Collier v. Mitchell

Full title: LANCE I. COLLIER, Plaintiff, v. OFFICER MITCHELL, MURFREESBORO POLICE…

Court: United States District Court, M.D. Tennessee, Nashville Division

Date published: Dec 13, 2006

No. 3 06 1183 (M.D. Tenn. Dec. 13, 2006)

Opinion

No. 3 06 1183.

December 13, 2006

MEMORANDUM

TODD CAMPBELL, District Judge

The plaintiff, proceeding pro se and in forma pauperis, is a prisoner in the Rutherford County Adult Detention Center in Murfreesboro, Tennessee. He brings this action under 42 U.S.C. § 1983 naming the following defendants: 1) Officer f/n/u Mitchell of the Murfreesboro Police Department; and 2) Ken Tucker of the RCADC medical department.

The plaintiff alleges that defendant Mitchell subjected him to unreasonable search and seizure on August 18, 2006. (Complaint, ¶ IV, p. 5) Specifically, the plaintiff alleges that, as he was about to go into a family member's house, defendant Mitchell stopped in front of the house and instructed the plaintiff to get back into his car. (Complaint, ¶ IV, p. 5) When the plaintiff did not follow defendant Mitchell's instructions, defendant Mitchell allegedly pulled the plaintiff's arms up behind him and forced him onto the hood of the police cruiser. (Complaint, ¶ IV, p. 5) Defendant Mitchell allegedly injured the plaintiff's neck and back in the process.¹ (Complaint, ¶ IV, p. 5)

1 When "an excessive force claim arises in the context of an arrest . . . of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment. . . ." Graham v. Conner, 490 U.S. 386, 393 (1989); see Darrah v. City of Oak Park, 255 F.3d 301, 305 (6^th Cir. 2001).

The plaintiff asserts that more officers soon arrived, searched his car, but found nothing. (Complaint, ¶ IV, p. 5) The plaintiff claims that defendant Mitchell then handcuffed him, looked into the plaintiff's car, and even though the other officers had found nothing, defendant Mitchell found something — unspecified — that led to the plaintiff's arrest. (Complaint, ¶ IV, p. 5) The plaintiff asserts that defendant Mitchell charged him with driving on a revoked license, resisting arrest, and several drug-related offenses.²,³ (Complaint, ¶ IV, p. 5)

2 It appears from the plaintiff's description of the charges that defendant Mitchell found drug-related items in the plaintiff's car.

3 It appears from the record that the plaintiff has a trial date on December 18, 2006. (Complaint, Note dtd. Nov. 8, 2006 penned at the bottom of the Attach. Inmate Information Request Slip submitted Oct. 22, 1006)

The plaintiff does not mention defendant Tucker in the statement of the facts. Moreover, apart from naming him as a defendant, the plaintiff does not mention defendant Tucker anywhere in the complaint or in any of the several documents attached to the complaint.

To state a claim under § 1983, the plaintiff must allege and show: 1) that he was deprived of a right secured by the Constitution or laws of the United States; and 2) that the deprivation was caused by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled in part by Daniels v. Williams, 474 U.S. 327, 330 (1986)); Flagg Bros. v. Brooks, 436 U.S. 149, 155-56 (1978); Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6^th Cir. 1998). Both elements of this two-part test must be met to support a claim under § 1983. See Christy v. Randlett, 932 F.2d 502, 504 (6^th Cir. 1991).

Under the Prison Litigation Reform Act (PLRA), the Court is required to dismiss a prisoner-plaintiff's complaint if it is determined to be frivolous, malicious, or if it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915A(b). A complaint is frivolous and warrants dismissal when the claims "lack an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Claim lack an arguable basis in law or fact if they contain factual allegations that are fantastic or delusional, or if it is based on legal theories that are indisputably meritless. Id. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6^th Cir. 2000); see also Lawler v. Marshall, 898 F.2d 1196, 1198-99 (6^th Cir. 1990). Although pro se complaints are to be construed liberally by the courts, see Boag v. MacDougall, 454 U.S. 364, 365 (1982), under the PLRA, "courts have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal," McGore v. Wrigglesworth, 114 F.3d 601, 612 (6^th Cir. 1997).

Defendant Mitchell

The plaintiff is challenging the constitutionality of the procedures allegedly employed by defendant Mitchell in affecting his arrest.

The law is well established that a prisoner does not state a cognizable claim under § 1983 where a ruling on his claim would imply the invalidity of his conviction and/or confinement, unless and until the basis for that conviction and/or confinement has been favorably terminated, i.e., reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ruff v. Runyon, 258 F.3d 498, 502 (6^th Cir. 2001). Heck extends to suits filed by pretrial detainees. Adams v. Morris, 90 Fed.Appx. 856, 658 (6^th Cir. 2004); Thomas v. Pugh, 9 Fed.Appx. 370, 371 (6^th Cir. 2001) (both citing Alvarez-Machain v. United States, 107 F.3d 696, 700-01 (9^th Cir. 1996); Hamilton v. Lyons, 74 F.3d 99, 102-03 (5^th Cir. 1996)).

If the Court were to rule in the plaintiff's favor on his unreasonable search and seizure claim against defendant Mitchell, such a determination would likely have the effect of calling the circumstances of his arrest into question which, in turn, would likely call into question the validity of the plaintiff's conviction, if he is convicted. Because the charges that led to the plaintiff's arrest have not been favorably terminated, the plaintiff's claims are barred by Heck.

For the reasons explained above, the plaintiff's claim against defendant Mitchell will be dismissed for failure to state a claim on which relief may be granted.

Defendant Tucker

It appears from the record before the Court that the plaintiff made no effort to exhaust his administrative remedies with respect to defendant Tucker. More particularly, in that part of the complaint that addresses exhaustion, the plaintiff makes no reference to defendant Tucker. Moreover, defendant tucker is not mentioned in any of the copies of the grievances that the plaintiff has provided.

Although this action normally would be dismissed at this juncture for failure to exhaust, when a claim satisfies the provisions of 42 U.S.C. § 1915(e)(2), it may be dismissed on the merits without requiring exhaustion if the claim is frivolous, malicious, or fails to state a claim on which relief may be granted. See 42 U.S.C. § 1997e(c)(2);); Brown v. Toombs, 139 F.3d 1102, 1103-1104 (6^th Cir. 1998).

As previously noted, apart from naming him as a defendant, the plaintiff does not mention defendant Tucker in the statement of the facts, anywhere else in the complaint, or in any of the documents attached thereto. Therefore, it cannot be determined who defendant Tucker is, or what, if anything, he is supposed to have done or not done. Consequently, the plaintiff has failed to satisfy either part of the two-part test under Parratt, supra at p. 2.

As reasoned above, the plaintiff's claim against defendant Tucker lacks an arguable basis in law or fact. Therefore, this claim will be dismissed as frivolous.

An appropriate Order will be entered.

ORDER

The Court has before it a pro se prisoner complaint brought under 42 U.S.C. § 1983. The plaintiff also has submitted an application to proceed in forma pauperis.

The plaintiff is a prisoner in the Rutherford County Adult Detention Center in Murfreesboro, Tennessee. It appears from his application that he lacks sufficient financial resources to pay the filing fee. Therefore, pursuant to 28 U.S.C. § 1915(b)(4), the Clerk will file the complaint in forma pauperis. 28 U.S.C. § 1915(a).

The plaintiff is herewith assessed the civil filing fee of three hundred fifty dollars ($350.00). Pursuant to 28 U.S.C. §§ 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust fund account at the institution where he now resides is directed to submit to the Clerk of Court, as an initial payment, whichever is the greater of:

(a) twenty percent (20%) of the average monthly deposits to the plaintiff's inmate trust fund account; or

(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust fund account for the prior six (6) months.

Thereafter, the custodian shall submit twenty percent (20%) of the plaintiff's preceding monthly income, or income credited to the plaintiff's inmate trust fund account for the preceding month, but only when his monthly income exceeds ten dollars ($10.00). Payments shall continue until the filing fee of three hundred fifty dollars ($350.00) has been paid in full to the Clerk of Court as prescribed by 28 U.S.C. § 1914(a). 28 U.S.C. § 1915(b)(2).

As provided in the Memorandum entered contemporaneously herewith, the plaintiff's complaint is hereby DISMISSED in part for being frivolous and in part for failure to state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) — (B)(ii); 1915A(b)(1). Because an appeal from the judgment rendered herein would not be taken in good faith, the plaintiff is NOT certified to pursue an appeal from this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 444-46 (1962). Nevertheless, should the plaintiff decide to file a notice of appeal, he either must pay the Clerk of Court the full appellate filing fee of four hundred fifty-five dollars ($455.00), or submit a new application to proceed in forma pauperis with a certified copy of his inmate trust account statement for the six (6) month period preceding the filing of his notice of appeal. 28 U.S.C. §§ 1915(a)(1) and (a)(2); McGore v. Wrigglesworth, 114 F.3d 601, 605 (6^th Cir. 1997).

The Clerk is directed to send a copy of this Order to the Sheriff of Rutherford County to ensure that the custodian of the plaintiff's inmate trust fund account complies with the portion of the Prison Litigation Reform Act that pertains to the payment of filing fees.

Entry of this Order shall constitute the judgment in this action.

It is so Ordered.