Little v. Memphis Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

LEE MARL LITTLE, JR., )

)

Plaintiff, )

) No. 2:19-cv-02282-TLP-tmp

v. )

)

MEMPHIS POLICE DEPARTMENT, )

et al., )

)

Defendants. )

ORDER DISMISSING COMPLAINT,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,

NOTIFYING PLAINTIFF OF APPELLATE FILING FEE,

AND DENYING AS MOOT REQUEST FOR APPOINTMENT OF COUNSEL

Plaintiff Lee Marl Little, Jr., an inmate at the Federal Correctional Institution in

Memphis, Tennessee (“FCI Memphis”), sued pro se under 42 U.S.C. § 1983 and moved to

proceed in forma pauperis. (ECF Nos. 1 & 4.) The Court granted leave to proceed in forma

pauperis and assessed the civil filing fee under the Prison Litigation Reform Act (“PLRA”),

28 U.S.C. §§ 1915(a)–(b). (ECF No. 5.) The Court directs the Clerk to record the Defendants

as the Memphis Police Department (“MPD”); Detectives D. Gooch, R. Jackson, D. Smith,

J. Myers, M. Stephens, R. Tabor, I. Ruiz, and J. Gross; and the Memphis City Attorney.

BACKGROUND

Plaintiff contests actions of MPD detectives leading to his arrest on firearm and drug

charges. He contests the warrant Detective Gooch provided supporting Plaintiff’s traffic stop

and later arrest. (Id. at PageID 3–5.) During the stop, Detective Gooch searched Plaintiff’s car

and found drugs. (Id. at PageID 7.) Plaintiff alleges MPD officers then took the drugs to his

home and searched the home without a warrant based on only a tip from an unnamed

confidential informant. (ECF No. 1 at PageID 2–3.) According to Plaintiff, Detective Gooch

found a firearm, ammunition, and “a large sum of money” in the home. (Id. at PageID 7.)

Detective Gooch then “grouped” those items together with drugs in Plaintiff’s car and

photographed them to make it appear “as though all of it were found solely at the home.” (Id.)

Plantiff alleges after the search, officers obtained “a correct warrant issued to support the illegal

search,” but the warrant listed an incorrect address. (Id. at PageID 8.) Plaintiff asserts that

Detective Gooch “simply changed the address and wrote it in.” (Id.)

Plaintiff mentions no other detective but alleges that Detective Gooch, “and his support

staff, all colluded and conspired with each other, to participate in the lie that there was a warrant

supporting they’re [sic] actions.” (Id. at PageID 5.) Plaintiff asserts that the MPD and City

Attorney “are involved in one way or the other, all in they’re [sic] individual and municipal

capacity, a[s] part of this illegal search and seizure of the petitioner.” (Id. at PageID 6.) He

seeks to hold the MPD responsible for “hiring and supporting” Detective Gooch and the others

involved. (Id. at PageID 3, 6.) And he seeks to hold the unnamed Memphis City Attorney

responsible for “participating and colluding as to this illegal search and seizure.” (Id. at

PageID 3.)

Plaintiff sues Defendants in their individual capacities. (Id. at PageID 2.) He seeks

compensatory damages. (Id. at PageID 8–9.)

LEGAL STANDARDS

I. Screening Requirements Under 28 U.S.C. § 1915A

The Court has to screen prisoner complaints and to dismiss any complaint, or any portion

of it, if the complaint—

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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 that relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

As to step one, in assessing whether the complaint states a claim on which relief may be

granted, the Court applies 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). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Under

those standards, 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” because they are not “factual” and legal

conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. And Federal

Rule of Civil Procedure 8 provides guidance on this issue.

Even though Rule 8 only requires a complaint to contain “a short and plain statement of

the claim showing that the pleader is entitled to relief,” it also requires factual allegations to

make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S.

at 555 n.3.

Courts conducting the screening analysis will accord slightly more deference to pro se

complaints than to those drafted by lawyers. “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)). That said, 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); see also Brown v.

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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))).

II. Requirements to State a Claim Under 42 U.S.C. § 1983

Although Plaintiff is a federal inmate, he properly sued under 42 U.S.C. § 1983. 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, and (2) that a defendant caused harm while

acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). For his

complaint to succeed, Plaintiff must satisfy these requirements.

ANALYSIS

I. Plaintiff Does Not State a Claim Against the MPD

Plaintiff sues the MPD. But the MPD is a division of city government. It is not an entity

subject to suit under § 1983. See Jones v. Union Cnty., Tennessee, 296 F.3d 417, 421 (6th Cir.

2002) (citing Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)). Plaintiff’s claims against

the MPD are construed as against the City of Memphis, which may be held liable only if an

unconstitutional custom or policy of the city causes Plaintiff’s injuries. See Monell v. Dep’t. of

Soc. Serv., 436 U.S. 658, 691–92 (1978). To show municipal liability, Plaintiff “must

(1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3)

show that his particular injury was incurred due to execution of that policy.” Alkire v. Irving,

330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th

Cir. 1993)). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that municipal

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liability is limited to action for which the municipality is actually responsible.’” City of St. Louis

v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479–80

(1986) (emphasis in original)).

Plaintiff does not allege that Detective Gooch acted under an official policy or custom of

the City of Memphis. He instead alleges that Detective Gooch, on his own initiative, acted

illegally and violated Plaintiff’s rights. His allegation that the MPD is “involved in one way or

the other” is not enough to hold the City of Memphis or the MPD responsible for the actions of

its employee.

II. Plaintiff Fails to Allege Any Conduct by Any Detective Other Than D. Gooch

Plaintiff does not allege any misconduct against Detectives Jackson, Smith, Myers,

Stephens, Tabor, Ruiz, or Gross. In fact, he does not mention any of these Defendants in his

complaint outside the caption. The only mention of these Defendants is in an attachment to the

complaint, but Plaintiff does not reference that attachment or allege that (or how) the Defendants

violated his rights. (ECF No. 1-1 at PageID 11–12.) He therefore fails to state a claim against

Detectives Jackson, Smith, Myers, Stephens, Tabor, Ruiz, or Gross. See Twombly, 550 U.S. at

570 (holding that a complaint that fails to allege any action by a Defendant necessarily fails to

“state a claim for relief that is plausible on its face”).

III. Plaintiff’s Claims Are Barred

Plaintiff’s allegations challenge the search and seizure underlying his arrest and the arrest

itself leading to criminal charges. Plaintiff pleaded guilty to some of those charges, and this

Court sentenced him to 120 months’ imprisonment. See United States v. Little, 2:17-cr-20269-

TLP, ECF Nos. 68–70 (W.D. Tenn. Jan. 15, 2019). Plaintiff’s appeal remains pending.

See United States v. Little, Case No. 19-5064 (6th Cir.). The Supreme Court has held that “a

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state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought

(damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to

conviction or internal prison proceedings)—if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74,

81–82 (2005); see Edwards v. Balisok, 520 U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S.

477, 486 (1994).

Success on the merits of Plaintiff’s suit would show the invalidity of his conviction and

detention. He alleges that Detective Gooch illegally stopped him, searched his home without a

warrant, arrested him without probable cause, and produced a faulty warrant later to justify his

actions. Plaintiff contends that the Memphis City Attorney in some way aided and colluded with

Gooch. If the Court were to find in Plaintiff’s favor on those claims, his conviction would be

questioned. But Plaintiff’s conviction has not been invalidated. His claims are therefore

premature, and this § 1983 suit is barred.

For all these reasons, Plaintiff’s Complaint fails to state a claim for relief and is

dismissed.

AMENDMENT UNDER THE PLRA

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.”). But courts need not

grant leave to amend where an amendment cannot cure the deficiency. Gonzalez-Gonzalez v.

United States, 257 F.3d 31, 37 (1st Cir. 2001) (“This does not mean, of course, that every sua

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sponte dismissal entered without prior notice to the plaintiff automatically must be reversed. If it

is crystal clear that . . . amending the complaint would be futile, then a sua sponte dismissal may

stand.”); 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.”). Because

Plaintiff cannot cure the deficiencies in his complaint presently this Court holds that leave to

amend is not warranted here.

APPELLATE ISSUES

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

Plaintiff here would be taken in good faith. The good faith standard is an objective one.

Coppedge v. United States, 369 U.S. 438, 445 (1962). 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. This Court therefore CERTIFIES, under 28 U.S.C. § 1915(a)(3), that any appeal by

Plaintiff would not be taken in good faith.

The Court also addresses the assessment of the $505 appellate filing fee if Plaintiff still

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 benefit from the installment procedures 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). The Court therefore instructs Plaintiff

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that, if he wishes to benefit from the installment procedures for paying the appellate filing fee, 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 by Plaintiff, this is the first

dismissal of one of his cases as frivolous or for failure to state a claim. This strike will take

effect when this Court enters judgment. See Coleman v. Tollefson, 135 S. Ct. 1759, 1763–64

(2015).

CONCLUSION

In conclusion, the Court DISMISSES Plaintiff’s complaint for failure to state a claim on

which relief can be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). And leave to

amend is DENIED. The Court also CERTIFIES that any appeal here would not be taken in good

faith.

Plaintiff also requested appointment of counsel. (ECF No. 1 at PageID 9.) Because the

Court is dismissing the complaint, Plaintiff’s request is DENIED as moot.

SO ORDERED, this 30th day of October, 2019.

s/Thomas L. Parker

THOMAS L. PARKER

UNITED STATES DISTRICT JUDGE

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