United States District Court, W.D. Tennessee
ORDER OF DISMISSAL ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JAMES D. TODD, District Judge.
On June 25, 2013, Plaintiff Pha'Shawn Moore, an inmate at the Shelby County Correctional Complex ("SCCC") in Memphis, filed a pro se complaint pursuant to 42 U.S.C. § 1983, accompanied by a motion seeking leave to proceed in forma pauperis . (ECF Nos. 1 & 2.) The Court issued an order on August 7, 2013, that granted leave to proceed in forma pauperis . (ECF No. 5.) The Clerk shall record the defendant as Shelby County.
Plaintiff Moore alleges:
I arrived here at the Penal Farm at the end of April 2013 and I recognize that it wasn't no speaker voice box in my cell. Also no window to see out of. I also have high blood pressure and I'm a border-line diabetic. I also have seizures and black-outs. It is my right to have a speaker voice-box to contact assistance to officer in control booth. It's my right to be able to see out my window. This wasn't in my contract at all. By having no voice-box, no window to see out of, and no air is totally violating my rights. (Amendment 8 - Cruel and Unusual Punishment Ratified 12/15/1791 Excessive bail shall not be required, nor excessive fines imposed, no cruel and unusual punishment inflicted.[)]
(ECF 1 at 2.)
The Court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if the action-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2).
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, 667-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009), and in Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-57, 127 S.Ct. 1955, 1964-66, 167 L.Ed.2d 929 (2007), are applied. Hill v. Lappin , 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin , 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal , 556 U.S. at 681, 129 S.Ct. at 1951) (alteration in original). "[P]leadings that... are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. at 681, 129 S.Ct. at 1950; see also Twombly , 550 U.S. at 555 n.3, 127 S.Ct. at 1964-65 n.3 ("Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice' of the nature of the claim, but also grounds' on which the claim rests.").
"A complaint can be frivolous either factually or legally. See Neitzke [v. Williams], 490 U.S. [319, ] 325, 109 S.Ct. at 1827 [(1989)]. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted. See id. at 328-29, 109 S.Ct. 1827." Hill , 630 F.3d at 470.
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give "judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal , 129 S.Ct. at 1949-50, a judge does ...