Owens v. Weirich

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

KEVIN D. OWENS,

Plaintiff,

v. Case No. 2:21-cv-02041-MSN-tmp

AMY WEIRICH,

Defendant.

______________________________________________________________________________

ORDER MODIFYING THE DOCKET;

ORDER DISMISSING COMPLAINT (ECF NO. 1) WITHOUT PREJUDICE IN PART

AND DISMISSING IT WITH PREJUDICE IN PART;

AND ORDER GRANTING LEAVE TO AMEND

______________________________________________________________________________

On January 15, 2021, Plaintiff Kevin D. Owens, who is incarcerated at the Shelby County

Criminal Justice Center (the “Jail”) in Memphis, Tennessee, filed a pro se civil complaint pursuant

to 42 U.S.C. § 1983, (see ECF No. 1), and a motion for leave to proceed in forma pauperis. (ECF

No. 2.) On January 20, 2021, the Court granted his motion for leave to proceed in forma pauperis

and assessed the $350 civil filing fee. (ECF No. 4.) The Clerk shall modify the docket to add the

State of Tennessee as a Defendant.

For the reasons explained below, the Court: (1) dismisses without prejudice the complaint’s

claims against Defendant Amy Weirich, for failure to state a claim to relief, see 28 U.S.C. §

1915(e)(2)(B)(ii)–(iii) and 28 U.S.C. § 1915A(b)(1)–(2); and (2) dismisses with prejudice the

complaint’s claims that challenge Owens’s confinement. See Heck v. Humphrey, 512 U.S. 477

(1994).

I. BACKGROUND

Owens was arrested on September 11, 2019 and charged with (1) the theft of Nathaniel

Robinson’s motor vehicle and (2) being a felon in possession of a firearm (collectively, the

“Charges”). (ECF No. 1 at PageID 2.) Officer Allen responded to the crime scene, and Robinson

told Allen that he had left his car running with the keys inside. (Id.) During the incident

investigation by law enforcement, Robinson told Sergeant Lawler that he had left his keys in the

vehicle’s ignition but had not left it running. (Id, at PageID 2–3.) Owens says “it was dismiss

[sic] but it was around November through December of 2019;” however, he does not specify what,

precisely, was dismissed. (Id. at PageID 2.) At the time he filed his § 1983 complaint, Owens was

confined at the Jail. (Id.)1

He names Shelby County District Attorney Amy Weirich as the sole Defendant. (Id. at

PageID 1–2.) Owens “would like the courts to look more into it because [there] is no grounds [sic]

of pro[of] to say I did this.” (Id. at PageID 4 (“My rights are being violat[ed]”).)

II. LEGAL STANDARDS

A. Screening Requirements

The Court must screen prisoner complaints and dismiss any complaint, or any portion of

it, if the complaint —

(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).

1. The Tennessee Department of Correction Felony Offender Information website

presently does not show Owens on active status in that database. See Search, Tenn. Dep’t of

Corrections, https://apps.tn.gov/foil-app/results.jsp (last visited on July 21, 2021).

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 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 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). The Court does not assume that conclusory

allegations are true, because they are not “factual,” and all legal conclusions in a complaint “must

be supported by factual allegations.” Iqbal, 556 U.S. at 679. Federal Rule of Civil Procedure 8

provides guidance on this issue. Although 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 screening cases accord more deference to pro se complaints than to complaints

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. Matauszak, 415 F. App’x 608, 612– 13 (6th

Cir. 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))).

B. Requirements To State A Claim 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). To succeed, Owens must satisfy both requirements.

III. DISCUSSION

A. Official Capacity Claims Against Weirich & Claims Against State Of Tennessee

To the extent Owens asserts claims against Weirich in her official capacity, those

allegations are treated as claims against her employer, the State of Tennessee. However, Owens

has no valid claim against the State. The Eleventh Amendment to the United States Constitution

provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh

Amendment has been construed to prohibit citizens from suing their own states in federal

court. Welch v. Tex. Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Va. Office for Prot. &

Advocacy v. Stewart, 563 U.S. 247, 253 (2011) (“A State may waive its sovereign immunity at its

pleasure, and in some circumstances Congress may abrogate it by appropriate legislation. But

absent waiver or valid abrogation, federal courts may not entertain a private person’s suit against

a State.” (citations omitted)). Tennessee has not waived its sovereign immunity. See Tenn. Code

Ann. § 20-13-102(a). Moreover, a state is not a person within the meaning of 42 U.S.C.

§ 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71 (1989). Owens thus has no claims for money damages

against Weirich in her official capacity.

Even if the Court liberally construes Owens’ request for examination of the Charges against

him, (see ECF No. 1 at PageID 4), as a claim for injunctive relief, the outcome is the same. The

Supreme Court has clarified that “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. at 71 n.10 (quoting Kentucky v.

Graham, 473 U.S. 159, 167 n.14 (1985), and Ex Parte Young, 209 U.S. 123, 159–60 (1908)); see

also Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 381 (6th Cir. 1993) (“[T]he [eleventh]

amendment does not preclude actions against state officials sued in their official capacity for

prospective injunctive or declaratory relief.” (citing Ex Parte Young, 209 U.S. 123)).

To proceed with official capacity claims for prospective injunctive relief against State

employees such as Defendant Weirich, Owens must allege that the State of Tennessee was

responsible for the violation of his constitutional rights because of a practiced custom or

policy. Kentucky, 473 U.S. at 166; Monell v. Dept of Soc. Servs., 436 U.S. 658, 691 (1978). The

Sixth Circuit has held that to establish the requisite causal link between a constitutional violation

and a policy, a plaintiff must “identify the policy, connect the policy to the [entity] itself and show

that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis

Police Dep’t., 8 F.3d 358, 364 (6th Cir. 1993). The custom or policy must be “the moving force”

behind the deprivation of the plaintiff’s rights. Powers v. Hamilton Cty. Pub. Def. Comm’n, 501

F.3d 592, 606–07 (6th Cir. 2007) (citing Monell, 436 U.S. at 694). Owens has not alleged he was

injured due to an unconstitutional policy or custom of the State of Tennessee. He thus also fails

to state a claim for prospective injunctive relief against Weirich.

B. Individual Capacity Claims Against Weirich

Owens names Weirich as a defendant but does not describe any particular conduct by her.

(See ECF No. 1 at PageID 2–3.) The doctrine of prosecutorial immunity shields Weirich from

Owens’s claims, and he does not offer any factual allegations suggesting otherwise.

Prosecutors are absolutely immune from suit for actions taken in initiating and pursuing

criminal prosecutions because that conduct is “intimately associated with the judicial phase of the

criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). “A prosecutor’s decision

to initiate a prosecution, including the decision to file a criminal complaint or seek an arrest

warrant, is protected by absolute immunity.” Howell v. Sanders, 668 F.3d 344, 351 (6th Cir.

2012). “‘The analytical key to prosecutorial immunity’ is ‘whether the actions in question are

those of an advocate.’” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 513 (6th Cir.

2019) (internal citations omitted). A prosecutor’s decisions to bring or not bring charges against

a particular person, or a prosecutor’s courtroom advocacy and litigation tactics over the course of

a prosecution, are protected by prosecutorial immunity. Conversely, actions such as “‘giving

legal advice to police,’ making ‘out-of-court statements’ at a press conference, [or] making

statements ‘in an affidavit supporting an application for an arrest warrant’” are not performed in

a prosecutor’s role as an advocate and are thus not protected by prosecutorial immunity. Koubriti

v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010); see also Van de Kamp v. Goldstein, 555 U.S.

335, 342 (2009).

Owens does not allege any facts suggesting that his claims against Weirich arise from any

extra-judicial conduct by her. Rather, Plaintiff argues that the Charges against him were

improper. That is, his claims arise from actions Weirich took in her traditional role as an advocate

for the State. She is immune from suit for those acts. The prosecution of criminal charges against

Owens was unequivocally an action taken in the course of traditional prosecutorial functions.

Accordingly, Owens fails to state a claim to relief against Weirich in her individual

capacity.

C. Heck v. Humphrey Bar

Owens claims that “it was dismiss[ed].” (ECF No. 1 at PageID 2.) However, he was

confined in the Jail at the time he filed his § 1983 complaint. (Id.) It is not clear from the present

record whether he is currently incarcerated for one or both of the Charges, (see id.), or for offenses

not described in his § 1983 complaint. To the extent he alleges that he is being illegally confined

by the State of Tennessee in connection with the Charges, such claims must be dismissed with

prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994).

Owens’ attack on his sentence (and any of its underlying searches, seizures, arrests, and

prosecutions) is a challenge to the validity of his continued confinement. (See ECF No. 1 at

PageID 4 (“[There are] no grounds of pro[of] to say that I did this”).) Such a claim is not

cognizable under § 1983.

In Heck v. Humphrey, the U.S. Supreme Court held that a state prisoner cannot bring a §

1983 action directly challenging his confinement until and unless the reason for his continued

confinement has been reversed on direct appeal, expunged by executive order, declared invalid

by a state tribunal, or otherwise called into question by a federal court’s issuance of a writ of

habeas corpus. Heck, 512 U.S. at 486–87. A claim challenging confinement must be dismissed

regardless of whether the plaintiff seeks injunctive or monetary relief. Id. at 489–90 (“[H]abeas

corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his

confinement ... even though such a claim may come within the literal terms of § 1983”); Preiser

v. Rodriguez, 411 U.S. 475, 488–90 (1973).

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended Heck to bar §

1983 actions that do not directly challenge confinement, but instead challenge procedures that

necessarily imply unlawful confinement. Id. at 648. A prisoner may not raise claims in a civil

rights action if a judgment on the merits of those claims would affect the validity of his conviction

or sentence, unless the conviction or sentence has been set aside. See id. at 646; Heck, 512 U.S.

at 486–87. The holdings in these cases, “taken together, indicate that a 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, 79, 81–82 (2005) (a § 1983 action

is barred when a state prisoner challenges the fact or duration of his confinement and seeks either

“immediate release from prison” or the “shortening” of his term of confinement) (quoting Preiser,

411 U.S. at 482).

Owens has not alleged that any conviction of his has been invalidated. Thus, to the extent

that he asks this Court to alter, reverse, or otherwise modify any concluded state criminal case

against him, the Court cannot do so. Because Plaintiff’s confinement has not been remedied by

any of the procedures prescribed in Heck, his claims are not cognizable under § 1983. Even if

Plaintiff had properly stated a claim against any Defendant, he would not be entitled to the relief

he seeks under § 1983. Claims challenging the fact, and not the conditions, of confinement –

such as Owens suggests here – must be brought in a habeas petition under 28 U.S.C. § 2254, not

in a suit under § 1983. If Plaintiff were to prevail on his complaint, (ECF No. 1), he would

impermissibly call into question his convictions, sentences, and/or continued confinement.

For these reasons, the Court DISMISSES WITH PREJUDICE those claims by Owens

that challenge his confinement. Such allegations are barred by Heck v. Humphrey.

IV. 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 Prison Litigation Reform Act, 28 U.S.C. §§ 1915, et

seq. (the “PLRA”). Lucas v. Chalk, 785 F. App’x 288, 291 (6th Cir. 2019) (citing LaFountain v.

Harry, 716 F.3d 944, 951 (6th Cir. 2013)) (“[W]e hold, like every other circuit to have reached

the issue, that under Rule 15(a) a district court can allow a plaintiff to amend his complaint even

when the complaint is subject to dismissal under the PLRA”); 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 are not required to 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 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”).

If Plaintiff chooses to do so, the Court grants him leave to amend his complaint as to claims

other than those barred by Heck v. Humphrey, described supra. Plaintiff is advised that any

amendment will supersede his prior filings and must be complete in itself without reference to the

prior pleadings. An amended complaint must be signed, and the text of the amended complaint

must allege sufficient facts to support each claim without reference to any extraneous document.

Any exhibits must be identified by number in the text of the amended complaint and must be

attached to the complaint. All claims alleged in an amended complaint must arise from the facts

originally alleged. Each claim for relief must be stated in a separate count and must identify each

Defendant sued in that count. If Plaintiff fails to file an amended complaint within the time

specified, the Court will dismiss this case and enter judgment. The Court recommends that any

such dismissal of this case be treated as a strike pursuant to 28 U.S.C. § 1915(g). See Simons v.

Washington, 996 F.3d 350, 354 (6th Cir. 2021).

V. CONCLUSION

For all of the reasons explained above:

(1) The complaint, (ECF No. 1), is DISMISSED WITHOUT PREJUDICE as to

claims against the State of Tennessee, official capacity claims against Defendant Weirich, and

individual capacity claims against Defendant Weirich. Such claims fail to state a claim to relief.

See 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii) and 28 U.S.C. § 1915A(b)(1)–(2). Leave to amend such

claims is GRANTED.

(2) The complaint (ECF No. 1) is DISMISSED WITH PREJUDICE as to claims that

challenge Plaintiff’s confinement. Such claims are barred by Heck v. Humphrey. Leave to amend

such claims is DENIED.

IT IS SO ORDERED, this the 16th day of September, 2021.

s/ Mark Norris

MARK S. NORRIS

UNITED STATES DISTRICT JUDGE