Frith v. State of Tennessee et al
Filing
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ORDER DENYING 3 6 11 MOTIONS TO APPOINT COUNSEL, 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 8/12/16. (Todd, James)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
RICKY FRITH,
Plaintiff,
VS.
STATE OF TENNESSEE, ET AL.,
Defendants.
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No. 15-2761-JDT-tmp
ORDER DENYING MOTIONS TO APPOINT COUNSEL,
DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On November 23, 2015, Plaintiff Ricky Frith (“Frith”), who is incarcerated at the Shelby
County Criminal Justice Complex (“Jail”) 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). In an order issued November 24, 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 the
State of Tennessee,1 Shelby County, Sheriff Bill Oldham, District Attorney Amy Weirich,
1
The Court construes the claims against the District Attorney General’s Office as claims
against the State of Tennessee, which is a named Defendant. The Clerk is DIRECTED to
remove the District Attorney General’s Office as a defendant.
Assistant District Attorney Lora Fowler, Public Defender Samuel L. Perkins and Criminal Court
Judge James M. Lammey of the Thirtieth Judicial District, Division 5.
On November 23, 2015 and December 14, 2015, Frith filed motions to appoint counsel.
(ECF Nos. 3 & 6.) 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 Ҥ 1915(d) 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
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 Frith has not met the threshold showing of a likelihood of success, the
motions are DENIED.
2
I. The Complaint
Frith alleges that on June 20, 2008, the State of Tennessee, Shelby County, arrested him
for especially aggravated robbery.2 Frith was found guilty by a jury on September 3, 2010.
(ECF No. 1-1 at 1.) Frith alleges that his conviction was later overturned on post-conviction on
April 22, 2015. (Id.) However, there appears to be some confusion on Frith’s part, because an
opinion of the Tennessee Court of Criminal Appeals affirmed the trial court’s denial of postconviction relief on December 10, 2014, and the Tennessee Supreme Court subsequently denied
review. See Frith v. State, No. W2013-02435-CCA-R3-PC, 2014 WL 6977720 (Tenn. Crim.
App. Dec. 10, 2014), perm. app. denied, (Tenn. Apr. 13, 2015). The Shelby County Criminal
Court website does note that the criminal proceeding was “disposed” on April 22, 2015.
Http://jssi.shelbycountytn.gov (Indictment # 08 06733). However, the website also shows a
disposition code of “AF” for the post-conviction petition, meaning it was affirmed. Id.
At the time of his arrest on the attempted aggravated burglary charge, Frith alleges he
was on probation for case # 05056-07109089, which was subsequently revoked by the State of
Tennessee after the arrest. (ECF No. 1-1 at 1.) On August 25, 2008, while on bond for the June
20, 2008, arrest and before his probation was revoked, he was again arrested and subsequently
indicted for theft of property $1000 - $10,000 on indictment number 08 07518 (Id.; see also
http://jssi.shelbycountytn.gov (Indictment # 08 07518)). Frith contends that he had no choice but
to accept a plea agreement for that case. (ECF No. 1-1 at 1.)
Frith alleges that while he was incarcerated for the three aforementioned crimes, his
father passed away on April 19, 2009, leaving him an inheritance, which he cannot find because
2
Although not specifically stated in his complaint, on October 9, 2008, a grand jury in
Shelby County, Tennessee returned an indictment charging Frith with attempted aggravated
burglary. See http://jssi.shelbycountytn.gov (Indictment # 08 06733).
3
it was stolen. Frith contends that if he had not been maliciously prosecuted and ineffectively
represented none of the “miscarriages of justices” would have taken place. (Id.) He does not
seek any specific relief.
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.
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
4
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.
Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne’s
5
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.”).
Frith 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).
The complaint contains no specific factual allegations against any of the individual
defendants. When a complaint fails to allege any action by a defendant, it necessarily fails to
“state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570.
6
Plaintiff cannot sue the State of Tennessee under 42 U.S.C. § 1983. The Eleventh
Amendment to the United States Constitution provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has been construed to
prohibit citizens from suing their own states in federal court. Welch v. Tex. Dep’t of Highways &
Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Employees of Dep’t of Pub. Health & Welfare v. Mo. Dep’t of Pub. Health &
Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection & Advocacy v. Stewart,
131 S. Ct. 1632, 1638 (2011) (“A State may waive its sovereign immunity at its pleasure, and in
some circumstances Congress may abrogate it by appropriate legislation. But absent waiver or
valid abrogation, federal courts may not entertain a private person’s suit against a State.”
(citations omitted)). By its terms, the Eleventh Amendment bars all suits, regardless of the relief
sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its sovereign immunity.
Tenn. Code Ann. § 20-13-102(a). Moreover, a state is not a person within the meaning of 42
U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002);
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
The complaint does not assert a valid claim against Shelby County. When a § 1983 claim
is made against a municipality or county, the court must analyze two distinct issues: (1) whether
the plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the
municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S.
115, 120 (1992). The second issue would be dispositive of Frith’s claims against Shelby County.
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A local government “cannot be held liable solely because it employs a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691 (1978); see also Searcy v. City of Dayton, 38
F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). A
municipality cannot be held responsible for a constitutional deprivation unless there is a direct
causal link between a municipal policy or custom and the alleged constitutional deprivation.
Monell, 436 U.S. at 691-92; Deaton v. Montgomery Cnty., Ohio, 989 F.2d 885, 889 (6th Cir.
1993). To demonstrate municipal liability, a plaintiff “must (1) identify the municipal policy or
custom, (2) connect the policy to the municipality, and (3) show that his particular injury was
incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003)
(citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). “Where a government
‘custom has not received formal approval through the body’s official decisionmaking channels,’
such a custom may still be the subject of a § 1983 suit.” Alkire, 330 F.3d at 815 (quoting Monell,
436 U.S. at 690-91). The policy or custom “must be ‘the moving force of the constitutional
violation’ in order to establish the liability of a government body under § 1983.” Searcy, 38 F.3d
at 286 (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)). “[T]he
touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality from acts of
employees of the municipality, and thereby make clear that municipal liability is limited to action
for which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S.
112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986)).
Although civil rights plaintiffs are not required to plead the facts demonstrating
municipal liability with particularity, Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993), the complaint must be sufficient to put the
8
municipality on notice of the plaintiff’s theory of liability, see, e.g., Fowler v. Campbell, No.
3:06CV-P610-H, 2007 WL 1035007, at *2 (W.D. Ky. Mar. 30, 2007); Yeackering v. Ankrom,
No. 4:05-CV-00018-M, 2005 WL 1877964, at *2 (W.D. Ky. Aug. 5, 2005); Oliver v. City of
Memphis, No. 04-2074-B, 2004 WL 3316242, at *4 (W.D. Tenn. Dec. 2, 2004); cf. Raub v. Corr.
Med. Servs., Inc., No. 06-13942, 2008 WL 160611, at *2 (E.D. Mich. Jan. 15, 2008) (denying
motion to dismiss where complaint contained conclusory allegations of a custom or practice);
Cleary v. Cnty. of Macomb, No. 06-15505, 2007 WL 2669102, at *20 (E.D. Mich. Sept. 6, 2007)
(same); Morningstar v. City of Detroit, No. 06-11073, 2007 WL 2669156, at *8 (E.D. Mich.
Sept. 6, 2007) (same); Chidester v. City of Memphis, No. 02-2556 MA/A, 2006 WL 1421099, at
*3 (W.D. Tenn. June 15, 2005). Frith’s complaint does not allege that he was injured by an
unconstitutional policy or custom of Shelby County.
Any claims against Defendant Oldham appear to be based solely on his position as the
Sheriff of Shelby County. 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 subordinates, but fails to act, generally cannot be held liable in
his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City
9
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, through his own actions, violated Frith’s constitutional
rights.
Frith cannot sue Defendants Weirich or Fowler 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).
Frith’s claim for money damages against
Defendants Weirich and Fowler 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).
Frith also has no claim against Defendant Perkins. Courts have uniformly held that
attorneys are not state actors who can be sued under § 1983. See Polk County v. Dodson, 454
U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”);
Deas v. Potts, 547 F.2d 800 (4th Cir. 1976) (“A private attorney who is retained to represent a
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criminal defendant is not acting under color of state law, and therefore is not amendable to suit
under § 1983.”); Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorney who
is appointed by the court does not act under color of state law); Haley v. Walker, 751 F.2d 284,
285 (8th Cir. 1984) (per curiam) (attorney appointed by federal court is not a federal officer who
can be sued under Bivens).
Likewise, Frith has no claims against Defendant Lammey. It is well settled that judges,
in the performance of their judicial functions, are absolutely immune from civil liability. Mireles
v. Waco, 502 U.S. 9, 9-10 (1991); Stump v. Sparkman, 435 U.S. 349, 363 (1978); 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). Whether a judge or other official is entitled to absolute immunity in a given case
turns on a “functional” analysis. Harlow v. Fitzgerald, 457 U.S. 800, 810-11 (1982). The
“touchstone” for applicability of absolute judicial immunity is “performance of the function of
resolving disputes between parties, or of authoritatively adjudicating private rights.” Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993). Frith does not specifically allege what
Lammey did that supposedly violated his constitutional rights. However, any actions taken by
Lammey during the course of the criminal proceedings, such as making rulings and issuing
orders and judgments, are within in the scope of his judicial function; therefore, Frith claims
against Defendant Lammey are barred by judicial immunity.
Frith’s claims against the Defendants for false arrest/arrest without probable cause and
false imprisonment are time barred. 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). The limitations period for
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§ 1983 actions arising in Tennessee is the one-year limitations provision found in Tenn. Code
Ann. § 28-3-104(a). Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005); Hughes v.
Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000); Berndt v. Tennessee, 796 F.2d 879, 883 (6th
Cir. 1986). The Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384, 391-92, 397
(2007), makes clear that a claim for false arrest or false imprisonment accrues at the time of
arrest or, at the latest, when detention without legal process ends.3
The Sixth Circuit has held that a Fourth Amendment claim based on an allegedly
unlawful arrest accrues at the time of arrest. Fox v. DeSoto, 489 F.3d 227, 233, 235 (6th Cir.
2007).
Frith was arrested on June 20, 2008 and August 25, 2008, and indicted on October 9,
2008 and November 25, 2008, respectively. He filed the complaint much more than one year
later, on November 23, 2015; therefore, the false arrest and false imprisonment claims are time
barred.
3
The Supreme Court explained:
Reflective of the fact that false imprisonment consists of detention without
legal process, a false imprisonment ends once the victim becomes held pursuant
to such process-when, for example, he is bound over by a magistrate or arraigned
on charges. . . . Thereafter, unlawful detention forms part of the damages for the
“entirely distinct” tort of malicious prosecution, which remedies detention
accompanied, not by absence of legal process, but by wrongful institution of legal
process. . . . “If there is a false arrest claim, damages for that claim cover the
time of detention up until issuance of process or arraignment, but not more. From
that point on, any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than detention itself.” . .
. Thus, petitioner’s contention that his false imprisonment ended upon his release
from custody, after the State dropped the charges against him, must be rejected. It
ended much earlier, when legal process was instituted against him, and the statute
[of limitations] would have begun to run from that date.
Id. at 389-90 (emphasis in original; footnote and citations omitted); see also id. at 390 n.3 (“This
is not to say, of course, that petitioner could not have filed suit immediately upon his false arrest.
While the statute of limitations did not begin to run until petitioner became detained pursuant to
legal process, he was injured and suffered damages at the moment of his arrest, and was entitled
to bring suit at that time.”).
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The complaint also does not state a valid malicious prosecution claim against any
Defendant. The Sixth Circuit “recognize[s] a separate constitutionally cognizable claim of
malicious prosecution under the Fourth Amendment,” which “encompasses wrongful
investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d 709,
715-16 (6th Cir. 2006) (internal quotation marks omitted). The “tort of malicious prosecution” is
“entirely distinct” from that of false arrest, as the malicious-prosecution tort “remedies detention
accompanied not by absence of legal process, but by wrongful institution of legal process.”
Wallace, 549 U.S. at 390 (2007) (internal quotation marks omitted).
To succeed on a malicious-prosecution claim under § 1983 when the claim
is premised on a violation of the Fourth Amendment, a plaintiff must prove the
following: First, the plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant “ma[d]e, influence[d], or participate[d]
in the decision to prosecute.” Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007);
see also McKinley v. City of Mansfield, 404 F. 3d 418, 444 (6th Cir. 2005);
Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001); Skousen v.
Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002). Second, because a § 1983
claim is premised on the violation of a constitutional right, the plaintiff must show
that there was a lack of probable cause for the criminal prosecution, Fox, 489 F.3d
at 237; Voyticky, 412 F.3d at 675. Third, the plaintiff must show that, “as a
consequence of a legal proceeding,” the plaintiff suffered a “deprivation of
liberty,” as understood in our Fourth Amendment jurisprudence, apart from the
initial seizure. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007); see Gregory v.
City of Louisville, 444 F.3d 725, 748-50 (6th Cir. 2006) (discussing the scope of
“Fourth Amendment protections . . . beyond an initial seizure,” including
“continued detention without probable cause”); cf. Heck v. Humphrey, 512 U.S.
477, 484, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994) (“[U]nlike the related cause of
action for false arrest or imprisonment, [an action for malicious prosecution]
permits damages for confinement imposed pursuant to legal process.”). Fourth,
the criminal proceeding must have been resolved in the plaintiff’s favor. Heck,
512 U.S. at 484, 114 S. Ct. 2364 (“One element that must be alleged and proved
in a malicious prosecution action is termination of the prior criminal proceeding
in favor of the accused.”).
Sykes v. Anderson, 625 F. 3d 294, 308-09 (6th Cir. 2010) (footnote omitted).
The fact that Frith was ultimately indicted by the grand jury on all of the charges shows
the existence of probable cause for the charges. “[T]he finding of an indictment, fair upon its
13
face, by a properly constituted grand jury, conclusively determines the existence of probable
cause for the purpose of holding the accused to answer.” Higgason v. Stephens, 288 F. 3d 868,
877 (6th Cir. 2002) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). In light of the
grand jury indictments, any malicious prosecution claim fails because Frith cannot show the
absence of probable cause. Furthermore, none of the criminal proceedings appear to have been
resolved in Frith’s favor.
For all of the foregoing reasons, Frith’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
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
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amendment comports with due process and does not infringe the right of access to the courts.”).
In this case, because the deficiencies in Frith’s complaint cannot be cured, leave to amend is not
warranted.
IV. Conclusion
The Court DISMISSES Frith’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) and 1915A(b(1). Leave to amend is
DENIED because the deficiencies in Frith’s complaint cannot be cured.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Frith 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. Therefore, it is CERTIFIED, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal in this matter by Frith would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Frith
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, Frith is
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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 Frith, 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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