United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
pro se, Tommy Kirk Albritton (“Plaintiff”) brings
this civil rights complaint under 42 U.S.C. § 1983,
alleging that he has not been awarded the proper sentencing
credits for his conviction in General Sessions Court [Doc.
2]. Plaintiff's application to proceed in forma
pauperis is GRANTED [Doc. 1], and Plaintiff need not pay
an up-front filing fee. Nevertheless, the Prison Litigation
Reform Act of 1995 (PLRA), makes a prisoner, such as
Plaintiff, responsible for paying the filing fee, 28 U.S.C.
§ 1915(b)(1), and he therefore is ASSESSED the full
filing fee of three hundred, fifty dollars ($350).
custodian of Plaintiff's inmate trust account at the
institution wherein he resides shall submit, as an initial
partial payment, whichever is the greater of: (a) twenty
percent (20%) of the average monthly deposits to
Plaintiff's inmate trust account; or (b) twenty percent
(20%) of the average monthly balance in his inmate trust
account for the six-month period preceding the filing of the
complaint. 28 U.S.C. § 1915(b)(1)(A) and (B).
Thereafter, the trust account custodian shall submit twenty
percent (20%) of Plaintiff's preceding monthly income (or
income credited to his trust account for the preceding
month), but only when such monthly income exceeds $10.00,
until the full filing fee of $350.00 has been paid to the
Clerk's Office. 28 U.S.C. § 1915(b)(2); McGore
v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007).
should be sent to: The Clerk, United States District Court,
220 West Depot Street, Ste. 200, Greeneville, TN 37743. To
ensure compliance with the fee-collection procedure, the
Clerk is DIRECTED to mail a copy of this Memorandum and Order
to the custodian of inmate accounts at the Hawkins County
jail. The Clerk is also DIRECTED to furnish a copy of this
Order to the Court's financial deputy. This Order shall
be placed in Plaintiff's institutional file and follow
him if he is transferred to another correctional facility.
SCREENING and LEGAL STANDARDS
Court must now screen the complaint to determine whether it
states a claim entitling Plaintiff to relief or is frivolous
or malicious or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2) and
§ 1915A; see also McGore, 114 F.3d at 607 In
performing this task, however, the Court recognizes that pro
se pleadings filed in civil rights cases are construed
indulgently and held to a less stringent standard than formal
pleadings drafted by lawyers. McNeil v. United
States, 508 U.S. 106, 113 (1993); Haines v.
Kerner, 404 U.S. 519, 520 (1972). Even so, the complaint
must be sufficient “to state a claim to relief that is
plausible on its face, ” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), which simply means
the factual content pled by a plaintiff must permit a court
“to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). The standard articulated
in Twombly and Iqbal “governs
dismissals for failure state a claim under [§§
1915A(b)(1) and 1915(e)(2)(B)(ii)] because the relevant
statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010).
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. See Black v.
Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir.
1998); 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
Court examines the claims under these guidelines.
LAW and ANALYSIS
asserts that he entered the Hawkins County jail on May 18,
2015, to begin serving a sentence of 768 days, set to be
served at 75%, and that his mittimus stated that he was to be
given credit for time served. Judge Ross Todd, who presumably
is the judge in the Hawkins County General Sessions Court,
explained to Plaintiff on June 17, 2015, that he was to be
given credit on his General Sessions conviction for time he
had served, even though he had been serving a state sentence
at that time. Plaintiff contends that, with the 227 days'
credit towards his sentence which Judge Ross agreed that he
should be awarded, he was due for release on May 9, 2016. Yet
he was not released on that date and he remains in jail.
Plaintiff has filed two requests to the timekeeper, but he
still has not been released.
asks the Court to obtain and examine the recording from his
June 17, 2015 court proceedings. Plaintiff would then like to
file a lawsuit for the time he has been kept in jail past his
true sentence expiration date. Plaintiff also requests the
Court to arrange for either a personal visit or a phone call
from a lawyer to discuss his predicament.
well settled law that the sole federal remedy for claims
relating directly to the fact and duration of an
individual's physical confinement lies in filing a
petition for habeas corpus relief under 28 U.S.C. §
2254. Preiser v. Rodriguez, 411 U.S. 475, 487
(1973). Plaintiff's request that the Court explore the
merits of his claimed sentencing glitch relates directly to
the duration of his confinement because a favorable finding
would shorten the duration of his confinement. Because this
kind of claim cannot be entertained in a civil action,
see Heck v. Humphrey, 512 U.S. 477, 486 (1994)
(referring to “the hoary principle that civil tort
actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments”), and
because such claims must be brought in a habeas corpus
application, all such claims fail to state a claim entitling
Plaintiff to relief in this civil suit.
Court would add that a habeas corpus action will lie where a
prisoner claims that he has been denied sentencing credits he
has earned under a state's sentencing reduction programs
and requests receipt of those credits. Greene v. Tenn.
Dep't of Corr., 265 F.3d 369 (6th Cir. 2001).
However, habeas corpus relief will not be granted unless a
petitioner has exhausted his available state court remedies,
or available state corrective process is lacking, or resort
to such process would be ...