Luckett et al v. Memphis Police Department et al

Filing 6

ORDER TO MODIFY DOCKET ORDER DISMISSING COMPLAINT, ORDER CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Chief Judge S. Thomas Anderson on 5/15/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WALLACE LUCKETT,
Plaintiff,
vs.
MEMPHIS POLICE DEPARTMENT, et.al.,
Defendants.

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No. 2:16-cv-2324-STA-egb

ORDER TO MODIFY DOCKET
ORDER DISMISSING COMPLAINT,
ORDER CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On May 11, 2016, Plaintiff Wallace Luckett (“Luckett”),1 a pre-trial detainee at the
Shelby County Criminal Justice Complex, in Memphis, Tennessee, filed A Pro Se Complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court granted Luckett 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. 4). The Clerk shall record the Defendants as
Memphis Police Department (“MPD”), Officer First Name Unknown (“FNU”) Hudson, Officer
FNU Myers, and the Chief of MPD.
BACKGROUND
Luckett alleges that Defendants Hudson and Myers were inside his home, but Luckett
does not know how they entered his home. (Compl. at 2, ECF No. 1.) Luckett contends that

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The docket also lists Denise Luckett as a Plaintiff. Denise Luckett is not mentioned in
the Pro Se Complaint, did not sign the pleadings, and did not submit an in forma pauperis
affidavit. Additionally, as a pro se plaintiff, Luckett cannot represent himself and another person
under 28 USC § 1654. Denise Luckett is therefore not a proper party and the Clerk is
DIRECTED to remove her from the docket.

any evidence seized was fruit of the poisonous tree stemming from the “initial wrongful search.”
(Id.) Although the allegation is somewhat confusing, Luckett also contends that the same
officers obtained his information in another case. (Id.) Luckett wants to bring to light the
misconduct of the officers and the public corruption for actions taking place on November 7,
2014, and January 8, 2016. Luckett alleges that he has been sick in jail and lost his job. (Id.)
Luckett seeks a settlement of $100,000 for pain and suffering due to official misconduct and
false imprisonment. (Id.) The Court notes that Luckett was arrested on January 8, 2016, and
then was indicted on June 7, 2016, for aggravated burglary. (Indictment No. 16 03645, See
jssi.shelbycountytn.gov). His case remains pending.
SCREENING 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 Pro Se Complaint in this case states a claim on which relief may
be granted, the Court applies the standards under Fed. R. Civ. P. 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.

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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
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.”).
ANALYSIS
Luckett filed his Pro Se Complaint pursuant to 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).
I. Claims against Supervisors
The Pro Se Complaint contains no specific factual allegations against the Chief of MPD.
Legal conclusions are not sufficient to support a claim for violation of rights. 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. Furthermore, Luckett has no claim against the
police chief merely because of his supervisory position. 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 individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific incident
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
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 Pro Se
Cmplaint does not allege that the Chief of MPD, through his own actions, violated Luckett’s
rights. Therefore, Luckett’s claim against the police shief is DISMISSED.

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II. Claims Against MPD
Plaintiff has next sued the Memphis Police Department. The Court construes those
allegations as against the City of Memphis.

When a § 1983 claim is made against a

municipality, the court must analyze two distinct issues: (1) whether 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 is
dispositive of plaintiff’s claim against the City of Memphis.
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. Serv., 436 U.S. 658, 691 (1978) (emphasis in original); 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 Co., 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 Co. v. Dodson, 454 U.S. at 326 (citation

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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)) (emphasis in original).
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
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.
Correctional 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). The allegations of the Pro Se Complaint fail to
identify an official policy or custom which caused injury to Luckett. Instead, it appears that
Luckett is suing the City of Memphis because the City of Memphis employed persons who
allegedly violated his rights.

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III. Statute of Limitations
Luckett contends that police illegally entered his home on November 7, 2014, and
January 8, 2016. 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 § 1983 actions
arising in Tennessee is the one-year limitations provision found in Tenn. Code Ann. § 28-3104(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).
Luckett’s claims from an incident on November 7, 2014 took place more than a year before this
complaint was filed on May 11, 2016. Therefore, any claims from that date are DISMISSED as
time barred.
IV. Anti-Injunction Act
Luckett alleges an illegal search and seizure and false imprisonment in violation of the
Fourth Amendment. This Court cannot order that Plaintiff’s state criminal charges be dismissed
or otherwise interfere in those proceedings. Under the Anti-Injunction Act, 28 U.S.C. § 2283,
“[a] court of the United States may not grant an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction,
or to protect or effectuate its judgments.” The Sixth Circuit has explained that “[t]he Act thereby
creates ‘an absolute prohibition against enjoining state court proceedings, unless the injunction
falls within one of three specifically defined exceptions,’ which are set forth in the statutory
language.” Andreano v. City of Westlake, 136 F. App’x 865, 879-80 (6th Cir. 2005) (quoting Atl.
Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970)).

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Federal

injunctions against state criminal proceedings can be issued only “under extraordinary
circumstances where the danger of irreparable loss is both great and immediate.” Younger v.
Harris, 401 U.S. 37, 45 (1971) (internal quotation marks and citation omitted).

The Supreme

Court has emphasized that
[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of
having to defend against a single criminal prosecution, could not by
themselves be considered “irreparable” in the special legal sense of that term.
Instead, the threat to the plaintiff’s federally protected rights must be one that
cannot be eliminated by his defense against a single criminal prosecution.
Id. at 46. Irreparable injury may be found only where the statute under which the Plaintiff is
charged is “flagrantly and patently violative of express constitutional prohibitions, or where there
is a showing of bad faith, harassment, or other unusual circumstances that would call for
equitable relief.” Mitchum v. Foster, 407 U.S. 225, 231 (1972) (internal quotation marks,
ellipses and citations omitted).

In this case, Plaintiff does not allege any unusual or

extraordinary circumstances that cannot be addressed through his defense in the criminal
proceeding. Therefore, any claim based on the search of Luckett’s property or his detention is
DISMISSED.
V. Claim for Loss of Job
The Pro Se Complaint alleges that Luckett’s confinement has resulted in his losing his
job. Any claims arising from Luckett’s imprisonment 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

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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 Schilling v. White, 58 F.3d 1081,
1086 (6th Cir. 1995) (same) (footnotes omitted). Plaintiff 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;
Schilling, 58 F.3d at 1086. Cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (whenever the
relief sought is release from prison, the only remedy is through a habeas petition, not a § 1983
complaint).
Here, Heck applies to bar Luckett’s claim for loss of job arising from his arrest and
subsequent criminal prosecution. Luckett has not yet had his conviction overturned on direct
appeal. Luckett must have the conviction overturned on direct appeal or via collateral attack
before any claims can accrue. For all of the foregoing reasons, Luckett’s complaint is subject to
dismissal in its entirety for failure to state a claim on which relief may be granted.
VI. 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

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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, the Court concludes that leave to amend is not warranted.
CONCLUSION
The Court DISMISSES Luckett’s Pro Se 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 Luckett’s Pro Se complaint cannot be cured.
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. Therefore, it is 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/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 15, 2017.

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