United States District Court, W.D. Tennessee, Eastern Division
ORDER MODIFYING REPORT AND RECOMMENDATION, DISMISSING
COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD
FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
D. TODD UNITED STATES DISTRICT JUDGE.
Dannie Wayne Weaver, a resident of Henderson, Tennessee,
filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 on May 24, 2016, accompanied by a motion to
proceed in forma pauperis. (ECF Nos. 1 & 2.)
United States Magistrate Judge Edward G. Bryant subsequently
granted leave to proceed in forma pauperis. (ECF No.
5.) On November 15, 2016, Magistrate Judge Bryant issued a
Report and Recommendation (“R&R”) in which he
recommended dismissing the case sua sponte. (ECF No.
6.) Objections to the R&R were due on or before December
2, 2016. See Fed. R. Civ. P. 72(b); see
also Fed. R. Civ. P. 6(d). Although Plaintiff filed a
motion for appointment of counsel on November 28, 2016 (ECF
No. 7), he has filed no objections to the R&R.
has sued the Tennessee Highway Patrol (“THP”) and
THP Officer Jerome Edwards; the Public Defender's Office
for the 26th Judicial District of Tennessee and Assistant
Public Defender Hewitt Chatman; the 26th Judicial District and
Division III Circuit Court Judge Kyle C. Atkins; and the
Henderson County Criminal Justice Complex
(“Jail”). Plaintiff alleges that he was stopped
by Defendant Edwards on Highway 22 in Lexington, Tennessee,
for a seatbelt violation even though Plaintiff was wearing
his seatbelt. Plaintiff further alleges that Defendant
Chatman did not adequately defend him in Circuit Court and
that Defendant Atkins revoked Plaintiff's bond without
cause. Consequently, Plaintiff was incarcerated at the Jail,
where he alleges he was not given his heart medication,
causing him to have a major heart attack and suffer cardiac
arrest. Plaintiff contends the actions of all the Defendants
contributed to his heart attack and cardiac arrest, and he
seeks unspecified compensatory damages. (ECF No. 1 at 2-3.)
In the R&R, Magistrate Judge Bryant determined that
Plaintiff's complaint does not state a claim against any
of the Defendants under 42 U.S.C. § 1983. However, he
recommended that Plaintiff be allowed an opportunity to file
an amended complaint with regard to the allegations
concerning his heart attack. As to the claims against the
State Defendants,  which are considered claims against the
State of Tennessee, the Magistrate Judge correctly determined
the State is not a “person” amenable to suit
under § 1983. See Will v. Mich. Dep't of State
Police, 491 U.S. 58, 64 (1989). With regard to the claims
againt the Jail, which are considered claims against
Henderson County, Plaintiff has failed to allege that his
injury was caused by an unconstitutional County policy or
custom. See Monell v. Dep't. of Soc. Servs., 436
U.S. 658, 691 (1978); Alkire v. Irving, 330 F.3d
802, 815 (6th Cir. 2003) (“[t]o demonstrate municipal
liability [Alkire] must (1) identify the municipal policy or
custom, (2) connect the policy to the municipality, and (3)
show that his particular injury was incurred due to execution
of that policy.”).
Judge Bryant further determined that the claims against
Defendant Atkins in his individual capacity are barred by
absolute judicial immunity and that the claims against
Defendant Chatman are not valid because attorneys, even
public defenders, do not act under color of state law when
representing a defendant in criminal proceedings.
the Magistrate Judge found that Plaintiff's claims
against Defendant Edwards in his individual capacity are
barred by the holding of Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). Although Plaintiff does not expressly
state that he was found guilty of a seatbelt violation, the
conviction can be presumed from his allegation that Defendant
Atkins revoked a prior bond as a result. Thus, unless the
conviction is set aside, he has no claim against Defendant
Edwards arising out of that traffic offense.
Plaintiff's claims against Defendant Edwards are not
barred by the specific holding of Heck, he still
fails to state a claim for either false arrest or malicious
prosecution under the Fourth Amendment. The only allegation
against Defendant Edwards is that he stopped Plaintiff for a
seatbelt violation even though Plaintiff was actually wearing
his seatbelt. Plaintiff does not adequately allege, however,
that Edwards lacked probable cause for the charge. He also
does not allege that the outcome was favorable to him,
i.e., that the seatbelt charge was dismissed.
Court hereby ADOPTS the R&R insofar as the Magistrate
Judge determined that the complaint fails to state a claim on
which relief may be granted. However, the Court declines to
allow Plaintiff to file an amended complaint in this case to
add new defendants or claims concerning his heart attack.
Plaintiff has filed another case, Weaver v. Henderson Co.
Criminal Justice Ctr., No. 16-1134-JDT-egb (W.D. Tenn.
filed June 1, 2016), in which he raises other medical claims.
In order to avoid having similar claims by Plaintiff in two
different cases, Plaintiff will be given an opportunity to
raise all of his medical claims in case number 16-1134.
this case is DISMISSED for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). The motion for
appointment of counsel is DENIED as moot.
Court must also consider whether Plaintiff should be allowed
to appeal this decision in forma pauperis, should he
seek to do so. Pursuant to the Federal Rules of Appellate
Procedure, a non-prisoner desiring to proceed on appeal
in forma pauperis must obtain pauper status under
Federal Rule of Appellate Procedure 24(a). See Callihan
v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999).
However, Rule 24(a)(3) provides that if a party was permitted
to proceed in forma pauperis in the district court,
he may also proceed on appeal in forma pauperis
without further authorization unless the district court
“certifies that the appeal is not taken in good faith
or finds that the party is not otherwise entitled to proceed
in forma pauperis.” If the district court denies pauper
status, the party may file a motion to proceed in forma
pauperis in the Court of Appeals. Fed. R. App. P.
good faith standard is an objective one. Coppedge v.
United States, 369 U.S. 438, 445 (1962). The test for
whether an appeal is taken in good faith is whether the
litigant seeks appellate review of any issue that is not
frivolous. Id. The same considerations that lead the
Court to dismiss this case for failure to state a claim also
compel the conclusion that an appeal would not be taken in
CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter by Plaintiff is not
taken in good faith. Leave to appeal in forma
pauperis is, therefore, DENIED. Accordingly, if
Plaintiff files a notice of appeal, he must also pay the full
$505 appellate filing fee to this Court or file a motion to
proceed in forma pauperis and supporting affidavit
directly in the Sixth Circuit Court of Appeals.
Clerk is directed to prepare a judgment.