Braden v. Moore et al

Filing 3

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. §§ 1915(a)(1)-(2) OR PAY THE ENTIRE $400 CIVIL FILING FEE, DISMISSING COMPLAINT AND CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH. Signed by Judge James D. Todd on 3/23/17. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DERRICK RANARD BRADEN,
Plaintiff,
VS.
ROBERT MOORE, ET AL.,
Defendants.

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No. 17-2206-JDT-cgc

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. §§ 1915(a)(1)-(2)
OR PAY THE ENTIRE $400 CIVIL FILING FEE, DISMISSING COMPLAINT
AND CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

On March 20, 2017, Plaintiff Derrick Ranard Braden, an inmate at the Northeast
Correctional Complex in Mountain City, Tennessee, filed a civil complaint pursuant to 42
U.S.C. § 1983. (ECF No. 1.) Plaintiff did not pay the $400 civil filing fee or submit an
application to proceed in forma pauperis and a certified copy of his inmate trust account for
the last six months, as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C.
§§ 1915(a)-(b).
Under the PLRA, 28 U.S.C. §§ 1915(a)-(b), a prisoner bringing a civil action must pay
the filing fee required by 28 U.S.C. § 1914(a). Although the obligation to pay the fee accrues
at the moment the case is filed, see McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir.
1997), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th
Cir. 2013), the PLRA provides the prisoner the opportunity to make a “down payment” of

a partial filing fee and pay the remainder in installments. Id. at 604. However, in order to
take advantage of the installment procedures, the prisoner must properly complete and submit
to the district court, along with the complaint, an in forma pauperis affidavit and a certified
copy of his trust account statement for the six months immediately preceding the filing of the
complaint. See 28 U.S.C. § 1915(a)(2).
As stated, Plaintiff has failed to pay the $400 filing fee or submit an in forma pauperis
affidavit and trust account statement in accordance with the PLRA. Therefore, Plaintiff is
ORDERED to submit, within 30 days after the date of this order, either the entire $400 filing
fee or a properly completed and executed application to proceed in forma pauperis and a
certified copy of his inmate trust account statement for the last six months.
If Plaintiff timely submits the necessary financial information and the Court finds he
is indigent, the Court will grant leave to proceed in forma pauperis and assess the filing fee
in accordance with the installment procedures of 28 U.S.C. § 1915(b). However, if Plaintiff
fails to comply with this order in a timely manner, the Court will deny leave to proceed in
forma pauperis and assess the entire filing fee from his inmate trust account without regard
to the installment procedures.
“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,
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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))); 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.”).
Plaintiff’s complaint does not comply with the Federal Rules of Civil Procedure. A
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief” and “a demand for the relief sought, which may include relief in the
alternative or different types of relief.” Fed. R. Civ. P. 8(a)(2)-(3). In this case, it cannot be
discerned with any certainty who Plaintiff is suing and which specific claims are asserted
against which defendants. Although Plaintiff has used the official § 1983 form complaint,
he has included two different versions of page one of the form (ECF No. 1 at 1-2), six
different versions of page two (id. at 3-8), and three different versions of page three (id. at
9-11). He has sued various individuals from the Shelby County Criminal Justice Complex;
the Memphis Police Department; the Shelby County Sheriff’s Office; the Bledsoe County
Correctional Complex, in Wartburg, Tennessee; and the Whiteville Correctional Facility in
Whiteville, Tennessee. (Id. at 3-8.)

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The overall gist of Plaintiff’s allegations is that the Defendants have, since 2004,
“assisted and protected each other” in the commission of various criminal and fraudulent
enterprises, including prostitution, kidnapping, various kinds of fraud, extortion, drug and
food poisoning, home invasions and murder. (Id.) These actions have allegedly resulted in
the cover-up of the deaths of various individuals including “Memphis mob boss ‘King Fiskh
[sic],’” “Galiliee Cemetary [sic] owner,” Lorenzo Wright of the Memphis Grizzlies, bank
embezzler Jerry Harris, “drug lord” Jack Chaffen, and “Kingpin drug dealer Hollywood Dre
‘Tha [sic] Teflon Don.’” (Id.) These claims are “clearly baseless,” “fanciful,” “fantastic,”
or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). “[A] finding of factual
frivolousness is appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially noticeable facts available to contradict
them.” Id. at 33. Therefore the Court also finds that Plaintiff’s claims in this case are
factually frivolous, see Huey v. Raymond, 53 F. App’x 329, 330-31 (6th Cir. 2002), lacking
an arguable basis in law and fact.
The Court therefore DISMISSES the complaint in its entirety pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted and pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i) and Denton v. Hernandez as frivolous and lacking an
arguable basis in fact and law.
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
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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.
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/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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