Wilborn v. Shelby County Sheriff Department

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

LARRY L. WILBORN, )

)

Plaintiff, )

)

VS. ) No. 19-2301-JDT-cgc

)

SHELBY COUNTY SHERIFF’S )

DEPARTMENT, ET AL., )

)

Defendants. )

ORDER DISMISSING COMPLAINT,

CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On May 9, 2019, Plaintiff Larry L. Wilborn, who at the time of filing was a pretrial detainee

at the Shelby County Criminal Justice Center (Jail) in Memphis, Tennessee, filed a pro se

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

Nos. 1 & 3.) The Court issued an order on May 13, 2019, granting leave to proceed in forma

pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA),

28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) The Clerk shall record the Defendants as the Shelby

County Sheriff’s Department; Shelby County Officers First Name Unknown (FNU) Louellen,

FNU Bass, FNU Gladies, FNU Harris, and FNU Elliot; Captain FNU Dane; Lieutenant FNU

Holliman; and Jail Coordinators FNU Woods and FNU Kight.1

1 Wilborn also seeks to sue “several more” unnamed officers in his complaint. (ECF No.

1 at PageID 1, 2.) However, service of process cannot be made on an unknown or fictitious

party. The filing of a complaint against a “John Doe” defendant does not toll the running of the

Wilborn alleges that, when he was brought into the Jail, unspecified officers asked him

what he wanted done with paperwork he had with him. (ECF No. 1 at PageID 2-3.) Officer

Louellen asked Wilborn if he wanted it thrown away, and Wilborn specified that he wanted the

paperwork left with his other property at the Jail. (Id.) Louellen told Wilborn that “she was gone

[sic] put my stuff with the rest of my property because it was to[o] much stuff to throw away.”

(Id. at PageID 3.) Wilborn later asked Officer Bass to make sure Louellen had properly stored

Wilborn’s property, and Bass assured Wilborn he would check. (Id.) About twenty-five minutes

later, Wilborn again asked Bass about his property, and Bass told Wilborn that Louellen had placed

Wilborn’s property together. (Id.) Wilborn asserts that this was a lie. (Id.)

Wilborn alleges that he was scheduled to be in “the hole” from October 18, 2018, through

November 6, 2018, but actually began his “hole days” about a week later than scheduled and was

released a week and a half late. (Id. at PageID 3-4.) Once he was released from the hole, he

learned that his property was missing. (Id. at PageID 4.) Wilborn alleges that “something [was]

not ‘right’” about the situation. (Id.) He alleges that his lost paperwork includes statements of

witnesses that could prove his innocence of his criminal charges and other “important stuff” that

he “spent [a lot] of money for.” (Id. at PageID 5.)

Wilborn seeks “[a] proper investigation” into the whereabouts of his property and wants

the Jail to replace what can be replaced. (Id.) He also seeks “to be release[ed] off of this false

case or a proper bond.” (Id.)

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

portion thereof, if the complaintC

statute of limitation against that party. See Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996);

Bufalino v. Mich. Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir. 1968).

(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))).

Wilborn 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, except that in any

action brought against a judicial officer for an act or omission taken in such officer=s

judicial capacity, injunctive relief shall not be granted unless a declaratory decree

was violated or declaratory relief was unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

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).

Wilborn’s complaint contains no allegations against Defendants Gladies, Harris, Elliot,

Dane, Holliman, Woods, or Kight. When a complaint fails to allege any action by a Defendant, it

necessarily fails to “state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 570.

Wilborn’s allegations against the Shelby County Sheriff’s Department are construed as

against Shelby County. The complaint, however, does not state a valid § 1983 claim against

Shelby County. When a § 1983 claim is made against a municipality or county, the court must

analyze two distinct issues: (1) whether the plaintiff’s harm was caused by a constitutional

violation; and (2) if so, whether the municipality or county is responsible for that violation. Collins

v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).

A local government such as a municipality or county “cannot be held liable solely because

it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory.” Monell v. Dep’t. of Soc. Serv., 436 U.S. 658, 691 (1978) (emphasis

in original); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). A municipality

may be held responsible for a constitutional deprivation only if there is a direct causal link between

a municipal policy or custom and the alleged deprivation. Monell, 436 U.S. at 691-92; Deaton v.

Montgomery Co., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a

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

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)).

Wilborn alleges only that officers at the Jail lost or stole his property. He does not allege

that the Jail has a policy or custom which led to the loss or theft of his property and thus does not

state a claim against Shelby County.

Wilborn also does not state a § 1983 claim against the individual officers concerning his

property. Claims for deprivation of property are not actionable under § 1983 if adequate state

remedies are available to redress the deprivation. See, e.g., Parratt v. Taylor, 451 U.S. 527 (1981),

partially overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Smith

v. Rose, 760 F.2d 102, 106 (6th Cir. 1985). This is true even if the property is taken intentionally.

Hudson v. Palmer, 468 U.S. 517, 533 (1984). “[T]he State of Tennessee does provide an adequate

post-deprivation remedy for takings of property.” McMillan v. Fielding, 136 F. App’x 818, 820

(6th Cir. 2005) (citing Brooks v. Dutton, 751 F.2d 197, 199 (6th Cir. 1985)). Wilborn’s remedy

for his lost property, therefore, lies in state court.

Wilborn requests an investigation into his missing property. Wilborn, however, has no

constitutional right to an investigation. Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007)

(citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)) (“There is no statutory or common law

right, much less a constitutional right, to an investigation.”).

To the extent Wilborn is asking this Court to intervene in his criminal proceeding and order

the charges dismissed, the Court cannot do so. Under the Anti-Injunction Act, 28 U.S.C. § 2283,

“[a] court of the United States may not grant an injunction to stay proceedings in a State court

except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or

to protect or effectuate its judgments.” The Sixth Circuit has explained that “[t]he Act thereby

creates ‘an absolute prohibition against enjoining state court proceedings, unless the injunction

falls within one of three specifically defined exceptions,’ which are set forth in the statutory

language.” Andreano v. City of Westlake, 136 F. App’x 865, 879-80 (6th Cir. 2005) (quoting Atl.

Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 286 (1970)). Federal injunctions

against state criminal proceedings can be issued only “under extraordinary circumstances where

the danger of irreparable loss is both great and immediate.” Younger v. Harris, 401 U.S. 37, 45

(1971) (internal quotation marks and citation omitted). The Supreme Court has emphasized that

[c]ertain types of injury, in particular, the cost, anxiety, and inconvenience of

having to defend against a single criminal prosecution, could not by themselves be

considered “irreparable” in the special legal sense of that term. Instead, the threat

to the plaintiff’s federally protected rights must be one that cannot be eliminated by

his defense against a single criminal prosecution.

Id. at 46. In this case, Wilborn does not allege extraordinary circumstances that would permit the

Court to become involved in his state-court criminal matter.

For the foregoing reasons, Wilborn’s complaint is subject to dismissal in its entirety for

failing to state a claim on which relief may be granted.

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 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 Wilborn’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

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

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 pay the filing fee in installments

under the PLRA. 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. However, McGore sets out specific

procedures for implementing the PLRA, 28 U.S.C. §§ 1915(a)-(b). Wilborn is instructed that if

he wishes to take advantage of the installment method for paying the appellate filing fee, he must

comply with 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 Wilborn, this is the

second dismissal of one of his cases as frivolous or for failure to state a claim.2 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

2 See Wilborn v. Tennessee, No. 2:11-cv-02658-JDT-tmp (W.D. Tenn. July 2, 2012)

(dismissing complaint for failure to state a claim), aff’d, No. 12-5836 (6th Cir. Mar. 6, 2013.)