United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE.
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.
Application to Proceed as a Pauper
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.
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.
Dismissal of the Complaint
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).
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.”
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.
Standard of Review
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.”).
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”).