United States District Court, W.D. Tennessee, Western Division
ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
JAMES D. TODD, District Judge.
On February 12, 2015, the Plaintiff, Carlos Vester, RNI number 275525, an inmate at the Shelby County Correctional Center ("SCCC") in Memphis, Tennessee, 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.) In response to the Court's order (ECF No. 4), Plaintiff filed another in forma pauperis affidavit on March 2, 2015, along with a note explaining that he was unable to obtain a copy of his inmate trust fund account statement (ECF No. 5). In an order issued on March 4, 2015, the Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 6.) The Clerk shall record the Defendant as Shelby County.
The factual allegations of the complaint are as follows:
I came out here on a one (1) year sentence, and I was eligible for probation on Oct 27, 2014, and I asked the counselor Ms. Sims why I have not gone before the probation board on a yr (1) and 30% (automatic probation)? Ms. Sims said I had to go [before] the parole board, then Ms. Sims said they had released me to [sic] early in Jan 28, 2003. I said no, my sentence was completed, and there never was a warrent [sic] for my arrest, but by law there has to be a warrent [sic] from a judge. Then she did not reply. My sentence was suspended for a time cut, and I was incarcerated from Nov 2002, to Jan 28, 2003. Then I mailed out for a judgement paper to William R Key[, ] clerk for City of Memphis, court clerk, and then Ms. Sims did not acknowledge the judgement papers from the court clerk.
(ECF No. 1 at 2.) Plaintiff seeks his release from custody and money damages. (Id. at 3.)
By way of background, on September 29, 2014, Vester entered a guilty plea in the Shelby County Criminal Court to a charge of aggravated cruelty to animals and was sentenced to a term of imprisonment of one year. Http://jssi.shelbycountytn.gov/ (Indictment No. W1400846). Vester apparently also has partially unexecuted sentences for aggravated kidnapping and, perhaps, for misdemeanor assault resulting in bodily harm. Id. (Indictment Nos. 00 2579, 00 2580). According to the Tennessee Department of Correction, Vester had a parole hearing on February 10, 2015. His application for parole was denied. Vester's sentence will expire on July 5, 2015. See https://apps.tn.gov/foil-app/search.jsp.
The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, 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 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, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (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). "[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 679; see also Twombly, 550 U.S. at 555 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." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). "Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Id. (citing Neitzke, 490 U.S. at 328-29).
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. Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as ...