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Johnson v. Davenport

July 11, 2007

WALTER CLYDE JOHNSON, PLAINTIFF,
v.
SHERIFF DAVID DAVENPORT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

VARLAN/SHIRLEY

MEMORANDUM AND ORDER

The court is in receipt of a pro se prisoner's civil rights complaint under 42 U.S.C. § 1983 and an application to proceed in forma pauperis. It appears from the application that the plaintiff lacks sufficient financial resources to pay the $350.00 filing fee. Accordingly, pursuant to 28 U.S.C. § 1915(b)(4), the Clerk is DIRECTED to file this action without the prepayment of costs or fees or security therefor as of the date the complaint was received. However, for the reasons stated below, process shall not issue and this action is DISMISSED.

Plaintiff is in the Jefferson County Jail. The defendants are Sheriff David Davenport and nineteen other individuals, including Circuit Judges Ben Hooper and Duane Sloan, Assistant Public Defender Ron Smith, and District Attorney General Berkeley Bell. Plaintiff makes the conclusory allegation that the defendants are each responsible for his false imprisonment, in violation of his civil rights. He seeks his immediate release from jail, dismissal of all charges, and compensatory damages in the amount of $10,000,000.00 dollars.

Conclusory allegations, without more, fail to state a claim for which relief can be granted under 42 U.S.C. § 1983. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986); see also Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985) ("'A pleading will not be sufficient to state a cause of action under the Civil Rights Act if its allegations are but conclusions.'") (quoting Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971)).

Plaintiff alleges that he will state his case in full, upon filing his summary argument. Pursuant to the Prison Litigation Reform Act, however, courts no longer have discretion to allow a plaintiff to amend his complaint to avoid dismissal. See McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997); see also Hawkins v. Morse, No. 98-2062, 1999 WL 1023780 *1 (6th Cir. Nov. 4, 1999) ("The PLRA requires district courts to screen cases at the moment of filing. The court is not required to allow a plaintiff to amend his complaint in order to avoid a sua sponte dismissal.") (citations omitted).

Although this court is mindful that a pro se complaint is to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), it is quite clear that the plaintiff has not alleged the deprivation of any constitutionally protected right, privilege or immunity, and, therefore, the court finds his claims to be frivolous under 28 U.S.C. §§ 1915(e) and 1915A. It appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief, Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983), and that plaintiff's claim lacks an arguable basis in law and fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989). Therefore, this action is DISMISSED sua sponte, as frivolous and for failure to state a claim upon which relief can be granted under § 1983. The court CERTIFIES that any appeal from this action would not be taken in good faith and would be totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure.

Because the plaintiff is an inmate in the Jefferson County Jail, he is herewith ASSESSED the civil filing fee of $350.00. Pursuant to 28 U.S.C. § 1915(b)(1)(A) and (B), the custodian of the plaintiff's inmate trust account at the institution where he now resides is directed to submit to the Clerk, U.S. District Court, 800 Market Street, Suite 130, Knoxville, Tennessee 37902, as an initial partial payment, whichever is greater of:

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

(b) twenty percent (20%) of the average monthly balance in the plaintiff's inmate trust account for the six-month period preceding the filing of the complaint.

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

The Clerk is DIRECTED to send a copy of this Memorandum and Order to the Sheriff of Jefferson County, Tennessee, and the county attorney for Jefferson County, Tennessee, to ensure that the custodian of the plaintiff's inmate trust account complies with that portion of the Prison Litigation Reform Act relating to payment of the filing fee. The Clerk is further DIRECTED to forward a copy of this Memorandum and Order to the court's financial deputy.

20070711

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