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McElyea v. Kerns

United States District Court, M.D. Tennessee, Nashville Division

March 1, 2017

CHARLES H. McELYEA, JR., Plaintiff,
v.
ALLEN KERNS et al., Defendants.

          MEMORANDUM OPINION

          ALETAA. TRAUGER, UNITED STATES DISTRICT JUDGE

         Plaintiff Charles H. McElyea, proceeding pro se, has filed a civil complaint against Defendants Judge Allen D. Kerns of the Chancery Court for Dickson County, Tennessee and Assistant District Attorney Steven Powers; both of the defendants are sued in their individual and official capacities. (ECF No. 1.) Additionally, the plaintiff has applied to proceed in forma pauperis. (ECF No. 2)

         Because it is apparent from the plaintiff's application that he lacks sufficient resources from which to pay the required filing fee, his application to proceed in forma pauperis (ECF No. 2) will be granted.

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47 (Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). The Court must construe a pro se plaintiff's complaint liberally, Boag v. McDaniel, 454 U.S. 364, 365 (1982), and accept the plaintiff's allegations as true unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         I. FACTUAL ALLEGATIONS

         The plaintiff alleges that on September 19, 2016 he was before Judge Kerns in connection with a petition for civil contempt for failure to pay child support in the matter of State of Tennessee ex rel. Mitzi Gay McElyea v. Charles H. McElyea, Case No. 4886-97. Assistant District Attorney (ADA) Powers was present at the hearing, apparently on behalf of the state. At the hearing, Judge Kerns ordered the plaintiff jailed, although it appears that immediately after he was sent to jail, he was “furlough[ed] today . . . at 8 p.m. until 1-23-17 @ 8 am.” (ECF No. 1 at Page ID# 4.) The plaintiff alleges that Judge Kerns and ADA Powers violated his right to due process because he did not have an attorney at the hearing. As relief, the plaintiff seeks an injunction that the defendant “stop all actions against [him]” and compensatory and punitive damages. (ECF No. 1 at Page ID# 3.)

         II. STANDARD OF REVIEW

         If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In assessing whether the complaint in this case states a claim on which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)] because the relevant statutory language tracks the language in Rule 12(b)(6)”). “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) (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 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.”).

         “Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal quotation marks and citation omitted). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The court is not required to create a claim for the plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975); see also Brown v. Matauszak, 415 F.App'x 608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading”) (internal quotation marks and citation omitted); Payne v. Sec'y of Treas., 73 F.App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's claim for her”). To demand otherwise would require the “courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Finally, the court need not sift through exhibits attached to the plaintiff's complaint in order to determine what, if any, basis exists for the plaintiff's claims against the defendants. See Jackson v. Lawrence Corr. Ctr. Heatlh Care, No. 15-cv-00082-JPG, 2015 WL 603853, at *2 (S.D. Ill. Feb. 12, 2015).

         III. DISCUSSION

         A. Judge Kerns

         The plaintiff claims that when he appeared before Judge Kerns in connection with a civil contempt case for failure to pay child support, Judge Kerns ordered that the plaintiff be jailed. The plaintiff asserts that, by doing so, Judge Kerns violated his Fourteenth Amendment due process rights.

         Generally, a judge is absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (recognizing that “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.”) (internal quotations omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in only two instances. First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484 U.S. 219, 229 (1988) (noting that immunity is grounded in “the nature of the function performed, not the identity of the actor who performed it”). Second, a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Mireles, 502 U.S. at 12.

         The plaintiff's allegations fail to implicate either of the exceptions to judicial immunity. There is no doubt that conducting a civil contempt hearing was a judicial act, and the plaintiff does not suggest that Judge Kerns was acting without jurisdiction to do so. ...


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