excessive force claims brought by pre-trial detainees
must be analyzed under the Fourteenth Amendment’s standard of objective reasonableness,
rejecting a subjective standard that takes into account a defendant’s state of mind. Id. at
2472-73. For purposes of screening, Faulkner has alleged a plausible claim for violation of the
Fourteenth Amendment against Defendant Burleson.
III. REQUEST FOR APPOINTMENT OF COUNSEL
As part of his request for relief, Faulkner requests the appointment of counsel. (ECF No.
1 at 3.) Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent any
such person unable to afford counsel.” However, “[t]here is no constitutional or . . . statutory
right to counsel in federal civil cases,” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993), and
“§ 1915[(e)(1)] does not authorize the federal courts to make coercive appointments of counsel”
to represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310
(1989). Generally, a court will only appoint counsel in exceptional circumstances. Willett v.
Wells, 469 F. Supp. 748, 751 (E.D. Tenn. 1977). Although “no comprehensive definition of
exceptional circumstances is practical,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982),
courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328,
1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court analyzes the
merits of the claims, the complexity of the case, the pro se litigant’s prior efforts to retain

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Plaintiff has indicated that he presented these claims in the Jail’s grievance procedure.
Therefore, although it appears that any claim arising out of the 2013 assault could be barred by
the one-year statute of limitation, the Court will not dismiss the claim until it is determined
whether and to what extent the limitations period was tolled by a properly-filed grievance.

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counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep’t, 763
F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).
As a general rule, counsel should be appointed in civil cases only if a litigant has made “a
threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174
(2d Cir. 1989). Because Faulkner has not met the threshold showing likelihood of success, the
request is DENIED.
IV. CONCLUSION
The Court DISMISSES Faulkner’s claims against Defendant Oldham pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Process will be issued for Defendant Burleson on
Faulkner’s Fourteenth Amendment claim for the use of excessive force.
The Clerk is ORDERED to issue process for Defendant Burleson and deliver that process
to the U.S. Marshal for service. Service shall be made on Defendant Burleson pursuant to
Federal Rule of Civil Procedure 4(e) and Tennessee Rules of Civil Procedure 4.04(1) and (10),
either by mail or personally if mail service is not effective. All costs of service shall by
advanced by the United States.
It is further ORDERED that Faulkner shall serve a copy of every subsequent document
he files in this cause on the attorney for the Defendant or on the Defendant if he is unrepresented.
Faulkner shall make a certificate of service on every document filed. Faulkner shall familiarize
himself with Federal Rules of Civil Procedure and this Court’s Local Rules.3

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A copy of the Local Rules may be obtained from the Clerk. The Local Rules are also
available on the Court’s website at www.tnwd.courts.gov/pdf/content/LocalRules.pdf.

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Faulkner is reminded that he must shall promptly notify the Clerk of any change of
address or extended absence. Failure to comply with these requirements or any other order of
the Court may result in the dismissal of this case without further notice.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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