United States District Court, M.D. Tennessee, Nashville Division
CHARLES H. McELYEA, JR., Plaintiff,
ALLEN KERNS et al., Defendants.
ALETAA. TRAUGER, UNITED STATES DISTRICT JUDGE
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)
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.
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).
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.)
STANDARD OF REVIEW
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.”).
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).
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.
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.
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. ...