Gwin v. Collins-Williams et al

Filing 20

ORDER SEVERING CLAIMS, DISMISSING REMAINING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, NOTIFYING PLAINTIFF OF APPELLATE FILING FEE AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g). Signed by Judge James D. Todd on 6/4/19. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROBERT IRWIN GWIN,
Plaintiff,
VS.
TAMIEKA COLLINS-WILLIAMS,
ET AL.,
Defendants.

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No. 2:17-cv-2054-JDT-cgc

ORDER SEVERING CLAIMS, DISMISSING REMAINING CLAIMS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
AND NOTIFYING PLAINTIFF OF RESTRICTIONS UNDER 28 U.S.C. § 1915(g)

On January 20, 2017, Plaintiff Robert Irwin Gwin, an inmate at the Northwest Correctional
Complex (NWCX) in Tiptonville, Tennessee, filed pro se a complaint pursuant to 42 U.S.C.
§ 1983, accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court
granted Gwin 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. 11.) The Clerk shall
record the Defendants as Tamieka Collins-Williams, Parole Officer with the State of Tennessee;
former Shelby County Sheriff Bill Oldham; Nicky Jordan, Internal Affairs Officer at the Turner
Center Industrial Complex (TCIX); Memphis Police Department (MPD) Detectives D. Dotson, L.
Mobley, O. Edwards, B. Evans and J. Knowlton; Tennessee Department of Correction (TDOC)
Assistant Commissioner Alisha Shoates-James; the Tennessee Board of Parole; Ned Ray
McWherter, the deceased former Governor of Tennessee; Sandra E. Bowman, an Administrative

Secretary at TCIX; and TCIX Warden Kevin Genovese.1 Gwin appears to sue Collins-Williams,
Shoates-James, Bowman, Jordan, Genovese, and the other MPD and TCIX employees in their
individual capacities.2 (ECF 13 at PageID 97, 102; ECF 18 at PageID 133, 142 & 146.) He sues
Defendants McWherter and the Tennessee Board of Parole in their official capacities only.
(ECF No. 13 at PageID 97.) 3
Gwin’s original complaint is very difficult to follow. He alleges that on October 6, 2016,
he was present at TCIX to assist an inmate with a clemency petition. (ECF No. 1 at PageID at
2-3.) According to his complaint, Gwin is a paralegal and notary public. (Id. at PageID 2.) While
meeting with the inmate, Gwin claims Defendant Jordan approached him and placed him under
arrest on charges of criminal trespass and impersonation of a licensed professional. (Id. at
PageID 4.) Gwin believes that Officer Jordan arrested him for being a convicted felon and on
suspicion of smuggling contraband into the jail and appearing at the facility without the knowledge
of his parole officer. (Id. at PageID 5.) The next day, Gwin’s brother posted Gwin’s bail. (Id.)

1

Gwin spells the Warden’s name “Geneovese,” but the correct spelling is Genovese. See
https://www.tn.gov/content/tn/correction/sp/state-prison-list/turney-center-industrialcomplex.html. The Clerk is DIRECTED to modify the docket to correct that misspelling.
2

Gwin’s initial complaint noted that suit against some of the Defendants was in both
their individual and official capacities. (ECF No. 1 at PageID 1.) His later amended complaints,
however, specify that he is suing the Defendants “Individually.” (ECF No. 18 at PageID 133.)
3

Gwin also seeks to sue a “Jane or John Doe” defendant in his complaint and names a
John Doe at the Hickman County Sheriff’s Office in his second amended complaint. Service of
process cannot be made on an unidentified party. The filing of a complaint against such “John
Doe” defendants does not toll the running of the statute of limitation against that party. See Cox
v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023,
1028 (6th Cir. 1968). The Clerk is directed to terminate the reference to the Jane or John Doe
defendant on the docket.
2

On October 10, 2016, Gwin received a phone call from his parole officer, Defendant
Collins-Williams, regarding the October 6 incident at the jail. (ECF No. 1 at PageID 2.) Gwin
claims he forwarded Collins-Williams a copy of an email he had received from Defendant
Bowman approving his visit to the jail.4 (Id.) Nevertheless, Gwin states that a John Doe Assistant
Commissioner signed a warrant for his arrest. (Id. at PageID 14.) (Gwin later asserts that this was
Defendant Shoates-James. (ECF No. 13 at PageID 100.)) The same day, Defendant Dotson and
eight armored MPD officers allegedly arrived at Gwin’s apartment to arrest him for violating his
parole based on his October 6 arrest. (ECF No. 1 at PageID 14.) The officers ordered Gwin out
of his apartment but refused to produce the warrant for his arrest or the search of his apartment
and car that followed. (Id.) Gwin alleges Defendants Dotson and Evans placed his apartment key
under the door to his apartment, returned later, and “ransacked Plaintiff’s apartment looking for a
‘stash of cash.’” (Id. at PageID 15-16.) Gwin alleges the detectives took clothing, jewelry, and
other property from his apartment. (Id. at PageID 16.) Gwin attempted to file a police report while
he was incarcerated at the Shelby County Jail but was only permitted to file a grievance. (Id. at
PageID 22.) Gwin’s grievance was rejected as non-grievable because his claim was unrelated to
the Jail itself. (Id.)
Gwin states that he has never faced the charges brought by Defendant Jordan for the
October 6 arrest and that the charges have been dropped. (Id. at PageID 17-18.) He claims his
initial detention by Jordan was unlawful and in violation of TDOC’s policy on legal visits. (Id. at
PageID 19-20.) He further claims that Defendant Oldham has continued to detain him since the

4

Gwin claims that Defendant Bowman previously approved legal visits to the TCIX in
April 2016 and in 2014. (ECF No. 1 at PageID 4.) He does not specify when he received
approval for the visit on October 6, 2016.
3

October 10, 2016, arrest without a warrant, probable cause for the detention, or pending criminal
charges. (Id. at PageID 21.) Gwin alleges that the arrest cost him his newly obtained job and
apartment and that he suffers from anxiety, grief, and emotional pain and suffering from the initial
October 6 arrest. (Id. at PageID 7.)
Gwin further asserts claims of wrongful arrest, false imprisonment, denial of due process
and access to parolee grievance procedures, retaliation, and discrimination against Defendants
Collins-Williams, Jordan, Oldham, Dotson, Mobley, Edwards, Evans, and Knowlton. (ECF No. 1
at PageID 24-25.) Gwin also asserts a due process claim related to his ongoing confinement
against Defendant Shoates-James. (ECF No. 13 at PageID 106.) Gwin also appears to assert
claims under the Open Meetings Act and the Tennessee Uniform Administrative Procedure Act.
(ECF No. 1 at PageID 30-31.) Gwin seeks punitive damages and compensatory damages for the
personal items that he alleges were stolen from his home. (Id. at PageID 32.)
Gwin also claims that he has twice requested that Defendant Collins-Williams initiate a
parolee grievance against the Board of Parole employees who he alleges assisted the MPD in
burglarizing his home on October 10, 2016, but she has not responded. (Id. at PageID 23.) He
states this is a violation of his due-process rights under the Fourteenth Amendment and his right
to grieve the State under the First Amendment. (Id.)
In his first amended complaint, Gwin clarifies his retaliation claim against Defendant
Jordan. (ECF No. 6.) He alleges Jordan retaliated against him for providing notary services and
legal assistance to prison inmates, which he states is “protected conduct.” (Id. at PageID 58-59.)
In his second amended complaint, Gwin alleges that Governor McWherter
unconstitutionally revoked the commutation of his 1973 sentence for first-degree murder, which
McWherter’s predecessor had commuted in 1979. (ECF No. 13 at PageID at 99-100.) He asserts

4

without support that this claim accrued when he was arrested on October 10, 2016. (Id. at PageID
100.)

Gwin also alleges that the Tennessee Board of Parole falsified government records

pertaining to his commutation in 1979 and vaguely states the Board violated his rights. (Id. at
PageID 103-04, 107.) Gwin also asserts state-law claims for intentional infliction of emotional
distress against Defendants Bowman and Jordan. (Id. at PageID 100-102.)
In his third amended complaint, Gwin alleges that Warden Genovese failed to follow
proper procedures for allowing Gwin to visit an inmate at the TCIX. (ECF No. 18 at PageID 145.)
Gwin further alleges that Genovese conspired with Defendants Jordan and Bowman, along with
Gwin’s parole officer Defendant Collins-Williams, to interfere with Gwin’s right to vote. (Id. at
PageID 134, 145, 151.) Gwin also adds a state-law claim against Defendant Jordan for libel and
slander and alleges that Jordan deprived Gwin of personal property during his October 6 arrest.
(Id. at PageID 137, 143.)
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 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), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the
complaint’s “well-pleaded” factual allegations as true and then determines whether the allegations
“plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)
5

(quoting Iqbal, 556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of
truth,” and legal conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
Although a complaint need only contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations
to make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S.
at 555 n.3.
“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, however, 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, 613 (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))).
Gwin filed his complaint pursuant to 42 U.S.C. § 1983, which 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 . . . .
To state a claim under § 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).
Gwin’s primary claims relate to his arrest on October 6, 2016, his resulting parole violation,
and his arrest on that charge on October 10, 2016. In Gwin’s second amended complaint, however,
6

he asserts additional claims against new Defendants. The proper joinder of parties in a single
lawsuit is governed by Federal Rule of Civil Procedure 20.5 Rule 20(a)(2) governs the joinder of
defendants and provides that multiple defendants may be joined in one action if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the
action.
The Seventh Circuit has cogently explained how Rule 20(a)(2) applies to prisoner plaintiffs:
[M]ultiple claims against a single party are fine, but Claim A against Defendant 1
should not be joined with unrelated Claim B against Defendant 2. Unrelated claims
against different defendants belong in different suits, not only to prevent the sort of
morass that this [multi]-claim, [multi]-defendant suit produced but also to ensure
that prisoners pay the required filing fees–for the Prison Litigation Reform Act
limits to 3 the number of frivolous suits or appeal that any prisoner may file without
prepayment of the required fees. 28 U.S.C. § 1915(g). . . .
....
. . . . A buckshot complaint that would be rejected if filed by a free person–
say, a suit complaining that A defrauded the plaintiff, B defamed him, C punched
him, D failed to pay a debt, and E infringed his copyright, all in different
transactions–should be rejected if filed by a prisoner. . . .
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Dykes v. Benson, No. 1:18-cv-664,
2018 WL 3708054, at *4 (W.D. Mich. Aug. 2, 2018) (“Permitting improper joinder in a prisoner
civil rights action also undermines the purpose of the PLRA, which was to reduce the large number
of frivolous prisoner lawsuits that were being filed in the federal courts.”).

5

Once it is determined whether the parties in a case are properly joined under Rule 20,
the joinder of multiple claims against any particular party is governed by Rule 18(a), which
provides that “[a] party asserting a claim, counterclaim, crossclaim, or third-party claim may
join, as independent or alternative claims, as many claims as it has against an opposing party.”
7

Some of the claims in the second amended complaint are concerned with Gwin’s sentence
commutation from 1979 and revocation of commutation in 1994. Gwin also brings related claims
against the Tennessee Board of Parole. Those additional claims are misjoined in this action
because they are completely unrelated to Gwin’s various claims related to his October 2016 arrests
and seek relief against entirely unrelated Defendants.
Federal Rule of Civil Procedure 21 provides that “[m]isjoinder of parties is not a ground
for dismissing an action. On motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a party.” In this case, the Court finds
that severing the claims raised against Defendants McWherter and the Tennessee Board of Parole
in the second amended complaint and opening them as a new case is the appropriate remedy for
the misjoinder.
Gwin seeks to hold Defendants responsible for injuries stemming from his arrest at TCIX
and subsequent arrest for the violation of his parole. The Court analyzes each claim in turn.
False Arrest and Wrongful Imprisonment
The gravamen of Gwin’s initial complaint is that Defendant Jordan violated his
constitutional rights by falsely arresting him on October 6, 2016, at TCIX.

He contends

Defendants Collins-Williams, Shoates-James, Oldham, Dotson, Mobley, Edwards, Evans, and
Knowlton are liable for the October 10, 2016, arrest for the violation of his parole. He contends
that his continued detention is unlawful and not supported by probable cause.
None of Gwin’s allegations state a plausible claim for relief. First, Gwin has no viable
claim against Defendant Collins-Williams. Judges are absolutely immune from civil liability in
the performance of their judicial functions. 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.

8

2014). As a parole officer, Collins-Williams enjoys a similar “quasi-judicial immunity” in the
performance of judicial functions. Huffer v. Bogen, 503 F. App’x 455, 461 (6th Cir. 2012). A
parole officer’s decision whether a parolee has complied with the terms and conditions of his
parole is one such judicial function. Id. Gwin alleges that Collins-Williams violated his rights by
finding that Gwin had violated his parole and then causing a warrant to issue for his arrest. CollinsWilliams was clearly performing a judicial function in her capacity as a parole officer. Therefore,
she is entitled to quasi-judicial immunity.
More fundamentally, Gwin cannot challenge under § 1983 the validity of either arrest or
the determination that his actions at TCIX violated his parole. In Heck v. Humphrey, 512 U.S. 477
(1994), 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.
512 U.S. at 486-87.
Gwin contends that Defendant Jordan arrested him on October 6 without giving him a
“lawful order” to leave the premises, in violation of Tennessee DOC policies. But he has not
alleged that the resulting charges for impersonating a licensed professional and trespassing were
resolved in his favor.
Nor can Gwin challenge the October 10 arrest for violating his parole and current
confinement on that charge. A parolee’s § 1983 claim based on an alleged improper revocation of
his parole “necessarily implies the invalidity of his confinement” and therefore requires the parolee
to first demonstrate “that his parole revocation has been overturned” by a state court or a federal

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court in a habeas corpus petition. Norwood v. Mich. Dept. of Corrections, 67 F. App’x 286, 287
(6th Cir. 2003) (citing Heck, 512 U.S. at 486-87). Unless and until Gwin can show his parole
revocation has been overturned, he may not seek relief under § 1983 for actions related to his
October 10 arrest or confinement for that revocation.
To the extent that Gwin may be asking this Court to intervene in his criminal proceedings
and order the charges dismissed, the Court cannot do so. 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)). 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). Gwin does not
allege the type of extraordinary circumstances that would permit the Court to become involved in
his state-court criminal matters.
Equal Protection
Gwin alleges that Defendant Jordan violated his right to equal protection by selectively
enforcing Tennessee law against him because of his race. The Fourteenth Amendment provides,
in pertinent part, that “[n]o State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const., Amend. XIV, § 1. To state a valid § 1983 claim under the

10

Equal Protection Clause, Gwin must allege that Defendant Jordan, a state actor, intentionally
discriminated against him because of his race. Davenport v. Simmons, 192 F. Supp. 2d 812, 821
(W.D. Tenn. 2001) (citing Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)).
Specific to his claim that he was arrested based only on his race, Gwin “must demonstrate that
someone similarly situated but for the illegitimate classification used by the government actor was
treated differently.” Boone v. Spurgess, 385 F.3d 923, 932 (6th Cir. 2004).
Gwin’s allegations of discrimination on account of his race are conclusory and
unsupported. He alleges nothing that would suggest Defendant Jordan treated him differently
because of his race or selectively enforced the laws against him. These conclusory statements,
without more, do not suffice to state a claim to relief. See Twombly, 550 U.S. at 555 & n.3.
Retaliation
In his first amended complaint, Gwin alleges that Defendant Jordan retaliated against him
for “exercising his constitutional rights in acting as a Notary Public.” (ECF No. 6 at PageID 58.)
Specifically, he states Jordan arrested him to retaliate against Gwin for providing notary and legal
assistance to state prison inmates. (Id.)
The Court reviews Gwin’s retaliation claim under the First Amendment. See Harbin-Bey
v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (“Retaliation on the basis of a prisoner’s exercise of
his First Amendment rights violates the Constitution.”). A claim of retaliation has three elements:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) there is a causal connection between elements
one and two—that is, the adverse action was motivated at least in part by the
plaintiff’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). “Protected conduct, for the
purposes of a First Amendment retaliation claim, encompasses a prisoner’s efforts to access the

11

courts in . . . civil rights claims.”

Bell v. Johnson, 308 F.3d 594, 607 (6th Cir. 2002);

see Thaddeus–X, 175 F.3d at 391. “[T]he plaintiff must be able to prove that the exercise of the
protected right was a substantial or motivating factor in the defendant’s alleged retaliatory
conduct.” Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Gwin fails at the first element. Gwin’s notary services and legal assistance to prisoners
alone does not constitute protected conduct. See Thaddeus-X, 175 F.3d at 395. His assistance to
prisoners would be protected only if his assistance were “necessary to vindicate [the prisoners’]
right of access to the courts.” Id. Gwin does not allege that his assistance was necessary to ensure
the prisoners’ access to the courts, and nothing in any of his pleadings suggests his assistance was
necessary. He therefore fails to state a claim of retaliation.
Taking of Personal Property, Failure to Investigate
Gwin next alleges that Defendant Dotson and other unspecified MPD Detectives burgled
$10,000 worth of personal property from his home after his October 10 arrest. Gwin alleges that
a lieutenant at the Jail told him to contact a counselor about his property. (ECF No. 1 at PageID
21-22.) The counselor told Gwin he could file a grievance but only for incidents that occurred
within the facility. (Id. at PageID 22.) Gwin still filed the grievance, which was denied because
it related to events that occurred outside of the Jail. (Id.) Relatedly, he contends that Defendant
Oldham did not allow him to file a police report regarding the taking of his property and failed to
investigate his allegations. (Id. at PageID 24.)
The Supreme Court has held that “an unauthorized intentional deprivation of property by
a state employee does not constitute a violation of the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is

12

available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Section 1983 therefore does not provide
a remedy for a taking of property, even if the deprivation is intentional. Id. As the Sixth Circuit
has noted, “the State of Tennessee does provide an adequate post-deprivation remedy for takings
of property.” McMillan v. Fielding, 136 F. App’x 818, 820 (6th Cir. 2005) (citing Brooks v.
Dutton, 751 F.2d 197, 199 (6th Cir. 1985)). Gwin’s recourse for the alleged taking therefore lies
in state court.6
Nor does Gwin have a cause of action against Defendant Oldham for failing to investigate
or allow him to file a police report. Individuals have no constitutional right to file a police report.
See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”); Brittain v. Clemons, No.
4:09CV–P123–M, 2011 WL 2471587, at *5 (W.D. Ky. 2011) (a plaintiff cannot force a criminal
prosecution because private citizens, whether or not they are incarcerated, have no right to compel
the state to criminally prosecute another person). Consequently, Gwin has no constitutional right
that would have been violated by Oldham’s refusing to file a police report for him.
Gwin’s allegations that Oldham failed to investigate the detectives’ taking of his property
would establish only supervisory liability. Walker v. Norris, 917 F.2d 1449, 1457 (6th Cir. 1990).
Section 1983 liability cannot be imposed under a theory of respondeat superior. Grinter v. Knight,
532 F.3d 567, 575 (6th Cir. 2008). A plaintiff must provide proof of personal involvement for a
supervisor to incur personal liability. Id. “At a minimum, a § 1983 plaintiff must show that a
6

That remedy is contained in Tennessee Code Annotated § 9-8-307, which permits
claims for money damages for the taking of personal property against the State of Tennessee to
be brought exclusively before the Tennessee Claims Commission. See Tenn. Code Ann. § 9-8307(a)(1)(V). The statute also provides that state officers are absolute immune “from liability
for acts or omissions within the scope of the officer’s or employee’s office or employment,
except for willful, malicious, or criminal acts or omissions or for acts or omissions done for
personal gain.” Id. § 9-8-307(h).
13

supervisory official at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Id. (internal quotation omitted). Gwin
does not allege that Oldham himself took part in the taking of his property or that he acquiesced
in their conduct. He therefore fails to state a claim for supervisory liability for failure to
investigate.
Denial of Access to Parolee Grievance Procedures
Gwin alleges that Defendant Collins-Williams has “refused, denied or ignored” his request
to file a parole grievance against the Tennessee Board of Parole employees that he insists assisted
with his October 10 arrest and burglarized his apartment. (ECF No. 1 at PageID 23.) He asserts
her refusal to provide him access to the grievance procedure for parolees violates his rights under
the First and Fourteenth Amendments. (Id.)
“To establish a due process violation, a complainant must first show that he or she has a
protected property or liberty interest in parole.” Settle v. Tennessee Dep’t of Corr., 487 F. App’x
290, 290-91 (6th Cir. 2012) (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 7 (1979); Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235
(6th Cir. 1991)). The Sixth Circuit has held that Tennessee law does not create a liberty interest
in parole. See Wright v. Trammell, 810 F.2d 589, 590-91 (6th Cir. 1987); T.C.A. §§ 40-28-117(a).
Because Gwin has no substantive liberty interest in parole, he has no due-process right on which
to base his Fourteenth Amendment challenge. See Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th
Cir. 1994) (en banc) (affirming that “procedural statutes and regulations governing parole do not
create federal procedural due process rights”). Nor does he have a right to contest the manner in
which his parole is being carried out. To the extent Gwin wishes to challenge the taking of his
property, Gwin’s remedy lies with the state, as addressed above.

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Conspiracy
Gwin broadly alleges that Defendant Warden Genovese conspired with Defendants Jordan,
Bowman, and his parole officer Defendant Collins-Williams, to violate his right to vote. A plaintiff
may plead a conspiracy claim under § 1983, but he must do so with specificity. Farhat v. Jopke,
370 F.3d 580, 599 (6th Cir. 2004). “[V]ague and conclusory allegations that are unsupported by
material facts are not sufficient to state a § 1983 claim.” Id. (citing Gutierrez v. Lynch, 826 F.2d
1534, 1538 (6th Cir. 1987)). This pleading standard for a claim of civil conspiracy is “relatively
strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008). Gwin’s nonsensical claim fails this
standard. He broadly alleges a conspiracy without any material factual support suggesting any
Defendant conspired with another to deny his right to vote.
For all the foregoing reasons, Gwin’s claims under § 1983 are subject to dismissal for
failure to state a claim.
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., 511 F. App’x 4, 5 (1st Cir. 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. 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 . . . amending the complaint
would be futile, then a sua sponte dismissal may stand.”); 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

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the right of access to the courts.”). In this case, the Court concludes that leave to amend is not
warranted.
In conclusion, the claims in the second amended complaint against former Governor Ned
Ray McWherter and the Tennessee Board of Parole are hereby SEVERED from this case. The
Clerk is DIRECTED to open a new civil case for those claims and to docket in that new case copies
of the second amended complaint, (ECF No. 13), Gwin’s motions to proceed in forma pauperis,
(ECF Nos. 2 & 8), this Court’s Order granting those motions (ECF No. 11), and this order. A
further order concerning those claims will be issued after the new case is opened.
The Court DISMISSES all of Gwin’s remaining § 1983 claims for failure to state a claim
on which relief may be granted and for seeking monetary relief against a Defendant who is immune
from such relief, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b)(1)-(2). Because
all of the federal claims are being dismissed, the Court DECLINES to exercise supplemental
jurisdiction over any claims arising under state law. Those state law claims are DISMISSED
without prejudice to refiling in state court pursuant to 28 U.S.C. § 1367(c)(3).
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by
Gwin 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

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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.
The Court must also address the assessment of the $505 appellate filing fee if Gwin
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 Gwin, this is the third
dismissal of one of his cases as frivolous or for failure to state a claim.7 This “strike” shall take
effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the ground that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.

7

Gwin previously filed Bowers, et al. v. Rainey, et al. No. 97-1227-JDT (W.D. Tenn.
Oct. 28, 1997) (dismissed as frivolous), aff’d, No. 97-6400 (6th Cir. Dec. 21, 1998), and Gwin v.
Traughber, et al., No. 3:95-cv-00434 (M.D. Tenn. May 2, 1995) (dismissed as frivolous).
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Consequently, Gwin is warned that he will be barred from filing any further actions in forma
pauperis while he is a prisoner unless he is in imminent danger of serious physical injury. If any
new civil complaint filed by Gwin is not accompanied by the entire $400 civil filing fee, the
complaint must contain allegations sufficient to show that, at the time of filing the action, he is in
imminent danger of serious physical injury. If the new complaint does not sufficiently allege
imminent danger, it will be dismissed without prejudice; Gwin would then have an opportunity to
file, within 28 days, a motion to re-open the case accompanied by the $400 civil filing fee.
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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