Hamer v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

HERBERT HAMER, )

)

Plaintiff, )

)

vs. ) No. 21-2582-SHM-tmp

)

UNITED STATES OF AMERICA, )

)

Defendant. )

ORDER MODIFYING THE DOCKET;

DISMISSING CONSOLIDATED COMPLAINT (ECF NOS. 1, 12 & 14) WITH PREJUDICE;

DENYING LEAVE TO AMEND;

DENYING PENDING MOTIONS (ECF NOS. 13 & 15);

CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH;

NOTIFYING HAMER OF THE APPELLATE FILING FEE;

NOTIFYING HAMER OF STRIKE RECOMMENDATION UNDER 28 U.S.C. § 1915(g);

AND DISMISSING THE CASE

Before the Court are pro se Plaintiff Herbert Hamer’s complaint (ECF No. 1), first

amended complaint (ECF No. 12), second amended complaint (ECF No. 14), “motion to pay

some of the filing fee” (ECF No. 13), and motion for a hearing (ECF No. 15). For the reasons

explained below: (1) the complaint, the first amended complaint, and the second amended

complaint (ECF Nos. 1, 12 & 14) are DISMISSED WITH PREJUDICE; and (2) the pending

motions (ECF Nos. 13 & 15) are DENIED.

I. PROCEDURAL HISTORY

On September 13, 2021, Hamer filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No.

1.) Hamer was confined at the Cimarron Correctional Facility in Cushing, Oklahoma, when he

filed the complaint. (ECF No. 1-1 at PageID 2.) On December 29, 2021, the Court granted leave

to proceed in forma pauperis and assessed the three hundred and fifty dollar ($350.00) filing fee

in accordance with the Prison Litigation Reform Act (the “PLRA”), 28 U.S.C. §§ 1915, et seq..

(ECF No. 11; see id. at PageID 32 (“If Plaintiff is transferred to a different prison or released, he

is ORDERED to notify the Court immediately, in writing, of his change of address”).)

On March 21, 2022, Hamer filed a “motion to fil[e] a civil rights lawsuit on a con[s]titution

violation.” (ECF No. 12.) The Court construes Hamer’s March 21, 2022 motion as an application

to file a first amended complaint. (Id. (the “FAC”). The Court GRANTS the March 21, 2022

motion.

On April 6, 2022, Hamer filed a “motion to pay some of the filing fee.” (ECF No. 13 (the

“Fee Motion”).) Hamer submitted one hundred dollars cash ($100.00) with the Fee Motion (the

“April Payment”). The Clerk of Court applied the April Payment to the outstanding amount of

the civil filing fee. The Clerk sent Hamer a letter saying that the Court cannot accept postal

payments via United States mail.

On May 2, 2022, Hamer filed a second amended complaint. (ECF No. 14 (the “SAC”).)

On May 17, 2022, Hamer filed a motion for a hearing. (ECF No. 15 (the “Motion For A

Hearing”).) Hamer did not explain the basis for his hearing request.

According to the Federal Bureau of Prisons website, Hamer was confined at the United

States Penitentiary in Atlanta, Georgia as of September 15, 2021, and he was released on June 3,

2022. (See https://www.bop.gov/inmateloc/.) Hamer says that he was “incarcerated at the

Diersen Charities Memphis” (the “DCM”)1 in Memphis, Tennessee when he filed (1) the FAC

(ECF No. 12-1 at PageID 35), (2) the Fee Motion (ECF No. 13-1 at PageID 37), (3) the SAC

(ECF No. 14-1 at PageID 39), and (4) the Motion For A Hearing. (ECF No. 15-1 at PageID 41.)

1 See https://www.dismas.com/about/fast-facts/ (“We are one of the largest, not-for-profit

providers of residential, effective, evidence based re-entry services in the United States … [We]

provide … residential re-entry centers … across the nation”).

Hamer has never notified the Court in writing that he has been transferred to a different facility.

(See ECF Nos. 6 & 7.)

The Court CONSOLIDATES the complaint, the FAC, and the SAC as the Consolidated

Complaint (ECF Nos. 1, 12 & 14) for purposes of screening Hamer’s § 1983 claims under the

PLRA. The Consolidated Complaint alleges claims of (1) violation of Hamer’s right not to be

subject to double jeopardy and (2) Hamer’s wrongful placement on Tennessee’s sex offender

registry list. (Id.) Hamer sues: (1) the United States of America; and (2) the State of Tennessee.

II. SCREENING OF THE CONSOLIDATED COMPLAINT

A. LEGAL STANDARD

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).

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). Applying 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). 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 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 will accord 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)). 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, 613 (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 § 1983

Hamer sues under 42 U.S.C. § 1983. (ECF No. 1 at PageID 1.) 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).

III. ANALYSIS

A. CLAIM AGAINST THE UNITED STATES OF AMERICA

The Consolidated Complaint alleges that Hamer was charged and incarcerated twice for

one incident of “non contact of probation officer on supervised release.” (ECF No. 1 at PageID 1

(the “Double Jeopardy Claim”).) Hamer alleges the Double Jeopardy Claim against the United

States of America. (Id.) Hamer seeks release from confinement and five hundred million dollars

($500,000,000.00) for “being violated twice on the same violation factual basis [sic].” (Id.)

Hamer’s Double Jeopardy Claim against the United States of America is construed as a

claim under Bivens v. Six Unknown Fed. Agents, 403 U.S. 388 (1971).

Twenty-eight U.S.C. § 1331 provides that federal District Courts have “original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

Section 1331 requires that complaints allege valid claims under the United States Constitution or

some federal law providing for a federal right of action. Hamer alleges that the United States of

America violated Hamer’s federal constitutional “due process rights, i.e., double jeopardy.” (ECF

No. 1 at PageID 1.) Therefore, the Court considers Hamer’s claim under Bivens.

A prisoner “may not bring a Bivens claim against [a] [federal] officer’s employer, the

United States, or the BOP [Bureau of Prisons],” see Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

72 (2001), because Bivens claims against the United States and federal agencies are barred by

sovereign immunity. Franklin v. Henderson, No. 00–4611, 2000 WL 861697, at *1 (6th Cir. June

20, 2001); Fagan v. Luttrell, No. 97–6333, 2000 WL 876775, at *3 (6th Cir. June 22, 2000). The

United States of America is immune from suit. See United States v. Mitchell, 463 U.S. 206, 212,

103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). A suit under Bivens may be brought only against

individual officers for certain constitutional violations.

For these reasons, Hamer’s Double Jeopardy Claim against the United States of America

is DISMISSED WITH PREJUDICE because the United States of America is not a proper

defendant in a Bivens action.

B. CLAIM AGAINST THE STATE OF TENNESSEE

Hamer sues the State of Tennessee for “us[ing] a case tha[t] happen[ed] in Vietnam at the

time I was in [the] war in 1966-1968” to place Hamer on Tennessee’s sex offender registry list.

(ECF No. 12 at PageID 34 (the “Registry Claim”).) Hamer asks the Court “to get the State of

Tennessee to remove [Hamer] from the list because it did not happen in the United States of

America. The thing they [are] using came from my Army record in Vietnam and [they are] trying

to use this in the United States.” (ECF No. 14 at PageID 38.) Hamer alleges that his placement

on Tennessee’s sex offender registry list “violat[es] all [of] Plaintiff[’s] right[s].” (Id.) The

Consolidated Complaint alleges that Hamer is being denied “a place to live in Tennessee” based

on his alleged sex offense during the Vietnam War. (ECF No. 12 at PageID 34.) The Consolidated

Complaint does not allege: the date Hamer was placed on Tennessee’s sex offender registry list;

the date of the offense for which he was placed on the registry list; when he allegedly was refused

housing in Tennessee based on his sex offender registry listing; whether he asked the State to be

removed from the registry list and was denied; or other injuries he has suffered as a result of

allegedly being on Tennessee’s sex offender registry. The Consolidated Amended Complaint does

not allege facts explaining how Hamer is at the DCM re-entry facility in Memphis, if he is allegedly

“being den[ied] a place to live in Tennessee.” (See id.) Hamer seeks removal from Tennessee’s

sex offender registry list and five hundred million dollars ($500,000,000.00). (Id.; ECF No. 14 at

PageID 38.)

Hamer has no valid claim against the State of Tennessee. 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 States 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). Tennessee 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).

The Registry Claim is DISMISSED WITH PREJUDICE because Hamer has no claim

under § 1983 against the State of Tennessee.

C. CLAIMS THAT AROSE BEFORE SEPTEMBER 4, 2020

To the extent one or more of the Consolidated Complaint’s claims arose before September

4, 2020, those claims are time-barred by the one-year statute of limitations applicable to § 1983

claims in Tennessee. (See Tenn. Code Ann. § 28-3-104(a)(1)(B); Edison v. Tenn. Dep’t of

Children’s Servs., 510 F.3d 631, 634-35 (6th Cir. 2007); ECF No. 1 at PageID 1 (deemed filed on

September 4, 2021); Mason v. Dep’t of Justice, 39 F. App’x 205, 207 (6th Cir. 2002) (“the

appropriate statute of limitations for [a] Bivens action arising in Tennessee is one year”);

Houston v. Lack, 487 U.S. 266, 270, 276 (1988) (adopting the mailbox rule for federal pro se

prisoner filings).)

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 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”). 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”).

The Court DENIES leave to amend because the deficiencies in Hamer’s Consolidated

Complaint cannot be cured. It would be futile to give Hamer an opportunity to amend.

V. APPELLATE ISSUES

Under Federal Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a)(3), the Court

considers whether an appeal by Hamer would be taken in good faith. See Callihan v. Schneider,

178 F.3d 800, 803–04 (6th Cir. 1999). Under Rule 24(a), if the District Court permits a party to

proceed in forma pauperis, that party may also proceed on appeal in forma pauperis without further

authorization. There is an exception when the District Court “certifies that the appeal is not taken

in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis.” Fed.

R. App. P. 24(a)(3)(A). If the District Court denies pauper status, the party may move to proceed

in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)–(5).

The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445

(1962). The test for whether a party appeals in good faith is whether the litigant seeks appellate

review of any issue that is not frivolous. Id. “It would be inconsistent for a court to determine that

a complaint should be dismissed prior to service on Defendants but has sufficient merit to support

an appeal in forma pauperis.” DePriest v. Prestress Servs., Inc., No. 13-2768-JDT-cgc, 2014 WL

1269933, at *1 (W.D. Tenn. Mar. 27, 2014) (citing Williams v. Kullman, 722 F.2d 1048, 1050 n.1

(2d Cir. 1983)). For the same reasons the Court dismisses Hamer’s Consolidated Complaint for

failure to state a claim, the Court finds that an appeal would not be taken in good faith. The Court

therefore CERTIFIES, under Federal Rule of Appellate Procedure 24(a), that any appeal by Hamer

would not be taken in good faith. The Court DENIES leave to proceed on appeal in forma

pauperis. If Hamer appeals, he must pay the full $505 appellate filing fee or move for leave to

appeal in forma pauperis with a supporting affidavit in the Sixth Circuit. See Fed. R. App. P.

24(a)(5).

VI. NOTICE OF STRIKE RECOMMENDATION

The “three strikes” provision of 28 U.S.C. § 1915(g) prevents a court from granting in

forma pauperis status to a prisoner who “has, on 3 or more prior occasions, while incarcerated ...

brought an action or appeal in a court of the United States that was dismissed on the grounds that

it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. §

1915(g). For § 1915(g) analysis of Hamer’s future filings, if any, the Court recommends that the

dismissal of this case be treated as a strike pursuant to § 1915(g). See Simons v. Washington, 996

F.3d 350, 353 (6th Cir. 2021).

VII. THE FEE MOTION

On April 6, 2022, Hamer filed the Fee Motion and submitted the April Payment. (ECF No.

13.) The Fee Motion says only: “Motion to pay some on the filing fee.” (Id. at PageID 36.)

To the extent Hamer intended the Fee Motion to make a record of the April Payment, the

Motion is MOOT. The Clerk of the Court documented the April Payment on the case docket.

To the extent Hamer intended the April Payment to satisfy, in full, Hamer’s obligation to

pay the civil filing fee, the Fee Motion is DENIED. The PLRA provides prisoners the opportunity

to pay the filing fee in monthly installments, but prisoners remain responsible for paying the full

filing fee. See 28 U.S.C. § 1915(b). The obligation to pay the fee accrues at the time the case is

filed. McGore v. Wrigglesworth, 114 F.3d 601, 613 (6th Cir. 1997), partially overruled on other

grounds by LaFountain, 716 F.3d at 951 (overruling McGore to allow plaintiffs to amend

complaints when the complaints are subject to dismissal under the PLRA).

To the extent the Fee Motion seeks relief other than that described above, the Fee Motion

is MOOT. The case will not proceed because the Consolidated Complaint fails to state a claim to

relief.2

VIII. CONCLUSION

For the reasons explained above:

2 When a District Court grants leave to proceed in forma pauperis to a prisoner-plaintiff

who is released before the conclusion of the case, the Sixth Circuit has held that “the obligation to

pay the remainder of the fees is to be determined solely on the question of whether the released

individual qualifies for pauper status.” McGore, 114 F.3d at 613. The record in Hamer’s case is

unclear about whether he has been released from confinement and, if so, when. If Hamer has been

released from confinement, he must submit a non-prisoner in forma pauperis affidavit or the

balance of the civil filing fee for the case to proceed. Given that the case is not proceeding because

of the Consolidated Complaint’s pleading deficiencies, the Court need not determine Hamer’s

present status as a confined detainee or an inmate for purposes of satisfying his civil filing fee

obligation.

A. Hamer’s March 21, 2022 motion (ECF No. 12) is GRANTED to the extent Hamer

seeks leave to file the FAC;

B. The Consolidated Complaint (ECF Nos. 1, 12 & 14) is DISMISSED WITH

PREJUDICE in its entirety for failure to state a claim on which relief can be granted, pursuant to

28 U.S.C. §§ 1915(e)(2) and 1915A(b). Leave to amend is DENIED;

C. The Fee Motion (ECF No. 13) is MOOT to the extent Hamer seeks to create a

record of the April Payment. The Fee Motion is DENIED to the extent Hamer requests that the

April Payment satisfy Hamer’s obligation to pay the full amount of the civil filing fee. To the

extent the Fee Motion seeks other relief, the Fee Motion is DENIED;

D. The Motion For A Hearing (ECF No. 15) is DENIED as moot. The Court is

dismissing the Consolidated Complaint with prejudice for failure to state a claim to relief, and the

case will not proceed;

E. This case is DISMISSED in its entirety. The Court recommends that the dismissal

of this case be treated as a strike pursuant to 28 U.S.C. § 1915(g). See Simons, 996 F.3d 350;

F. The Court CERTIFIES that an appeal would not be taken in good faith; and

G. The Court DENIES leave to proceed in forma pauperis on appeal. If Hamer

appeals, he must pay the full $505 appellate filing fee or move for leave to appeal in forma pauperis

with a supporting affidavit in the Sixth Circuit. Fed. R. App. P. 24(a)(5).

IT IS SO ORDERED, this 7th day of December, 2022.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE