United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
PHAM UNITED STATES MAGISTRATE JUDGE
the court is plaintiff Earley Story's pro se complaint.
(ECF Nos. 1.) Pursuant to Administrative Order No. 2013-05,
this case has been referred to the United States magistrate
judge for management and for all pretrial matters for
determination and/or report and recommendation as
appropriate. For the following reasons, the undersigned
recommends that Story's complaint be dismissed sua
sponte for failure to state a claim. See 28
U.S.C. § 1915(e)(2)(B)(ii).
PROPOSED FINDINGS OF FACT
complaint, which is admittedly difficult to decipher, names
as defendant Sandra Garrett, Disciplinary Chief Counsel for
the Tennessee Board of Professional
Responsibility. (ECF No. 1 at 1.) Story alleges that on
March 14, 2018, he called an inmate in Tennessee state prison
to discuss new evidence the inmate mailed to Story,
“regarding a drug ledger that revealed payments that
were made to [a] confidential informant[.]”
(Id.) Story alleges that he placed the call
“though a Memphis resident[‘s]” phone.
After the call ended he “noticed that Sandra Garrett
and the Nashville telephone number . . . was on the display
of my cell phone[.]” (Id.) Story emailed the
inmate's lawyer to advise her of the conversation.
(Id.) It appears that Story may be a defendant in a
criminal case pending in state court. (Id. at 2.)
legal basis for his claim, Story states that his
“action for this tort” is governed by Tennessee
Rule of Professional Conduct 8. (Id. at 1.) He also
cites Tennessee Rule of Professional Conduct 4.4(b).
(Id.) And he alleges that he “was never
notified that . . . Barrett was monitoring my conversation
concerning the new evidence” that he received from the
inmate. (Id.) Story requests “as a remedy for
this breach of contract of unlawfully monitoring of my
telephone conversation, the sum of $200, 000.00.”
PROPOSED CONCLUSIONS OF LAW
Standard of Review
court is required to screen in forma pauperis
complaints and must dismiss any complaint, or any portion
thereof, if the action: (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B)(i-iii).
avoid dismissal for failure to state a claim, “‘a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)); see also Fed. R. Civ. P.
12(b)(6). “A claim is plausible on its face if the
‘plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Ctr. for
Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,
369 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at
678). Without factual allegations in support, mere legal
conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 679.
se complaints are held to less stringent standards than
formal pleadings drafted by lawyers, and are thus liberally
construed. Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011). Even so, pro so litigants must
adhere to the Federal Rules of Civil Procedure, see Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and the
court cannot create a claim that has not been spelled out in
a pleading. See Brown v. Matauszak, 415 Fed.Appx.
608, 613 (6th Cir. 2011); Payne v. Sec'y of
Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003).
Failure to State a Claim
complaint should be dismissed for failure to state a claim.
His complaint is styled as an action brought under 42 U.S.C.
§ 1983. “To state a claim under
§ 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). As a basis for his suit,
Story only specifically cites to the Tennessee Rules of
Professional Conduct. But “an alleged violation of the
Tennessee Rules of Professional Conduct does ‘not
itself give rise to a cause of action against a
lawyer.'” Bush v. Goodwin, No.
3:15-CV-524-TAV-CCS, 2018 WL 576850, at *15 (E.D. Tenn. Jan.
26, 2018) (quoting Tenn. Sup. Ct. R. 8, RPC Preamble);
see also Rajapakse v. Baker Donelson Bearman
Caldwell & Berkowitz, P.C., No. 13-2328-JDT-DKV,
2013 WL 3992523, at *11 (W.D. Tenn. Aug. 5, 2013).
Story's complaint thus fails to allege the violation of a
Constitutionally-secured right, and his § 1983 action
must therefore be dismissed.
extent Story intended to assert his Fourth Amendment rights
were violated, he has not pleaded facts sufficient to state a
plausible claim for relief. Even liberally construed, the
complaint lacks factual matter describing wrongful conduct on
the part of defendant, and likewise fails to include facts
that would lead the court to reasonably infer that such
conduct could warrant liability for a violation of
Story's rights. The complaint thus contains a mere
“blanket assertion of entitlement to relief.”
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
n.3 (2007). Because such conclusory allegations are
insufficient to state a plausible claim for relief, the
complaint must be dismissed. See 28 U.S.C. §
1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 679.