Shanklin v. Crane Service Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

MICKEY SHANKLIN, )

)

Plaintiff, )

)

)

VS. ) No. 19-1224-JDT-cgc

)

)

CRANE SERVICE, INC., )

)

Defendant. )

ORDER TO MODIFY THE DOCKET, DISMISSING CASE,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On September 5, 2019, Plaintiff Mickey Shanklin, who is incarcerated at the

Bledsoe County Correctional Complex (BCCX) in Pikeville, Tennessee, filed a pro se

complaint pursuant to 42 U.S.C. § 1983 and a motion to proceed in forma pauperis.1

(ECF Nos. 1 & 2.) On October 9, 2019, the Court issued an order granting leave to proceed

in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform

1 When he filed the complaint, Shanklin was an inmate at the Madison County Criminal

Justice Complex in Jackson, Tennessee. (ECF No. 1 at PageID 2.) But on October 28, 2019, the

Madison County Sheriff’s Office notified the Court that Shanklin had been released to the

custody of the Tennessee Department of Correction (TDOC). (ECF No. 7.) A search of the

TDOC’s website for Felony Offender Information (https://apps.tn.gov/foil-app/search.jsp)

revealed that Shanklin is incarcerated at the BCCX. The Clerk is DIRECTED to modify the

docket to reflect Shanklin’s address at the BCCX.

Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) Shanklin sues Crane Service, Inc.

(Crane), a business in Jackson, Tennessee.

Shanklin alleges that Crane is attempting to obtain from him $3,650.75 in restitution

for “something that I had nothing to do with, and I was falsely charged for this.” (ECF

No. 1 at PageID 2.) He seeks dismissal of “all charges” against him and compensatory

damages for pain and suffering and time he has allegedly spent falsely imprisoned. (Id. at

PageID 3.)

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

(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, 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))).

Shanklin filed his complaint 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).

Shanklin seeks to sue only Crane, a private business. However, a plaintiff may not

use § 1983 to “sue purely private parties.” Brotherton v. Cleveland, 173 F.3d 552, 567 (6th

Cir. 1999). Only Defendants whose actions are “fairly attributable to the State” may be

sued under § 1983. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Collyer v.

Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). Shanklin does not allege how any action by

Crane can be attributed to the state. He instead appears to challenge his state-court criminal

charges and/or convictions, though he does not provide any detail about those charges or

convictions.2 Crane is not a state actor merely because it operates within the State of

Tennessee. Nor does Shanklin allege that Crane is involved with his allegedly wrongful

charges or has otherwise deprived him of his rights under the U.S. Constitution or federal

law. Because he alleges no basis on which to hold Crane liable under § 1983, Shanklin’s

complaint must be dismissed 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. Gonzalez-Gonzalez v.

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

2 Shanklin has sued several persons involved in his state-court criminal prosecution in

another case before this Court. See Shanklin v. State of Tennessee, et al., No. 19-1192-JDT-cgc

(W.D. Tenn. filed Sept. 5, 2019).

sua 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.”). In this case, the Court concludes that leave to amend is not

warranted.

In conclusion, the Court DISMISSES Shanklin’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.

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

by Shanklin 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). 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.

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

Shanklin 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, Shanklin is instructed that if he wishes to take

advantage of 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, if any, by Shanklin, this is

the second dismissal of one of his cases as frivolous or for failure to state a claim.3 This

strike shall take effect when judgment is entered. See 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

3 See Shanklin v. Strandquist, No. 19-2622-JTF-dkv (W.D. Tenn. Nov. 25, 2019)

(dismissed for failure to state a claim).