United States District Court, W.D. Tennessee, Western Division
ANTHONY D. JOHNSON Plaintiff,
CAROLYN JORDAN, Defendants.
ORDER OF PARTIAL DISMISSAL ORDER TRANSFERRING
REMAINING CLAIMS ORDER CERTIFYING AN APPEAL WOULD NOT BE
TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE
FILING FEE ON PARTIAL DISMISSA
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
April 21, 2016, Plaintiff Anthony D. Johnson, who is
presently incarcerated at FCI Gilmer in Glenville, West
Virginia, filed a Pro Se Complaint pursuant to 42 U.S.C.
§ 1983 concerning his previous confinement at the
Riverbend Maximum Security Institution (“RMSI”)
in Nashville, Tennessee. (ECF No. 1.) The Court granted
Johnson leave to proceed in forma pauperis and
assessed the $350 civil filing fee pursuant to 28 U.S.C.
§§ 1915(a)-(b). (ECF No. 5.) Plaintiff sues the
RMSI Assistant Warden Carolyn Jordan, RMSI Unit Manager C.
Thomas, RMSI Classification Robert Bates, RMSI Unit 4
Counselor John Doe, RMSI Acting Chief Counselor Warren Tate,
and RMSI Records Clerk Tim Terry.
alleges that he was serving a six-year sentence for criminal
attempted aggravated robbery and robbery. Johnson's
sentence was imposed on December 17, 2010. (Compl. at 4, ECF
No. 1.) Johnson contends that during his incarceration at
RMSI and before the expiration of his sentence, prison
officials miscalculated his release date. (Id.)
Although Johnson brought the error to the attention of all
the listed staff to correct the error, Johnson alleges that
they failed to provide effective assistance and failed to
investigate his complaint, which resulted in Johnson's
continued incarceration. (Id.) Johnson requests that
the Court credit each excessive day he spent in state custody
towards his federal sentence. Johnson also prays for
compensation for each day that his liberty was restrained.
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
assessing whether the Pro Se Complaint in this case states a
claim on which relief may be granted, the Court applies the
standards under Federal Rule of Civil Procedure 12(b)(6), as
stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009), and in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-57 (2007). Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010). “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.”).
complaint can be frivolous either factually or legally. Any
complaint that is legally frivolous would ipso facto
fail to state a claim upon which relief can be
granted.” Hill, 630 F.3d at 470 (citing
Neitzke v. Williams, 490 U.S. 319, 325, 328-29
Whether a complaint is factually frivolous under §§
1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from
whether it fails to state a claim for relief. Statutes
allowing a complaint to be dismissed as frivolous give
“judges not only the authority to dismiss a claim based
on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Neitzke,
490 U.S. at 327, 109 S.Ct. 1827 (interpreting 28 U.S.C.
§ 1915). Unlike a dismissal for failure to state a
claim, where a judge must accept all factual allegations as
true, Iqbal, 129 S.Ct. at 1949-50, a judge does not
have to accept “fantastic or delusional” factual
allegations as true in prisoner complaints that are reviewed
for frivolousness. Neitzke, 490 U.S. at 327-28, 109
Id. at 471.
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 (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro
se litigants and prisoners 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, No. 09-2259, 2011 WL
285251, at *5 (6th Cir. Jan. 31, 2011) (affirming dismissal
of pro se complaint for failure to comply with
“unique pleading requirements” and stating
“a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleading'”)
(quoting Clark v. Nat'l Travelers Life Ins. Co.,
518 F.2d 1167, 1169 (6th Cir. 1975)) (alteration in
original); 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 ...