# McGee v. Gay

> District Court, M.D. Tennessee · October 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10437473

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** October 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10437473

## How later opinions describe it (automated extraction)

- 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”
- holding that officer who allegedly “fabricated probable cause” was not entitled to immunity from malicious- prosecution suit
- holding that a complaint does not state a plausible claim if it tenders “naked assertions devoid of further factual enhancement,” or “mere conclusory statements”
- recognizing continuing viability of “malicious-prosecution claims against law-enforcement officers who set a prosecution in motion or who falsify or fabricate evidence”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10437473. Public record. Not legal advice.