McKay v. Weirich et al

Filing 6

ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 5/2/16. (Todd, James)

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

)
)
)
)
)
)
)
)
)

No. 15-2386-JDT-cgc

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

On June 5, 2015, Plaintiff Montopalus McKay (“McKay”), who is incarcerated at the
Shelby County Correctional Center in Memphis, Tennessee, filed a pro se complaint pursuant to
42 U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.)
The Court issued an order on June 8, 2015, granting leave to proceed in forma pauperis and
assessing 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 Amy Weirich, District
Attorney General for the Thirtieth Judicial District at Memphis, and Mary Elizabeth Thomas,
Grand Jury Foreperson.
I. The Complaint
McKay’s complaint alleges that he was fraudulently indicted because the grand jury
foreperson, Defendant Thompson, is “not a valid elected government official in violation of
public government office due to her terms of office has exceeded.” (ECF No. 1 at 2.) Further,

McKay alleges that Defendant Weirich acted outside the scope of her authority “for allowing
prosecution and public corruption to be unlawfully committed.” (Id.) He also alleges that the
continued corruption is being covered up by the orders and judgments of Shelby County
Criminal Court Judge Chris Craft, who is not a named party. (Id.) McKay seeks immediate
release from prison and monetary compensation. (Id. at 3.)
By way of background, McKay was indicted in state court on one count of attempted
aggravated rape and one count of aggravated sexual battery. See http://jssi.shelbycountytn.gov
(Indictment # 13 05845). On May 4, 2015, he entered a guilty plea to the lesser offense of
attempted rape and was sentenced to six years in prison; the charge of aggravated sexual battery
was dismissed by nolle prosequi. (Id.)
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 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.

2

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
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

3

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.”).
McKay 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.

4

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).
McKay has no claim against Defendant Thomas. Grand jurors are entitled to absolute
quasi-judicial immunity.

Richardson v. McKnight, 521 US. 399, 417-18 (1987); Butz v.

Economou, 438 U.S. 478, 509-10 (1978); Imbler, 424 U.S. at 423 n.20, 437. Therefore, they are
not liable for money damages.
McKay 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).

McKay’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 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).

5

When a prisoner seeks to challenge his conviction and the validity and/or duration of his
confinement, his sole remedy is a petition for a writ of habeas corpus. Preiser v. Rodriguez, 411
U.S. 475, 500 (1973); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)
(“Challenges to the validity of any confinement or to particulars affecting its duration are the
province of habeas corpus.”). On June 5, 2015, the same day McKay filed the complaint in this
case, he also filed a document titled “Habeas Corpus 28 USC § 2254,” which was docketed as a
habeas petition. McKay v. Thomas, et al., No. 15-2387-STA-cgc (W.D. Tenn.). That pending
petition raises claims virtually identical to those asserted in this case.

(Id., ECF No. 1.)

Therefore, the Court expressly declines to also address the complaint in this case as a habeas
petition.
For all of the foregoing reasons, McKay’s complaint is subject to dismissal in its entirety
for failure to state a claim on which relief can be granted.
III. Motion for Trial Transcript
On January 6, 2016, McKay filed a motion asking this Court to order delivery of his trial
transcript and the transcript from a hearing on Aug 10, 2015. (ECF No. 5.) The trial to which he
refers appears to have been in a different state court case, in which trial was held on September
15-16, 2015. McKay was convicted on two counts of aggravated assault; on December 4, 2015,
he was sentenced to 15 years on each count, to run consecutive. The case is currently on appeal.
See http://jssi.shelbycountytn.gov (Indictment #15 03854). However, the requested transcripts
are not relevant to or needed in this federal court proceeding; therefore, the requests should be
submitted in state court. McKay’s motion is DENIED.
IV. Standard for Leave to Amend

6

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
amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, because the deficiencies in McKay’s complaint cannot be cured, leave to amend is
not warranted.
V. Conclusion
The Court DISMISSES McKay’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)-(iii) and 1915A(b)(1)-(2). Leave to
amend is DENIED because the deficiencies in McKay’s complaint cannot be cured.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
McKay in this case would be taken in good faith. The good faith standard is an objective one.

7

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 McKay would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if McKay
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,

McKay 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 McKay, 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.

8

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

9