United States District Court, E.D. Tennessee
November 17, 2014
MICHAEL A. OGLE, Plaintiff,
UNITED STATES OF AMERICA,, et al., Defendants
Michael A Ogle, Plaintiff, Pro se, Knoxville, TN.
MEMORANDUM AND ORDER
Thomas A. Varlan, CHIEF UNITED STATES DISTRICT JUDGE.
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, the plaintiff is allowed to proceed in this action without the prepayment of costs or fees or security therefor. However, for the reasons stated below, process shall not issue and this action is DISMISSED.
In order to state a claim under 42 U.S.C. § 1983, plaintiff must establish that he was deprived of a federal right by a person acting under color of state law. Black v. Barberton Citizens Hospital, 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brien v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). See also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (" Section 1983 does not itself create any constitutional rights; it creates a right of action for the vindication of constitutional guarantees found elsewhere.").
Under the Prison Litigation Reform Act (PLRA), district courts must screen prisoner complaints and sua sponte dismiss those that are frivolous or malicious, fail to state a claim for relief, or are against a defendant who is immune. See, e.g., Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999).
Responding to a perceived deluge of frivolous lawsuits, and, in particular, frivolous prisoner suits, Congress directed the federal courts to review or " screen" certain complaints sua sponte and to dismiss those that failed to state a claim upon which relief could be granted, that sought monetary relief from a defendant immune from such relief, or that were frivolous or malicious.
Id. at 1015-16 (6th Cir. 1999) (citing 28 U.S.C. § § 1915(e) (2) and 1915A).
Plaintiff, who is in federal custody, is confined in the Blount County Detention Facility. In a disjoined complaint, he alleges he has been denied use of the law library. The Court notes at the outset that the United States, which has been named as a defendant, is immune from suit. " It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." Munaco v. United States, 522 F.3d 651, 652-53 (6th Cir. 2008) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). Thus, " [a]ny claim for which sovereign immunity has not been waived must be dismissed for lack of jurisdiction." Orff v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004).
" Prisoners have a right of access to the courts." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (internal citation omitted). Accordingly, " [p]risoners are to be supplied some means of obtaining legal assistance, be it in the form of adequate prison libraries, 'jailhouse lawyers, ' or outside legal assistance." Walker v. Mintzes, 771 F.2d 920, 931 (6th Cir. 1985). Restricted access to a prison or jail law library, however, does not necessarily deny access to the courts. The question is whether the prisoner was " actually impeded in his access to the courts." Id. at 932. Thus, in order to state a claim for denial of use of the law library, plaintiff must first allege an actual injury. See Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
An inmate cannot show actual injury " simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Id. at 351. Rather, the inmate " must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. Id. In addition, once counsel has been appointed, the authorities have fulfilled their constitutional obligation to provide full access to the courts. See Martucci v. Johnson, 944 F.2d 291, 295 (6th Cir. 1991).
Plaintiff alleges that when he asked for case law to help him in his case against the government, he was told he had to go through the U.S. Marshals Service. According to plaintiff, he was representing himself and needed the case law. Presumably, plaintiff is referring to the federal charge of attempted escape from federal custody, for which he was recently convicted and awaits sentencing. United States v. Michael A. Ogle, Criminal Action No. 3:11-cr-35 (E.D. Tenn. August 20, 2014) (jury verdict).
While plaintiff alleges that he was denied needed case law, he does not state any facts to show how he was injured by the alleged denial of the case law. 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); Smith v. Rose, 760 F.2d 102 (6th Cir. 1985). " This Court has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right." Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008). In addition, the Court notes that in his criminal case, petitioner, while representing himself, was also assisted by appointed elbow counsel.
Although this Court is mindful that a pro se complaint is to be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (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. See Bell A. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory") (internal quotation marks omitted; emphasis and omission in original). Therefore, this action is DISMISSED sua sponte, as frivolous and for failure to state a claim upon which relief can be granted under § 1983. All pending motions are DENIED as MOOT. 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 Blount County Detention Facility, 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 Blount 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.
For the reasons stated in the Court's Memorandum and Order, the Court ORDERS that this action is DISMISSED 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.