Nesler v. WTDF et al

Filing 13

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 5/5/16. (Todd, James)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOHN J. NESLER,
Plaintiff,
VS.
CORRECTIONS CORPORATION OF
AMERICA, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 15-2348-JDT-dkv

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On May 22, 2015, Plaintiff John J. Nesler (“Nesler”), Bureau of Prisons (“BOP”)
register number 21873-076, who is incarcerated at the Federal Correctional Institution I
in Oakdale, Louisiana (“FCI Oakdale I”),1 filed a pro se civil complaint on the form used
for commencing actions pursuant to 42 U.S.C. § 1983. (ECF No. 1.) After Nesler
submitted the necessary documentation, the Court issued an order on June 30, 2015,
granting leave to proceed in forma pauperis and assessing the civil filing pursuant to the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a)-(b). (ECF No. 7.) The
Clerk shall record the Defendants as the Corrections Corporation of America (“CCA”),
1

A document filed by Nesler in another of his cases, number 15-2349-JDT-dkv, shows
that he is now confined at FCI Oakdale. (See No. 15-2349, ECF No. 12-1.) Therefore, the Clerk
is directed to MODIFY the docket to reflect that Nesler’s address is FCI Oakdale and to mail a
copy of this order to Nesler at that address.

which operates the West Tennessee Detention Facility (“WTDF”), where Nesler was
previously incarcerated;2 and the U.S. Marshals Service (“USMS”). Because Nesler’s
claims concern the actions of persons and entities acting under color of federal law rather
than state law, any constitutional claims arise under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1974), instead of 42 U.S.C. § 1983.3
I. THE COMPLAINT
Nesler’s complaint is somewhat incoherent,4 but he alleges the Defendants have
violated his constitutional rights and obstructed justice. (ECF No. 1 at 2.) He contends
his mail has been manipulated to foul his criminal case. (Id.) His attorney allegedly was
biased and redacted evidence of victimized children. (Id.) His attorney also allegedly
had prior knowledge of the obstruction of justice related to a certain Hewlett Packard
computer “connected to the 10-24-06 date when corrupt FBI agents arrest[ed him] to that
computer 10-18-07.”

(Id.)

Nesler has also filed other documents and exhibits

complaining about various issues, all of which are rambling and largely incoherent. (See
ECF Nos. 4, 8 & 11.) Nesler seeks to hold those responsible for his wrongful convictions
and incarceration accountable. (ECF No. 1 at 3.)
By way of background, on October 6, 2010, Nesler entered a guilty plea in this
district to one count of possessing computers containing images depicting child

2

Nesler appears to name the WTDF as a separate defendant; however, claims against the
WTDF are properly construed as claims against CCA.
3

The Clerk is directed to MODIFY the docket to reflect that this is a Bivens action.

4

In addition, Nesler’s handwriting is very difficult to read, so that portions of his
documents cannot be deciphered.
2

pornography and one count of receiving images depicting child pornography, in violation
of 18 U.S.C. § 2252(a). United States v. Nesler, No. 2:07-cr-20348-JPM (W.D. Tenn.)
(Order on Change of Plea, ECF No. 81). Nesler was sentenced to a 60-month term of
imprisonment, to be followed by a 10-year term of supervised release. (Id., Min. Entry,
ECF No. 84.) He did not file a direct appeal. After Nesler was released from prison, his
probation officer filed a petition on October 15, 2012, alleging Nesler had violated the
terms of supervised release. (Id., ECF No. 90.)
The same conduct that prompted the supervised release petition also resulted in
additional criminal charges being filed in this district. United States v. Nesler, No. 2:12cr-20227-STA (W.D. Tenn.) (Indictment, Sept. 27, 2012, ECF No. 6). On May 12, 2014,
Nesler entered a guilty plea to one count of possessing a cell phone containing images
depicting child pornography, in violation of 18 U.S.C. § 2252(a). (Id., Order on Change
of Plea, ECF No. 76.) On June 12, 2014, Nesler’s supervised release in the earlier case
was revoked, and he was sentenced to an additional 60 months of incarceration for that
violation. (No. 07-20348, Min. Entry, ECF No. 147.)
Nesler’s subsequent motions to withdraw his guilty plea in case number 12-20227
were denied. (No. 12-20227, ECF No. 130.) On May 26, 2015, he was sentenced to a
120-month term of imprisonment, 30 months of which is to run concurrent with the
sentence imposed for the supervised release violation. (Id., Min. Entry, ECF No. 132.)
Both the revocation of supervised release in number 07-20348 and the conviction in 1220227 are presently on appeal.

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)
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 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
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.”).
4

“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
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
5

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.”).
The claims against the USMS, a federal agency, are considered claims against the
United States. The United States can be sued only to the extent it has waived its
sovereign immunity. McGinness v. United States, 90 F.3d 143, 145 (6th Cir. 1996). A
waiver of sovereign immunity cannot be implied but must be expressed unequivocally by
Congress. United States v. Mitchell, 445 U.S. 535, 538 (1980); Johnson v. Hubbard, 698
F.2d 286, 290 (6th Cir. 1983); Jahn v. Regan, 584 F. Supp. 399, 406 (E.D. Mich. 1984).
The United States has not waived sovereign immunity and, therefore, cannot be sued in a
Bivens action. Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991) (stating that a Bivens
claim cannot be asserted against the United States government or its employees in their
official capacities).
The complaint also does not allege a viable claim against CCA, which operates the
WTDF. The Supreme Court held in Correctional Servs. Corp. v. Malesko, 534 U. S. 61
(2001), that Bivens actions may not be maintained against corporate defendants.
6

Accordingly, construing the complaint under Bivens, Nesler fails to state a claim against
Defendant CCA upon which relief may be granted.
Nesler alleges that his mail is being mishandled to foul his criminal case. (ECF
No. 1 at 2.) However, this allegation does not state a valid claim for denial of Nesler’s
First Amendment right of access to the courts. See Kensu v. Haigh, 87 F.3d 172, 175 (6th
Cir. 1996); see also Bounds v. Smith, 430 U.S. 817, 821 (1977) (“It is now established
beyond doubt that prisoners have a constitutional right of access to the courts.”). The
Supreme Court has held that
“[t]he fundamental constitutional right of access to the courts requires
prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries
or adequate assistance from persons trained in the law.” Bounds, 430 U.S.
at 828. However, Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing everything
from shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to attack
their sentences, directly or collaterally, and in order to challenge the
conditions of their confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996); see also Thaddeus-X v. Blatter, 175 F.3d 378,
391 (6th Cir. 1999) (en banc) (inmates’ First Amendment right of access to the courts
“extends to direct appeal, habeas corpus applications, and civil rights claims only”).
To have standing to pursue a First Amendment claim that he was denied access to
the courts, “a prisoner must show prison officials’ conduct inflicted an ‘actual injury,’
i.e., that the conduct hindered his efforts to pursue a nonfrivolous legal claim.” Rodgers
v. Hawley, 14 F. App’x 403, 409 (6th Cir. 2001) (citation omitted); see also Hadix, 182
7

F.3d at 405-06 (explaining how Lewis altered the “actual injury” requirement previously
articulated by the Sixth Circuit). “Actual injury” can be demonstrated by “the late filing
of a court document or the dismissal of an otherwise meritorious claim.” Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The complaint does not allege that Nesler
suffered any such actual injury due to the mishandling of mail.5
To the extent Nesler may be seeking money damages for his allegedly wrongful
convictions, such claims 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 Garrett v. United States, 469
F. App’x 465, 466 (6th Cir. 2012) (applying Heck to bar claims in a Bivens action);
Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (same). A plaintiff has no cause
5

Moreover, to the extent Nesler may be complaining that he was hindered in his criminal
cases, he has been represented by counsel at every stage of those proceedings.
8

of action under Bivens if the claims in the action hinge on factual proof that would call
into question the validity of a 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.
Here, Nesler is directly challenging the validity of his prosecution and convictions;
therefore, any claims for money damages are barred by Heck. Nesler must have his
convictions overturned on direct appeal or via collateral attack before any such claims
can accrue.
For the foregoing reasons, Nesler’s complaint is dismissed in its entirety for
failure to state a claim upon which relief can be granted.
III. 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,
9

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.”).

In this case, leave to amend is not warranted because the

deficiencies in Nesler’s complaint cannot be cured.
IV. CONCLUSION
The Court DISMISSES Nesler’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). Leave
to amend is DENIED deficiencies in Nesler’s complaint cannot be cured.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal
by Nesler 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.

10

The Court must also address the assessment of the $505 appellate filing fee if
Nesler 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, Nesler 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 Nesler, 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).
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE 

11