Pratcher v. McCollum et al
ORDER GRANTING MOTION TO AMEND, DENYING REMAINING MOTIONS, 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 6/6/17. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
LT. MCCOLLUM, et. al.,
ORDER GRANTING MOTION TO AMEND, DENYING REMAINING MOTIONS,
DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN
IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On September 6, 2016, Plaintiff Warren Pratcher (“Pratcher”), who is currently
incarcerated at the Shelby County Criminal Justice Center (“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.)
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. 4.) The Clerk shall record the defendants as Lieutenant (“Lt.”) First
Name Unknown (“FNU”) McCollum, Detective (“Det.) William Acred, Det. Jonathan Overly,
Sergeant (“Sgt.”) K. Baker, Det. J. Henry, Det. J. Wright, Det. B. Scott, Sgt. R. Simer, Det. FNU
Goedecke, Det. D. Knowlton, and Det. FNU Grigsby. Defendants are sued in their individual
and official capacities.
On September 6, 2016, Pratcher filed a motion to appoint counsel.
(ECF No. 3.)
Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney to represent any such person
unable to employ 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 “§
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 Pratcher has not met the threshold showing of likelihood of success, the
motion is DENIED.
Pratcher alleges claims under the Fourth Amendment, deprivation of liberty and property
under the Due Process clause of the Fourteenth Amendment, and the tort of intentionally
intercepting a wire, oral, or electronic communication. (Compl. Attachment at 1, ECF No. 1-1.)
Pratcher contends that on September 13, 2014, he was arrested during the execution of a search
warrant on 7035 PackBrook Lane in Memphis, Tennessee, and was subsequently indicted on two
counts of unlawful possession of a controlled substance with intent to deliver in an amount
greater than 300 grams. (Id. at 3.) Pratcher alleges that Defendants Acred and Overly obtained
the search warrant based on a series of illegally intercepted communications and cell site
information from several cell phones. (Id.)
On November 4, 2016, Pratcher filed a motion for leave to file an amended complaint.
(ECF No. 5.) Because the motion was filed before the court screened his complaint and is
intended to supplement, rather than supersede the complaint, the motion is GRANTED. In
Pratcher’s amended complaint he adds that the information used to obtain the search warrants
was gathered by also using a stingray device. (Amended Compl. at 3, ECF No. 5.) Pratcher
seeks compensatory and punitive damages. (Amended Compl. at 10-11.)
By way of additional background, on November 13, 2014, Pratcher was indicted on two
counts of violating Tenn. Code Ann. § 39-17-417. (https://cjs.shelbycountytn.gov Indictment
No. 14 05852-1464445). On November 6, 2015, Pratcher pleaded guilty to one count; the
second count was dismissed. (Id.) On December 30, 2016, Pratcher filed a petition for postconviction relief, which was denied on January 9, 2017. (Id.)
The Court is required to screen prisoner complaints and to dismiss any complaint, or any
portion thereof, if the complaint—
is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
seeks monetary relief from a defendant who is immune from such
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 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.”).
“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
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
Pratcher filed his Pro Se 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
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
Statute of Limitations
As a threshold matter, Pratcher’s Pro Se Complaint is 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 § 1983 actions arising in Tennessee is the one-year
limitations provision found in Tennessee Code Annotated § 28-3-104(a). Roberson v. Tenn., 399
F.3d 792, 794 (6th Cir. 2005). A claim based on an unlawful search and seizure accrues on the
date of the search. Michel v. City of Akron, 278 F. App’x 477, 480 (6th Cir. 2008). Here, the
search occurred on August 4, 2014, and the limitations period expired one year later on August
4, 2015. Plaintiff signed his complaint more than two years later on August 27, 2016. (Compl.
at 3, ECF No. 1.) Pratcher’s Pro Se Complaint is time barred, and, is therefore DISMISSED.
Pratcher’s motions for appointment of an investigation officer (ECF No. 6) and request
for admissions (ECF No. 7) are DENIED as moot.
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
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 and that no amendment
would cure the untimeliness of the Pro Se Complaint.
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. 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.
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.
The Court DISMISSES Pratcher’s complaint as to the Defendants 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 Pratcher’s complaint
cannot be cured.
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
UNITED STATES DISTRICT JUDGE
Date: June 6, 2017.
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