Young et al v. Weirich et al

Filing 20

ORDER GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS, ASSESSING PLAINTIFF LEES PRO RATA FILING FEE UNDER THE PLRA, DENYING MOTION FOR SUMMARY JUDGMENT, DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 11/26/18. (mbm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DELISHA YOUNG, ET AL.,
Plaintiffs,
VS.
AMY WEIRICH, ET AL.,
Defendants.

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No. 18-2157-JDT-tmp

ORDER GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS,
ASSESSING PLAINTIFF LEE’S PRO RATA FILING FEE UNDER THE PLRA,
DENYING MOTION FOR SUMMARY JUDGMENT, DISMISSING COMPLAINT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On March 7, 2018, Plaintiffs Delisha Young, Tatyana McGee (T. McGee), Emma
McGee (E. McGee) and Wendolyn Lee, booking number 18103194, filed a pro se civil
complaint. (ECF No. 1.) Plaintiff Lee is incarcerated at the Shelby County Criminal
Justice Center (Jail) in Memphis, Tennessee, and it appears he also was incarcerated
when the complaint was filed. Each Plaintiff also filed a motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The Clerk shall record the Defendants as Amy Weirich,
District Attorney General, and Chris Craft, Criminal Court Judge, both in the Thirtieth
Judicial District of Tennessee.
Federal law provides that the “clerk of each district court shall require parties
instituting any civil action, suit or proceeding in such court, whether by original process,

removal or otherwise,” to pay a filing fee. 28 U.S.C. §§ 1914(a)-(b). 1 To ensure access
to the courts, however, 28 U.S.C. § 1915(a) permits an indigent plaintiff to avoid
payment of filing fees by filing an in forma pauperis affidavit. In this case, Plaintiffs
Young, T. McGee and E. McGee have submitted properly completed and executed in
forma pauperis affidavits.

The information set forth in those affidavits satisfies

Plaintiffs’ burden of demonstrating that they are unable to pay the civil filing fee.
Accordingly, the motions to proceed in forma pauperis filed by the three non-prisoner
Plaintiffs are GRANTED.
As stated, it appears that Plaintiff Lee was incarcerated when this case was filed.
Under the Prison Litigation Reform Act (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. Therefore, the Court GRANTS Plaintiff Lee’s
motion to proceed in forma pauperis, and he is assessed his $87.50 share of the $350
filing fee in accordance with the terms of the PLRA.

1

The civil filing fee is $350. See 28 U.S.C. § 1914(a). The schedule of fees set out
following the statute also requires the Clerk to collect an administrative fee of $50 for filing any
civil case. However, the additional $50 fee does not apply if a plaintiff is granted leave to
proceed in forma pauperis.
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Accordingly, pursuant to 28 U.S.C. § 1915(b)(1), Plaintiff Lee is ORDERED to
cooperate fully with prison officials in carrying out this order. It is further ORDERED
that the trust account officer at Plaintiff Lee’s prison shall calculate a partial initial filing
fee equal to twenty percent (20%) of the greater of the average balance in or deposits to
Plaintiff Lee’s trust account for the six months immediately preceding the completion of
the affidavit. When the account contains any funds, the trust account officer shall collect
them and pay them directly to the Clerk of the Court. If the funds in Plaintiff Lee’s
account are insufficient to pay the full amount of the initial partial filing fee, the trust
account officer is instructed to withdraw all of the funds in the Plaintiff Lee’s account
and forward them to the Clerk of the Court.
On each occasion that funds are subsequently credited to Plaintiff Lee’s account
the trust account officer shall immediately withdraw those funds and forward them to the
Clerk of the Court, until the initial partial filing fee is paid in full.
It is further ORDERED that after the initial partial filing fee is fully paid, the trust
account officer shall withdraw from Plaintiff Lee’s account and pay to the Clerk of this
Court monthly payments equal to twenty percent (20%) of all deposits credited to
Plaintiff’s account during the preceding month, but only when the amount in the account
exceeds $10, until his $87.50 share of the filing fee is paid.
Each time the trust account officer makes a payment to the Court as required by
this order, he shall print a copy of the prisoner’s account statement showing all activity in
the account since the last payment under this order and submit it to the Clerk along with
the payment. All payments and account statements should be sent to:
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Clerk, United States District Court, Western District of Tennessee,
167 North Main St., Rm. 242, Memphis, TN 38103
and shall clearly identify Plaintiff Lee’s name and the case number as included on the
first page of this order.
If Plaintiff Lee is transferred to a different prison or released, he is ORDERED to
notify the Court immediately, in writing, of his change of address. If still confined, he
shall provide the officials at the new facility with a copy of this order.
The Clerk shall mail a copy of this order to the official in charge of trust fund
accounts at Plaintiff Lee’s prison. The Clerk is further directed to forward a copy of this
order to the Director of the Jail to ensure that the custodian of Plaintiff’s inmate trust
account complies with that portion of the PLRA pertaining to the payment of filing fees.
The allegations of the complaint are somewhat convoluted, but Plaintiffs allege
that Plaintiff Lee was arrested on rape charges after his step-daughter, Plaintiff T.
McGee, accused him of raping her when she was fourteen years old. (ECF No. 1-1 at
PageID 4.) The rape charges remain pending. Several months after Lee’s arrest, T.
McGee recanted her accusation of rape and stated instead that she artificially inseminated
herself with Lee’s sperm. (Id. at PageID 4-5; see also ECF No. 1-2 at PageID 6.)
Plaintiff E. McGee, who is T. McGee’s mother, asserts that she gave T. McGee a condom
with Lee’s sperm in it and told her to throw it away, but T. McGee instead took the sperm
and inseminated herself with a syringe. (ECF No. 1-3 at PageID 8.) Plaintiff Young,
who is T. McGee’s sister, maintains that she helped T. McGee inseminate herself. (ECF

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No. 1-4 at PageID 9.) As a result, T. McGee became pregnant and gave birth to a child.
(Id.; see also ECF No. 1-1 at PageID 5.)
Plaintiff T. McGee now alleges that Defendant Weirich, the Shelby County
District Attorney, threatened to put her in jail if she did not say she was raped by Lee.
(ECF No. 1-1 at PageID 5.) When T. McGee recanted and submitted her statement and
corroborating statements by her mother and sister, Weirich allegedly became angry and
refused to drop the rape charges against Lee. (Id.)
Plaintiff Lee has submitted various amendments to the complaint, the first of
which was filed on September 7, 2018. (ECF No. 12.) He alleges that T. McGee accused
him of rape after she became angry with her family. (Id. at PageID 48.) Plaintiff T.
McGee and Weirich allegedly were in a gay relationship, and Weirich convinced T.
McGee to come to Memphis to press charges against Lee because he knew of that
relationship and had made derogatory comments about Weirich on Facebook. (Id. at
PageID 48-49.) However, Lee alleges that even when T. McGee first made her false
accusation, she stated the events occurred in West Memphis, Arkansas, not in Memphis,
Tennessee; therefore, he contends Tennessee has no jurisdiction in the criminal
proceeding. (Id. at PageID 49-50.) Weirich also allegedly told T. McGee that she could
get Defendant Craft, a Criminal Court Judge, to help her convict Lee, so T. McGee
should keep quiet about it. (Id. at PageID 50.) Lee alleges that Weirich was arrested by
the FBI for false imprisonment, tampering with evidence, conspiracy, and sexual battery
against Plaintiff Young. (Id.) He further alleges that it is a conflict of interest for

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Weirich to prosecute him when it was Young who had her arrested.

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(Id.) Lee also

alleges that Defendant Craft issued an order for him to undergo a mental evaluation. (Id.)
Plaintiff Lee’s second amendment was filed September 25, 2018. (ECF No. 13.)
Lee repeats his allegation that Weirich was arrested, stating that she appeared in federal
court for issuing false indictments. 3 (Id. at PageID 62.) A pro se motion which Lee filed
in his criminal case is attached, in which he alleges that Weirich forged the grand jury
foreperson’s name on the indictment; therefore, he contended he was never properly
indicted and the criminal court was without jurisdiction. (ECF No. 13-2 at PageID 6465.)
On October 11, 2018, Lee filed a motion for summary judgment. (ECF No. 14.)
This case is being dismissed; therefore that motion is DENIED.
Lee sent a letter to the Clerk of this Court, which was docketed on November 1,
2018, in which he again repeats some of his allegations and also claims that Weirich was
found guilty of withholding evidence but did not go to jail. (ECF No. 17.)
The Court is required to screen prisoner complaints and to dismiss any complaint,
or any portion thereof, if the complaintC

2

The allegation that Weirich was arrested by the FBI or any other law enforcement
agency appears to be demonstrably false. There are no charges pending against Weirich in any
federal or Tennessee state court, and such a high-profile arrest would have been widely reported
by the media.
3

Lee also appears to be attempting to add several defendants, including the Shelby
County Sheriff, the Shelby County Board of Supervisors, the Shelby County Mayor, and an
Assistant District Attorney. (Id.) However, none of the individuals are identified, and there are
no factual allegations made against them. Therefore, the Court DENIES leave to amend to add
those defendants.
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(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 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, 55557 (2007), are applied. 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). “[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.” Hill, 630 F.3d at 470
(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). “Any complaint that is legally

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frivolous would ipso facto fail to state a claim upon which relief can be granted.” Id.
(citing Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a
claim, where a judge must accept all factual allegations as true, a judge
does not have to accept Afantastic or delusional@ factual allegations as true
in prisoner complaints that are reviewed for frivolousness.
Id. at 471 (citations and internal quotation marks omitted).
“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))); 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.”);
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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.”).
The complaint is filed on the form used for commencing actions 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, 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 § 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).
Any claims that Plaintiffs Young, T. McGee and E. McGee are attempting to
assert on their own behalf fail to state a claim under § 1983, as the complaint does not
explain how Plaintiff Lee’s arrest and prosecution violates their own personal
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constitutional rights. The fact that Defendant Weirich did not drop the charges against
Lee even after T. McGee’s recantation does not amount to a constitutional violation
against McGee herself. In addition, general allegations that Weirich is harassing their
family do not state a constitutional claim.
Plaintiff Lee is asserting a claim of malicious prosecution. In order to succeed on
such a claim, he must show the following:
First, . . . that a criminal prosecution was initiated against the plaintiff and
that the defendant made, influenced, or participated in the decision to
prosecute. Second, . . . that there was a lack of probable cause for the
criminal prosecution. Third, . . . that, as a consequence of the legal
proceeding, the plaintiff suffered a deprivation of liberty . . . . Fourth, the
criminal proceeding must have been resolved in the plaintiff’s favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (citations, internal quotation
marks and brackets omitted). In this case, Lee has failed to state a claim for malicious
prosecution because the criminal proceeding is ongoing; therefore, he cannot show that
the prosecution was resolved in his favor.
Furthermore, both Defendant Weirich and Defendant Craft are entitled to absolute
immunity for the actions taken in the course of their duties as prosecutor and judge.
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).
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Likewise, 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.
2014); Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012). The “touchstone” for
applicability of absolute judicial immunity is “performance of the function of resolving
disputes between parties, or of authoritatively adjudicating private rights.” Antoine v.
Byers & Anderson, Inc., 508 U.S. 429, 435-36 (1993). In this case, Lee specifically
alleges only that Defendant Craft ordered him to undergo a mental evaluation, which is
within the scope of his judicial function. Therefore, any claim against Defendant Craft is
barred by judicial immunity.
To the extent that Lee may be asking this Court to intervene in his criminal
proceeding and order the charges dismissed, the Court cannot do so. Under the AntiInjunction 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
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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. In this case, Lee does not allege the type of extraordinary circumstances that
would permit the Court to become involved in his state-court criminal matter.
For all of the foregoing reasons, the complaint is subject to dismissal in its entirety
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. 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.

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In conclusion, the Court DISMISSES the 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.
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal
by any 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 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) and Federal Rule of Appellate Procedure
24(a), that an appeal in this matter by any Plaintiff would not be taken in good faith.
Accordingly, leave to appeal in forma pauperis is DENIED.
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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