McGee v. Gay

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

STEVONTE’ DION McGEE, )

)

Plaintiff, )

)

v. ) Case No. 3:21-cv-00391

) Judge Trauger

JUDGE DEE GAY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Stevonte’ McGee, a pretrial detainee in the custody of the Sumner County Jail in Gallatin,

Tennessee, filed a pro se civil complaint and an application for leave to proceed in forma pauperis

(IFP) on May 14, 2021. (Doc. No. 1.) The court found the IFP application deficient and denied it

without prejudice. (Doc. No. 4.) In addition, the court found that the complaint lacked sufficient

factual allegations to permit judicial review and ordered the plaintiff to file an amended complaint.

(Id.)

The plaintiff thereafter paid the civil filing fee and, on June 28, 2021, filed his amended

complaint. (Doc. No. 7.) He subsequently filed an amended IFP application on August 3, 2021

(Doc. No. 9), though it appears the intent of that application was to demonstrate his financial

inability to hire counsel; in his cover letter, the plaintiff specifies that his family paid the filing fee

and asks the court to appoint counsel to assist him in this case. (Doc. No. 9-1.)

The case is now before the court for an initial review pursuant to the Prison Litigation

Reform Act (PLRA), 28 U.S.C. § 1915A and 42 U.S.C. § 1997e.

I. Initial Review of the Complaint

A. PLRA Screening Standard

Pursuant to 28 U.S.C. § 1915A, the court must conduct an initial review of any prisoner

complaint against a governmental entity, officer, or employee, and must dismiss the complaint or

any portion thereof if it is facially frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief against a defendant who is immune from such relief. This

initial review of whether the complaint states a claim upon which relief may be granted asks

whether it contains “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face,” such that it would survive a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. Applying this standard, the court must view the complaint in the light most

favorable to the plaintiff and, again, must take all well-pleaded factual allegations as true. Tackett

v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin,

551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). Furthermore, pro se pleadings must be

liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

However, pro se litigants are not exempt from the requirements of the Federal Rules of Civil

Procedure, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), nor can the court “create a claim

which [a plaintiff] has not spelled out in his pleading.” Brown v. Matauszak, 415 F. App’x 608,

613 (6th Cir. 2011) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.

1975)).

B. Section 1983 Standard

The plaintiff seeks to vindicate alleged violations of his federal constitutional rights under

42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under

color of state law, deprives an individual of any right, privilege or immunity secured by the

Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012).

Thus, to state a Section 1983 claim, the plaintiff must allege two elements: (1) a deprivation of

rights secured by the Constitution or laws of the United States, and (2) that the deprivation was

caused by a person acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592, 595

(6th Cir. 2014).

C. Allegations and Claims

The plaintiff sues Sumner County Judge Dee Gay, Hendersonville Police Detective James

Bachman, fifteen other unnamed detectives, Sumner County prosecutor Thomas Dean, and his

own defense attorneys, Bruce Henley and Mike Anderson, all in both their individual and official

capacities. (Doc. No. 7 at 2–5.) He alleges that Judge Gay “is in violation of his fiduciary oath”;

that Judge Gay in combination with defense attorney Anderson has limited the plaintiff’s speaking

in court; and that Judge Gay has denied every motion the plaintiff has filed, delayed granting him

a trial, refused to grant him a new defense attorney, held the plaintiff in contempt “because he

didn’t like what [the plaintiff] was saying,” stopped allowing the plaintiff’s relatives in the

courtroom, and has been intemperate in dealing with people who come to his court. (Id. at 7.)

The plaintiff alleges that Dean, Detective Bachman, and fifteen other detectives tampered

with the evidence against him, but that “Bachman is primarily responsible for the tampered

evidence.” (Id. at 5, 6.) The basis of this tampering charge appears to be that, while “no photo was

originally a part of [the case against the plaintiff],” a “draft photo and other circumstances of my

case was attached to my case after being bound over.” (Id. at 6.) He further alleges that he and his

family were stalked and harassed by detectives, and that Bachman has made statements that he

subsequently contradicted. (Id.) He claims that Bruce Henley, his former defense attorney,1 is

guilty of “[m]anipulation of rights” and told him that “if [he] waived [his] rights it would keep

[him] out of jail.” (Id. at 5, 6.)

The plaintiff claims that his current defense attorney, Anderson, is misrepresenting him

and has breached the contract between them. (Id. at 5, 7.) He further alleges that he is being

fraudulently charged “$779 for a public defender” despite his indigence, as that amount was billed

to his inmate trust account as “general session fees” even though has had only been to general

sessions court four times in two years. (Id. at 6.)

The plaintiff alleges that his injuries include “[e]motional distress[ ] and paranoia” from

being harassed and stalked; “[d]efamation of character”; and “[n]o medical treatment.” (Id. at 5.)

As relief, he seeks a federal investigation of “Judge Gay, defendants, and the entire Sumner County

judicial system”; “to be rewarded [as] the courts see fit”; for all defendants to be federally

prosecuted; and for a “speedy court date” to be set. (Id.)

D. Analysis

The allegations of the amended complaint do not support any plausible claim to relief

against the defendants named therein, for reasons explained below.

1 See Doc. No. 5 at 2, Sumner County General Sessions Court Order date June 26, 2019, appointing Bruce

Henley as counsel.

1. Judge Gay and Thomas Dean

The plaintiff has sued a state judge and prosecutor,2 seeking monetary and injunctive relief.

However, neither form of relief is available against these defendants based on the plaintiff’s

allegations.

To begin with, both defendants are immune from the plaintiff’s damages claim under

Section 1983. A suit for damages against a state employee in his official capacity is a suit against

the employing state agency, which is no different than a suit against the state itself. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing, e.g., Kentucky v. Graham, 473

U.S. 159, 165–66 (1985)). The Eleventh Amendment prohibits suits against a state in federal court.

Kentucky, 473 U.S. 159; Pennhurst State Schl. & Hosp. v. Halderman, 465 U.S. 89, 98–100

(1984). Furthermore, “neither a State nor its officials acting in their official capacities are ‘persons’

under § 1983.” Will, 491 U.S. at 71.3 Any official-capacity claims for damages against these

defendants are therefore barred by the Eleventh Amendment and outside the purview of Section

1983.

Moreover, both defendants enjoy absolute immunity from suit on individual-capacity

claims. It is well established that judges are absolutely immune from Section 1983 liability for

their judicial acts. Briscoe v. LaHue, 460 U.S. 325, 334 (1983); Pierson v. Ray, 386 U.S. 547, 554

(1967); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997). Similarly, prosecutors enjoy

2 State law establishes the eighteenth judicial district (serving Sumner County) and provides for its trial

court judges, district attorney general, and assistant district attorneys general. Tenn. Code Ann. § 16-2-

506(18).

3 “Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person

under § 1983 because official-capacity actions for prospective relief are not treated as actions against the

State.” Will, 491 U.S. 71 n.10 (citation and internal quotation marks omitted).

absolute immunity from suit under Section 1983 for conduct related to the initiation and

presentation of the state’s case. Imbler v. Pachtman, 424 U.S. 409, 420, 431 (1976); Howell v.

Sanders, 668 F.3d 344, 349 (6th Cir. 2012). The plaintiff does not allege that either defendant

acted outside the scope of their official duties in proceeding against him. At best, he alleges that

they performed their judicial and prosecutorial functions in a biased or wrongful way. However,

the immunity afforded to judges and prosecutors is not defeated by allegations that such officials

acted maliciously or corruptly, as it is in the public interest that these officials be able to perform

their functions without fear of consequences, even when their motives in performing such

functions are questioned. Imbler, 424 U.S. at 427–28; Pierson, 386 U.S. at 554. Accordingly, the

claims against the defendants in their individual capacities is subject to dismissal.

To the extent that the plaintiff’s request for a “speedy court date” amounts to a claim against

these defendants in their official capacity for injunctive relief, that claim must also fail. Although

official-capacity claims for injunctive relief against state officials are not precluded by the

Eleventh Amendment, Section 1983 itself states that “injunctive relief shall not be granted,” except

in circumstances not present here, against a judicial officer such as Judge Gay “for an act or

omission taken in such officer’s judicial capacity.” 42 U.S.C. § 1983. Moreover, to the extent that

the plaintiff requests an order directing Dean to proceed to trial against the plaintiff, it is clear that

a federal court should not interfere with pending state court criminal proceedings but must abstain

from enjoining such proceedings absent the threat of “great and immediate” irreparable injury.

Younger v. Harris, 401 U.S. 37, 46 (1971). Abstention in favor of state court proceedings is proper

where there exists: (1) an ongoing state judicial proceeding; (2) an important state interest; and (3)

an adequate opportunity in the state judicial proceedings to raise constitutional challenges.

Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Fieger

v. Thomas, 74 F.3d 740, 744 (6th Cir. 1996). All three factors are present in this case, as state

criminal proceedings against the plaintiff are still pending; such proceedings undoubtedly

implicate important state interests; and the state courts would presumably hear any claims invoking

his rights to a speedy trial. See Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir. 2000).

Although an exception to this rule of abstention is made where “the state proceeding is

motivated by a desire to harass or is conducted in bad faith,” Huffman v. Pursue, Ltd., 420 U.S.

592, 611 (1975), this exception is narrow, and will not be triggered by mere allegations of bad

faith or harassment. Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). “Only in cases of

proven harassment or prosecutions undertaken by state officials in bad faith without hope of

obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable

injury can be shown is federal injunctive relief against pending state prosecutions appropriate.”

Perez v. Ledesma, 401 U.S. 82, 85 (1971). In the case at bar, there is no allegation that the plaintiff

will be greatly, immediately, and irreparably injured if ongoing state proceedings are not enjoined.

He has not alleged that his is the extraordinary case where the defendants have proven to be

proceeding against him despite having no hope of obtaining a valid conviction. The plaintiff

therefore fails at this time to state an actionable claim for injunctive relief.

Finally, even if the amended complaint could be liberally construed as a petition for habeas

relief under 28 U.S.C. § 2241 to vindicate the plaintiff’s speedy trial rights, the court would have

to abstain from considering his request for relief because of his failure to show that all available

state procedures to redress the claimed speedy trial violation have been exhausted, and that the

resulting prejudice to his defense could not be resolved at trial. See Abernathy v. U.S. Marshal

Serv., No. 2:08-CV-14663, 2008 WL 4858442, at *1 (E.D. Mich. Nov. 10, 2008) (“[A]lthough 28

U.S.C. § 2241 establishes federal court jurisdiction to consider pretrial habeas petitions, courts

abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved

either by trial on the merits or by other available state procedures.”) (citing Atkins v. People of the

State of Michigan, 644 F.2d 543, 546 (6th Cir. 1981)). It is only in such extraordinary

circumstances––where there is a threat of irreparable injury that is both “great and immediate,”

Younger v. Harris, 401 U.S. 37, 45–46 (1971)––that federal intrusion into ongoing state criminal

proceedings may be warranted. Atkins, 644 F.2d at 546. No such extraordinary circumstances are

apparent from the complaint in this case.

2. Defense Attorneys Bruce Henley and Mike Anderson

The plaintiff cannot proceed against his defense attorneys under Section 1983. Criminal

defense attorneys, whether private practitioners or public defenders, are not proper defendants to

an action under Section 1983 because they do not act under color of state law when performing

“traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson,

454 U.S. 312, 325 (1981). Accordingly, this action is not the proper vehicle for the plaintiff’s

claims related to Henley’s alleged “manipulation of rights” and Anderson’s poor performance and

potential breach of the contract of representation.

3. Detective Bachman; Fifteen Unnamed Detectives

While the plaintiff’s allegations against Detective Bachman are less than clear, he appears

to claim that Bachman tampered with the evidence against him by including a “draft photo” in

evidence after the plaintiff waived preliminary examination and the case was bound over to the

grand jury. (See Doc. No. 7 at 6; Doc. No. 5.) The plaintiff may eventually (if criminal proceedings

terminate in his favor) be able to assert a viable Section 1983 claim against Bachman based on

tampering with or falsifying evidence prior to submission of the case to the grand jury, under a

malicious-prosecution theory. See King v. Harwood, 852 F.3d 568, 590 (6th Cir. 2017)

(recognizing continuing viability of “malicious-prosecution claims against law-enforcement

officers who set a prosecution in motion or who falsify or fabricate evidence”) (citing, e.g., Lisker

v. City of Los Angeles, 780 F.3d 1237, 1242 (9th Cir. 2015) (finding that immunity for officer who

testifies as a witness does not extend to “non-testimonial acts, such as tampering with documentary

or physical evidence”)); Spurlock v. Satterfield, 167 F.3d 995, 1004 (6th Cir. 1999) (holding that

officer who allegedly “fabricated probable cause” was not entitled to immunity from malicious-

prosecution suit). But such a claim cannot be pursued while the criminal prosecution is ongoing.

See King, 852 F.3d at 578–79 (finding that, unlike claims for false arrest or false imprisonment, “a

malicious-prosecution claim is not available before the favorable termination of criminal

proceedings, nor does the limitations period for such a claim begin until the favorable termination

of criminal proceedings”).

Moreover, the amended complaint against the unnamed detectives is completely devoid of

factual content that would lend support to the bare allegation that they stalked and harassed the

plaintiff and his family members, or that they engaged in evidence-tampering. The claims against

these defendants are therefore subject to dismissal for failure to state a plausible claim to relief.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that a complaint does not state a plausible

claim if it tenders “naked assertions devoid of further factual enhancement,” or “mere conclusory

statements”). For the same reason, the vague, extraneous references in the amended complaint to

“no medical treatment” (Doc. No. 7 at 5) and to officers “standing over [the plaintiff] while [he]

was sleeping” (id. at 10) do not suffice to raise any viable claim concerning the conditions of his

confinement.

Finally, the plaintiff is not entitled under any theory to a federal investigation of the Sumner

County court system or the federal prosecution of any defendant. See Peek v. Mitchell, 419 F.2d

575, 577 (6th Cir. 1970) (holding that institution of federal investigation and prosecution is a

matter within the discretion of the U.S. Attorney General and U.S. Attorney, and that awarding

such relief in a civil rights lawsuit “is beyond the power of th[e] Court”). Nor would it be proper

for this court to entertain the matter of costs improperly taxed to the plaintiff by the Sumner County

court for his appointed attorney.

In sum, the complaint fails to state a viable claim to relief under Section 1983 and must

therefore be dismissed. Because no federal claims remain, the court in its discretion declines to

exercise supplemental jurisdiction over any state law claims for defamation, breach of contract, or

fraud related to court fees, and dismisses those claims without prejudice. See Musson Theatrical,

Inc. vy. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996).

I. Conclusion

In light of the foregoing, this action is hereby DISMISSED pursuant to 28 U.S.C. § 1915A,

for failure to state a claim upon which relief can be granted. The plaintiffs state law claims are

dismissed without prejudice to his right to pursue them in state court.

In light of the dismissal of this action, the plaintiff's amended IFP application/motion to

appoint counsel (Doc. No. 9) is DENIED as moot.

This is the final order in this action. The Clerk MUST enter judgment. Fed. R. Civ. P.

58(b)(1).

It is so ORDERED.

United States District Jud#e

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