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Battle v. G45

United States District Court, M.D. Tennessee, Nashville Division

February 20, 2018

TEVIN BATTLE, Plaintiff,
G45 et al., Defendants.



         The plaintiff Tevin Battle, proceeding pro se, has filed a civil complaint under 28 U.S.C. §1983 against defendants G45, Metro and Hollis Harbison. (ECF No. 1.) Plaintiff has also filed a supplement to the complaint. (ECF No. 4.) Before the court is the plaintiff's application to proceed in forma pauperis (ECF No. 2). In addition, his complaint is before the court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

         I. Application to Proceed as a Pauper

         Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be permitted to file suit without prepaying the filing fee required by 28 U.S.C. § 1914(a). Because the plaintiff properly submitted an in forma pauperis application, and because it appears from his submissions that the plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance, the application (ECF No. 2) is GRANTED.

         However, under § 1915(b), the plaintiff nonetheless remains responsible for paying the full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA provides prisoner-plaintiffs the opportunity to make a “down payment” of a partial filing fee and to pay the remainder in installments. Accordingly, the plaintiff is hereby ASSESSED the full $350 filing fee, to be paid as directed in the accompanying order.

         II. Dismissal of the Complaint

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47 (Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). The Court must construe a pro se plaintiff's complaint liberally, Boag v. McDaniel, 454 U.S. 364, 365 (1982), and accept the plaintiff's allegations as true unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         A. Factual Allegations

         In his complaint, the plaintiff alleges that on January 4 or 5, 2017 defendant Harbison, who was apparently an armed security guard at the Davidson County Courthouse, asked the plaintiff to identify himself and started shouting threats at the plaintiff. (ECF No. 1 at Page ID# 6.) As the plaintiff exited the courthouse, defendant Harbison ran after the plaintiff, with his hand on his gun, “shouting gang affiliations and stating he would catch [the plaintiff] in the streets.” (Id.) The plaintiff alleges that there is a recorded interview with Captain Ulm in which he states that he saw defendant Harbison giving a GD handshake with another person” and that he had been in the “gang unit” prior to working in G45. (Id.) Defendant Harbison is incarcerated in the same prison as the plaintiff. (Id.) In the supplement to his complaint, the plaintiff alleges that Captain Ulm stated that he knew about defendant Harbison's gang affiliation but never took any action. (ECF No. 4 at page ID# 20.) The plaintiff alleges that defendant Harbison was a threat when he was an armed security guard on Metro grounds and that “something should [have] been done.” (Id.)

         The plaintiff alleges that he “was violated” by the defendants “breach of security” by defendant Harbison “being a gang member working on Metro grounds and being an armed security guard.” (ECF No. 1 at Page ID# 6.) Additionally, the plaintiff alleges that he was verbally and physically assaulted. As relief, the plaintiff seeks appointment of an attorney to help him and monetary damages against each defendant.

         B. Standard of Review

         If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 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)”). “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.”).

         “Pro 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). The court is not required to create a claim for the plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975); 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”).

         C. ...

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