United States District Court, M.D. Tennessee, Nashville Division
A. Trauger United States District Judge
Mardoche Olivier, a resident of Clarksville, Tennessee,
brings this pro se, in forma pauperis action against
the United States Government, alleging violations of the
Plaintiff's civil rights. (Docket No. 1). The Plaintiff
seeks $40, 000 in damages, attorney fees, and injunctive
relief. (Id. at p. 3).
Required Screening of the Complaint
Plaintiff is proceeding as a pauper in this action;
therefore, the Court must conduct an initial review of the
complaint under 28 U.S.C. § 1915(e)(2)(B) and dismiss it
or any portion of it that is frivolous or malicious, fails to
state a claim for which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 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)”).
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);
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”); cf. Pliler v. Ford, 542 U.S. 225, 231
(2004) (“District judges have no obligation to act as
counsel or paralegal to pro se litigants.”); Young
Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir.
2011) (“[W]e decline to affirmatively require courts to
ferret out the strongest cause of action on behalf of pro se
litigants. Not only would that duty be overly burdensome, it
would transform the courts from neutral arbiters of disputes
into advocates for a particular party. While courts are
properly charged with protecting the rights of all who come
before it, that responsibility does not encompass advising
litigants as to what legal theories they should
to the complaint, the Honorable Kevin H. Sharp, a member of
this Court, violated the Plaintiff's rights when Judge
Sharp dismissed sua sponte a previous pro
se action filed by the Plaintiff. In the previous case,
Judge Sharp determined that, under the Rooker-Feldman
doctrine, the Court lacked subject matter jurisdiction over
the Plaintiff's claim because it arose from a state court
proceeding that apparently did not end in the Plaintiff's
favor. See Case No. 3:16-cv-3305 (Order, Docket No.
3). The Plaintiff is filing this action against the
“U.S. Gov.” as Judge Sharp's
“employer.” (Docket No. 1 at pp. 2-3).
order to state a claim under 42 U.S.C. § 1983, the
Plaintiff must plead and prove that the Defendant, while
acting under color of state law, deprived him of some right
or privilege secured by the Constitution or laws of the
United States. Parratt v. Taylor, 451 U.S. 527, 535
the Court finds that Judge Sharp was not acting “under
color of state law” when he disposed of the
Plaintiff's previous lawsuit. See Mardoche Olivier v.
U.S. Government, No. 3:17-cv-00059 (M.D. Tenn. Jan. 31,
2017)(Trauger, J.)(similarly finding that Judge Crenshaw was
not acting under color of state law when he dismissed a
different federal lawsuit filed by the same Plaintiff). In
the absence of such a showing, the Plaintiff has failed to
state a claim upon which relief can be granted. In any event,
the Plaintiff is not suing the alleged tortfeasor here.
Rather, the Plaintiff is attempting to place liability on the
alleged tortfeasor's employer. The law is settled that
respondeat superior is not recognized as an
acceptable theory of liability under § 1983. See
e.g., Polk County v. Dodson, 454 U.S. 312, 325 (1981);
Monell v. Dept. of Social Servs. of The City of New York,
et al., 436 U.S. 658, 659, 691-95 (1978); Siggers v.
Campbell, 652 F.3d 681, 695 (6th Cir. 2011) (citing
Taylor v. Michigan Dep't of Corrections, 69 F.3d
76, 80-81 (6th Cir.1995)).
Court notes that the Plaintiff essentially takes issue with
the fact that Judge Sharp dismissed the Plaintiff's
previous case without first providing the Plaintiff with an
opportunity to amend his complaint in an attempt to cure any
deficiencies. (Docket No. 1 at p. 2). However, 28 U.S.C.
§ 1915(e)(2)(B) requires the district court to dismiss
an entire case or any portion of it that is frivolous or
malicious, fails to state a claim for which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. Moreover, the Plaintiff never sought
to amend his complaint in the prior case and, to date, has
not sought that opportunity. Even after the dismissal of his
case, the Plaintiff filed a Notice of Appeal rather than a
motion to amend or a motion to reconsider. See
3:16-cv-03305 (Notice of Appeal, Docket No. 5).
conclusion, the Court finds that the complaint fails to state
a claim upon which relief can be granted. This action,
therefore, will be ...