Morrow v. Holland

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

JAMES E. MORROW, )

)

Plaintiff, )

)

)

VS. ) No. 18-2412-JDT-cgc

)

)

JOSIE HOLLAND, ET AL., )

)

Defendants. )

ORDER TO MODIFY THE DOCKET, DISMISSING COMPLAINT,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On June 14, 2018, Plaintiff James E. Morrow, who is incarcerated at the Northwest

Correctional Complex in Tiptonville, Tennessee, filed a pro se complaint pursuant to

42 U.S.C. § 1983 and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) After Morrow

filed the required financial documentation under the Prison Litigation Reform Act (PLRA), 28

U.S.C. §§ 1915(a)-(b), (ECF No. 6), the Court issued an order granting leave to proceed in forma

pauperis and assessing the civil filing fee. (ECF No. 7.) The Clerk shall record the Defendants as

Josie Holland and Paul Guibao, attorneys; Chris B. Craft, Otis Higgs, John P. Colton, and Carolyn

Blackett, Criminal Court Judges for the Thirtieth Judicial District in Shelby County;1 Richard

1 Morrow acknowledges that Judge Higgs is deceased. (ECF No. 1 at PageID 3.) He

died on February 15, 2013. See https://www.tncourts.gov/news/2013/02/18/judiciary-mourns-

loss-criminal-court-judge-w-otis-higgs.

DeSaussure2 and William Key, former Shelby County Criminal Court Clerks; and John Billings at

JB Investigations.

Morrow alleges that in April 1998, he was found guilty after a bench trial of two counts of

first-degree murder and sentenced to two concurrent life sentences in the Tennessee Department

of Correction (TDOC). (ECF No. 1 at PageID 4.) Morrow moved for a new trial, which was

denied and affirmed on appeal. (Id.) In April 2001, Morrow filed a petition for post-conviction

relief. (Id.) He alleges the petition has since languished in the Shelby County Criminal Court

before four different judges (all of whom he names as Defendants in his complaint) without a

scheduling order, preliminary order, or hearing ever being set or taking place. (Id.) He describes

the treatment of his petition as a “Judicial Roundabout, and Inordinate Delay” that have denied

him “an adequate opportunity to raise his State and Federal claims in the State court.” (Id. at

PageID 7.)

Morrow alleges that Judges Colton, Higgs, Blackett, and Craft illegally authorized

investigative funds, failed to follow the Tennessee Post Conviction Act (TPCA),3 and prejudiced

his post-conviction petition. (Id. at PageID 11-18.) He asserts their actions have violated his rights

under the Sixth and Fourteenth Amendments of the U.S. Constitution, the Tennessee Constitution,

and the TPCA. (Id. at PageID 14, 15, 17, 18.) Morrow further alleges that attorney Holland and

Criminal Court Clerks Key and DeSaussure “are complicit” in the alleged violations of his due

process rights. (Id. at PageID 8.) Specifically, Morrow contends that Holland confiscated his legal

2 Morrow spells this Defendant’s name “Desaurraure” in the caption of the complaint but

using the spelling DeSaussure elsewhere in the complaint. (ECF No. 1 at PageID 6, 29.) The

Court has reviewed relevant Tennessee sources and determined that DeSaussure is the correct

spelling. The Clerk is DIRECTED to modify the docket to reflect the correct spelling for this

Defendant.

3 See Tenn. Sup. Ct. Rule 28; Tenn. Code Ann. §§ 40-30-101 to 40-30-122.

documents, including a check meant to pay for the travel of an out-of-state witness, and refused to

contact the witness to have her appear in state court. (Id. at PageID 9-10.)

Morrow provides additional details about the alleged handling of his post-conviction matter

by Judge Craft, who currently has jurisdiction over the matter. (Id. at PageID 19-24.) He alleges

that Judge Craft has never issued a required preliminary order, violated his rights to file a timely

appeal and to be heard as a pro se Defendant, misstated the law regarding effective assistance of

post-conviction counsel, issued a false order, and ordered the Criminal Court Clerks to violate

Tennessee law. (Id.)

Morrow seeks this Court’s intervention in his state post-conviction matter. (Id. at

PageID 7.) Specifically, he seeks an order from the Court requiring the Defendants to take or

cease certain actions, including to “[c]ease and desist obstructing the plaintiff’s right to access the

office of the criminal court clerk,” allow Morrow access to the files from his criminal case, order

the state court to issue a written preliminary order, order attorney Holland to return Morrow’s legal

documents and refer Holland for disciplinary action, provide Morrow with expert services, pay all

of Morrow’s legal expenses, and order “the trial court and the State to enter into negotiations with

the plaintiff for the purpose of reaching an amicable resolution to this case.” (Id. at PageID 28.)

He also wants a “Federal monitor in the courtroom to oversee the proceedings in this case.” (Id.)4

The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or

4 Morrow moved to amend his complaint to include as an additional request for relief that

attorney Holland be removed as standby counsel in his post-conviction matter. (ECF No. 10.)

Because his complaint was still undergoing screening when he filed the motion, the motion to

amend is GRANTED.

(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)

(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))).

Morrow’s complaint is filed 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).

Morrow seeks this Court’s intervention in his ongoing state post-conviction proceedings.

Federal courts, however, generally should abstain from deciding a matter that affects pending state-

court criminal proceedings. See Younger v. Harris, 401 U.S. 37, 43-45 (1971). This rule applies

equally to state post-conviction proceedings. See Baze v. Parker, 632 F.3d 338, 341 (6th Cir.

2011) (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003); Younger, 401

U.S. at 43-44; and Coleman v. Thompson, 501 U.S. 722, 726 (1991)). Abstention under Younger

is appropriate when “there are state proceedings that are (1) currently pending; (2) involve an

important state interest; and (3) will provide the federal plaintiff with an adequate opportunity to

raise his or her constitutional claims.” Habich v. City of Dearborn, 331 F.3d 524, 530 (6th Cir.

2003) (citing Hayse v. Wethington, 110 F.3d 18, 20 (6th Cir. 1997)).

The three factors that support Younger abstention are present in this case. First, Morrow

alleges that his state post-conviction matter is pending in state court. See Fed. Express Corp. v.

Tenn. Pub. Serv. Comm’n, 925 F.2d 962 (6th Cir. 1991) (“[I]f a state proceeding is pending at the

time the action is filed in federal court, the first criteria for Younger abstention is satisfied.”).

Second, a state post-conviction proceeding involves the important state interests of the correctness

and finality of its own criminal judgments. See Berryman v. Garrett, No. CIV.A. 02-75095-DT,

2003 WL 345364, at *3 (E.D. Mich. Jan. 28, 2003) (citing Hansel v. Town Court for Town of

Springfield, N.Y., 56 F.3d 391, 393 (2d Cir. 1995)) (“[I]t is axiomatic that a state’s interest in the

administration of criminal justice within its borders is an important one.”). Last, a state

post-conviction proceeding in Tennessee allows Morrow an opportunity to raise his constitutional

claims. See Tenn. Code Ann. § 40-30-103 (“Relief under this part shall be granted when the

conviction or sentence is void or voidable because of the abridgment of any right guaranteed by .

. . the Constitution of the United States.”).

Regarding the third factor, Morrow asserts that the Defendants are violating his right to

due process by delaying his post-conviction proceedings and denying his ability to raise his

constitutional claims. However, he does not contend that the proceedings themselves would be an

inadequate avenue to raise his constitutional claims. See Am. Family Prepaid Legal Corp. v.

Columbus Bar Ass’n, 498 F.3d 328, 334 (6th Cir. 2007) (quoting Squire v. Coughlan, 469 F.3d

551, 556 (6th Cir. 2006)) (“Abstention is appropriate ‘unless state law clearly bars the

interposition of the constitutional claims.’”) (emphasis in original); cf. Thigpen v. Kane, No. 3:17-

CV-00919, 2017 WL 3868282, at *3 (M.D. Tenn. Sept. 5, 2017) (“[W]hile the complaint

expresses the plaintiff’s dissatisfaction with the state court and his suspicions that state actors are

violating his due process rights, the complaint does not allege that the state court has refused or

would refuse to consider the plaintiff’s constitutional claims; thus, presumably the state court

proceedings provide an adequate forum in which the plaintiff can raise any constitutional

challenges.”). Without evidence to the contrary, the Court “must presume that the state courts are

able to protect the interests of the federal plaintiff.” Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir.

1995) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)).

Although all three Younger requirements are met, “extraordinary circumstances,”

including “bad faith, harassment, or flagrant unconstitutionality,” may render abstention

inappropriate. Am. Family, 498 F.3d at 335; see Middlesex Cnty. Ethics Comm. v. Garden State

Bar Ass’n, 457 U.S. 423, 435 (1982). “These exceptions to Younger have been narrowly

construed.” Zalman v. Armstrong, 802 F.2d 199, 205 (6th Cir. 1986). “[I]t is the plaintiff[‘]s

‘heavy burden’ to overcome the bar of Younger abstention by setting forth more than mere

allegations of bad faith or harassment.” Amanatullah v. Colorado Bd. of Med. Examiners, 187

F.3d 1160, 1165 (10th Cir. 1999) (quoting Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997)).

Morrow contends that “extraordinary circumstances” are present in his case, justifying this

Court’s intervention. (ECF No. 1 at PageID 7.) He points to the alleged “fraudulent

misappropriation of investigative funds” in his post-conviction matter, which he asserts violates

Tennessee Supreme Court Rule 13, § 5(a); the state judges’ denial of Morrow’s attempt to

subpoena out-of-state witnesses; the Defendants’ alleged “harassment, bad faith, and flagrant

disregard for State and Federal law”; and the 17-year delay in his matter “without a hearing or

ruling.” (Id.) Morrow asserts that abstention under Younger should not apply because he “has

been denied an adequate opportunity to raise his State and Federal claims in the State court.” (Id.)

Morrow’s allegation regarding investigative funds in his state post-conviction matter raises

an interesting point. Current Tennessee Supreme Court Rule 13, § 5(a)(2) provides: “In non-

capital post-conviction proceedings, funding for investigative, expert, or other similar services

shall not be authorized or approved. See Davis v. State, 912 S.W.2d 689 (Tenn. 1995).” Morrow

has attached to his complaint two ex parte orders signed by Judge Colton authorizing defense

counsel to obtain investigative services from J.B. Investigations. The initial order was signed by

Judge Colton on October 18, 2002, and authorized the expenditure of $3,000. (ECF No. 1-1 at

PageID 32-33.) The second order was signed by Judge Colton on March 12, 2003, and authorized

an additional $1,000. (Id. at PageID 31.) Both orders purportedly were filed in Morrow’s state

post-conviction matter, No. P-24972, which is neither a capital proceeding nor a direct appeal.5

The history set out following Supreme Court Rule 13 indicates the various sections have

been amended numerous times. The Explanatory Comment to Rule 13, § 5 states in part: “Section

5(a)(1) contains the language that previously appeared as Section 5(a). Section 5(a)(2)

unequivocally provides that funding for investigative, expert, or other similar services is not

available in non-capital post-conviction proceedings.” Given that explanation, it is possible that

Judge Colton’s orders authorizing investigative funds were entered before Rule 13, § 5 was

amended to expressly prohibit funds for investigative services in non-capital post-conviction

proceedings.

Even if Morrow is correct that the version of Tennessee Supreme Court Rule 13, § 5(a) in

effect at the time was not followed, and the Court expresses no opinion on whether he is, he still

does meet an exception to abstention under Younger. Federal intervention is appropriate only if

there is a “threat to the plaintiff’s federally protected rights.” Younger, 401 U.S. at 46. Morrow

initiated the post-conviction action—he is not being prosecuted—and he does not allege that the

granting of funds for an investigator, even improperly, has prohibited him from raising

constitutional challenges in his post-conviction action. Separately, Morrow does not present any

evidence showing that a state court judge inappropriately refused his attempt to subpoena a

witness.

5 Morrow’s convictions and concurrent life sentences were affirmed on appeal on

December 29, 1999. See State v. Morrow, No. W19980583CCAR3CD, 1999 WL 1529719

(Tenn. Crim. App. Dec. 29, 1999), perm. app. denied, (Tenn. June 26, 2000).

Morrow’s remaining arguments involve his conclusory allegation that the state court judges

have intentionally delayed his case in bad faith. He attaches to his complaint several judiciary

complaints he sent to the Tennessee Court of the Judiciary, the Tennessee Bureau of Investigation,

the Governor of Tennessee, and the judges themselves. (ECF Nos. 1-3, 1-4, 1-6, 1-7, 1-8, 1-9,

1-10, 1-12, 1-13, 1-14, & 1-16.) While the Court acknowledges the unusually long delay in

Morrow’s state post-conviction proceedings, that delay alone does not evince “bad faith” on the

part of any state official. See Ken-N.K., Inc. v. Vernon Twp., 18 F. App’x 319, 325 n.2 (6th Cir.

2001) (“[T]he Supreme Court has applied the ‘bad faith’ exception to only one specific set of facts:

where state officials initiate repeated prosecutions to harass an individual or deter his conduct, and

where the officials have no intention of following through on these prosecutions.”). Morrow

therefore does not allege any extraordinary circumstance warranting this Court’s intervention in

his ongoing state post-conviction proceedings.

“A district court deciding to abstain under Younger has the option of either dismissing the

case without prejudice or holding the case in abeyance.” Coles v. Granville, 448 F.3d 853, 866

(6th Cir. 2006). Where a Plaintiff seeks only equitable relief, as opposed to legal relief in the form

of damages, “the district court may exercise its discretion and decide whether to dismiss the case.”

Nimer v. Litchfield Twp. Bd. of Trustees, 707 F.3d 699, 702 (6th Cir. 2013). In this case, because

Morrow seeks only equitable or injunctive relief, the Court determines that it is appropriate to

dismiss Morrow’s complaint 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 finds that leave to amend is not warranted.

In conclusion, the Court DISMISSES Morrow’s 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.6

Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by

Morrow 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), that any

appeal in this matter by Morrow would not be taken in good faith.

The Court must also address the assessment of the $505 appellate filing fee if Morrow

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, §§ 1915(a)-(b). Therefore, Morrow is instructed

that if he wishes to take advantage of the installment procedures for paying the appellate filing fee,

6 Morrow also moved “For Service of Complaint and Issuance of Subpoenas.” (ECF

No. 9.) Because the Court is dismissing his complaint, the motion is DENIED as moot.

he must comply with the procedures set out in the PLRA and McGore 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 Morrow, 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