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Lowe v. Phillips

United States District Court, E.D. Tennessee, Knoxville

November 27, 2017

ASATA LOWE, Plaintiff,
v.
SHAWN PHILLIPS, BRIAN WHITMAN, LOWELL H. RIDINGS, ERNEST KEMPER, III, ALCOA POLICE DEPARTMENT, EDWARD P. BAILEY, KIRK E. ANDREWS, F.D. GIBSON, BLOUNT COUNTY DISTRICT ATTORNEY OFFICE, BLOUNT COUNTY SHERIFF'S DEPARTMENT, and TENNESSEE DEPARTMENT OF CORRECTIONS, Respondents.

          H. Bruce Guyton, Magistrate Judge.

          MEMORANDUM

          TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE.

         Before the Court is a complaint pursuant to 42 U.S.C. § 1983 filed by Asata Lowe (“Plaintiff”) on October 16, 2017 [Doc. 2]. In addition to the complaint, Plaintiff filed a motion for leave to proceed in forma pauperis [Doc. 1], a motion in equity [Doc. 3], a request to issue summons and demand jury trial [Doc. 6], and a motion for seizure of person and/or property to secure satisfaction of the potential judgment [Doc. 7]. Based on the foregoing, Plaintiff's motion for leave to proceed in forma pauperis [Doc. 1] will be GRANTED, and this action will be DISMISSED for failing to state a claim upon which relief may be granted. Accordingly, the remaining non-dispositive motions will be DENIED AS MOOT.

         I. FILING FEE

         According to the financial data supplied in Plaintiff's inmate trust account statement, Plaintiff has $0.34 to his credit at the Morgan County Correctional Complex [Doc. 1 p. 9]. Thus, his motion for leave to proceed in forma pauperis [Doc. 1] is GRANTED. Nonetheless, because Plaintiff is an inmate, he is ASSESSED the filing fee of three hundred and fifty dollars ($350). McGore v. Wrigglesworth, 114 F.3d 601, 607 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         The custodian of Plaintiff's inmate trust account at the institution where he now 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 has been paid to the Clerk's Office. McGore, 114 F.3d at 607.

         Payments should be sent to: Clerk, USDC; 800 Market Street, Suite 130, Knoxville, Tennessee 37902. To ensure compliance with the fee-collection procedure, the Clerk is DIRECTED to mail a copy of this order to the custodian of inmate accounts at the institution where Plaintiff is now confined. 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 prison file and follow him if he is transferred to another correctional institution.

         II. SCREENING REQUIREMENT

         Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner complaints and sua sponte dismiss those that are frivolous or malicious, fail to state a claim for relief, or are against a defendant who is immune. See, e.g., Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999).

         In screening this complaint, the Court bears in mind that pro se pleadings filed in civil rights cases must be liberally construed and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, the pleading must be sufficient “to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which simply means that 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 “facial plausibility” standard does not require “detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citations and internal quotation marks omitted). The standard articulated in Twombly and Iqbal “governs dismissals for failure to state a claim under [28 U.S.C. §§ 1915(e)(2) and 1915A] 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).

         To state a claim under 42 U.S.C. § 1983, Plaintiff must establish that she was deprived of a federal right by a person acting under color of state law. Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998); O'Brian v. City of Grand Rapids, 23 F.3d 990, 995 (6th Cir. 1994); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992); 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 elsewhere.”). In other words, the plaintiff must plead facts sufficient to show: (1) the deprivation of a right, privilege, or immunity secured to him by the United States Constitution or other federal law; and (2) that the individual responsible for such deprivation was acting under color of state law. Gregory v. Shelby Cty., 220 F.3d 433, 441 (6th Cir. 2000).

         III. ANALYSIS

         Plaintiff was convicted and sentenced to one count of especially aggravated robbery and two counts of first-degree murder. Plaintiff's allegations set forth in his complaint appear to challenge the validity of his incarceration, not atypical conditions that would give rise to a cognizable § 1983 claim. Plaintiff's complaint challenges the validity of Tennessee Code Annotated § 39-13-202 and Tennessee Code Annotated § 39-13-403-the Tennessee criminal statutes under which he was convicted-as well as Tenn. Code Ann. § 40-35-101-the Tennessee penal statute under which he was sentenced [Doc. 2 p. 3]. He further asserts that all chapters and all parts of Titles 4, 6, 8, 23, and 41 of the Tennessee Code Annotated, along with the Tennessee Rules of Court, deprive him of his rights secured by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. ...


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