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Pratcher v. McCollum

United States District Court, W.D. Tennessee, Western Division

June 6, 2017

WARREN PRATCHER Plaintiff,
v.
LT. MCCOLLUM, et al., Defendant.

          ORDER GRANTING MOTION TO AMEND, DENYING REMAINING MOTIONS, DISMISSING CLAIMS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.

         On September 6, 2016, Plaintiff Warren Pratcher (“Pratcher”), who is currently incarcerated at the Shelby County Criminal Justice Center (“Jail”) in Memphis, Tennessee, filed a Pro Se Complaint pursuant to 42 U.S.C. § 1983 accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court granted leave to proceed in forma pauperis and assessed the civil filing fee pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The Clerk shall record the defendants as Lieutenant (“Lt.”) First Name Unknown (“FNU”) McCollum, Detective (“Det.) William Acred, Det. Jonathan Overly, Sergeant (“Sgt.”) K. Baker, Det. J. Henry, Det. J. Wright, Det. B. Scott, Sgt. R. Simer, Det. FNU Goedecke, Det. D. Knowlton, and Det. FNU Grigsby. Defendants are sued in their individual and official capacities.

         On September 6, 2016, Pratcher filed a motion to appoint counsel. (ECF No. 3.) Pursuant to 28 U.S.C. § 1915(d), the “court may request an attorney to represent any such person unable to employ counsel.” However, “[t]here is no constitutional or . . . statutory right to counsel in federal civil cases.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993), and “§ 1915(d) does not authorize the federal courts to make coercive appointments of counsel” to represent indigent civil litigants, Mallard v. United States Dist. Court, 490 U.S. 296, 310 (1989). Generally, a court will only appoint counsel in exceptional circumstances. Willett v. Wells, 469 F.Supp. 748, 751 (E.D. Tenn. 1977). Although “no comprehensive definition of exceptional circumstances is practical, ” Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982), courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court analyzes the merits of the claims, the complexity of the case, the pro se litigant's prior efforts to retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985).

         As a general rule, counsel should be appointed in civil cases only if a litigant has made “a threshold showing of some likelihood of merit.” Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989). Because Pratcher has not met the threshold showing of likelihood of success, the motion is DENIED.

         BACKGROUND

         Pratcher alleges claims under the Fourth Amendment, deprivation of liberty and property under the Due Process clause of the Fourteenth Amendment, and the tort of intentionally intercepting a wire, oral, or electronic communication. (Compl. Attachment at 1, ECF No. 1-1.) Pratcher contends that on September 13, 2014, he was arrested during the execution of a search warrant on 7035 PackBrook Lane in Memphis, Tennessee, and was subsequently indicted on two counts of unlawful possession of a controlled substance with intent to deliver in an amount greater than 300 grams. (Id. at 3.) Pratcher alleges that Defendants Acred and Overly obtained the search warrant based on a series of illegally intercepted communications and cell site information from several cell phones. (Id.)

         On November 4, 2016, Pratcher filed a motion for leave to file an amended complaint. (ECF No. 5.) Because the motion was filed before the court screened his complaint and is intended to supplement, rather than supersede the complaint, the motion is GRANTED. In Pratcher's amended complaint he adds that the information used to obtain the search warrants was gathered by also using a stingray device. (Amended Compl. at 3, ECF No. 5.) Pratcher seeks compensatory and punitive damages. (Amended Compl. at 10-11.)

         By way of additional background, on November 13, 2014, Pratcher was indicted on two counts of violating Tenn. Code Ann. § 39-17-417. (https://cjs.shelbycountytn.gov Indictment No. 14 05852-1464445). On November 6, 2015, Pratcher pleaded guilty to one count; the second count was dismissed. (Id.) On December 30, 2016, Pratcher filed a petition for post-conviction relief, which was denied on January 9, 2017. (Id.)

         SCREENING STANDARD

         The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(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 such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         In assessing whether the Pro Se Complaint in this case states a claim on which relief may be granted, the Court applies 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 ...


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