Jones v. Hillyard et al

Filing 7

ORDER DISMISSING CLAIMS, 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 7/20/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

QUINCY Q. JONES
Plaintiff,
VS.
R. HILLYARD, Investigator;
M. BUSH, Detective Case Officer;
M. SMITH, Arresting Officer;
AMY P. WEIRICH, District Attorney;
OFFICER TILLMAN;
Defendants.

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No. 16-2369-STA-egb

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

On May 27, 2016, Plaintiff Quincy Q. Jones, a pretrial detainee at the Shelby County
Criminal Justice Complex in Memphis, Tennessee, filed pro se a Complaint pursuant to 42
U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. In an order issued May
31, 2016, the Court granted Jones 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). The
Clerk shall record the defendants as Investigator R. Hillyard, Detective M. Bush, Arresting
Officer M. Smith, District Attorney General Amy Weirich, and Officer First Name Unknown
(“FNU”) Tillman.
BACKGROUND
Jones alleges malicious prosecution based on the fact that Officer Bush, who is not a
prosecutor endorsed the indictment. (Compl. 2.) Jones contends that he was bound over to the

Grand Jury, even though he was not properly identified at a preliminary hearing. (Id.) Jones
further alleges that Defendant Bush is improperly named as the “prosecutor” on the indictment.
(Id. at 3.) Jones contends that an indictment is required to contain the name of a prosecutor prior
to its submission to the grand jury. “Prosecutor” refers to an individual “who sets in motion the
machinery of criminal justice against a person whom he suspects or beleaves (sic) to be guilty of
a crime. . . and is not an officer of the government.” (Id. at 3.) Jones alleges that his
incarceration has caused him mental stress and prevented him from working to support his
family. (Id. at 4.) Jones seeks $150,000 for pain and suffering plus lost wages. (Id. at 5.)
On March 3, 2016, Jones was indicted in state court on two counts of aggravated
burglary, one count of robbery, one count of aggravated assault, and one count of employing a
firearm with intent to commit a dangerous felony. On February 28, 2017, Jones pleaded guilty to
the charges for aggravated burglary, robbery, and aggravated assault.
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 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-

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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.”).
“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

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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, 415 F. App’x 608, 612-13 (6th
Cir. 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’”) (quotation omitted); 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.”).
ANALYSIS
I. Section 1983
Jones 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 Court holds that Jones has failed to state a claim for relief. First, the Complaint
contains no factual allegations against any of the individual Defendants except for allegations
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that Defendant Bush wrongfully endorsed the indictment. 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. Therefore, Jones’s claims against the individual Defendants are
DISMISSED.
Likewise, the Complaint fails to state a claim against District Attorney Weirich. Jones
cannot sue District Attorney Weirich for money damages arising from the institution of criminal
proceedings against Jones. 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). Jones’s claim for money damages against District Attorney
Weirich 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, Jones cannot sue the District Attorney
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”). Jones’s claim against District Attorney
Weirich is DISMISSED.
Even if Jones had stated a claim against any of the individual Defendants, the Complaint
fails to state a plausible malicious prosecution claim. 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.

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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 maliciousprosecution 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 Jones was ultimately indicted by the grand jury on all of the charges
establishes probable cause for the charges. “[T]he finding of an indictment, fair upon its 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
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indictments, any malicious prosecution claim fails because Jones cannot show the absence of
probable cause. Perhaps most importantly, Jones has subsequently pleaded guilty to three of the
charges. As a result, Jones cannot show that the charges were resolved in his favor, an essential
element of his malicious prosecution claim. Therefore, Jones’s malicious prosecution claim is
DISMISSED.
II. 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). In this case, the Court concludes that leave to amend is not warranted.
CONCLUSION
The Court DISMISSES Jones’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 Jones’s Complaint cannot be cured.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Jones 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.

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Therefore, it is CERTIFIED, pursuant to 28 U.S.C. §1915(a)(3), that any appeal in this
matter by Jones would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Jones
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, Jones
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 Jones, 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: July 20, 2017.

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