United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL
WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF
APPELLATE FILING FEE
D. TODD, UNITED STATES DISTRICT JUDGE.
January 20, 2017, Plaintiff Robert Irwin Gwin filed a pro
se complaint under 42 U.S.C. § 1983 against several
Defendants, which was docketed as case number
17-2054-JDT-cgc. 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.) On June 4,
2019, the Court entered an order severing Gwin's claims
against former Tennessee Governor Ned Ray McWherter and the
Tennessee Board of Parole (TBOP), directing the Clerk to open
those claims in a new civil case, and dismissing Gwin's
remaining claims. (ECF No. 5.) Gwin's amended
complaint containing his allegations against
McWherter and the Board of Parole was opened as a new civil
case, number 19-1112-JDT-cgc, (ECF No. 1) and is now before
the Court for screening.
alleges that he was convicted of murder during a robbery in
1973 and sentenced to a 100-year term of imprisonment. (ECF
No. 1 at PageID 3.) On January 17, 1979, former Tennessee
Governor Ray Blanton commuted Gwin's sentence to time
served, and Gwin was released from prison. (Id.; ECF
No. 1-1 at PageID 16.) Almost sixteen years later, on
December 20, 1994, then-Governor McWherter revoked the
commutation, reinstated Gwin's original sentence, and
denied Gwin credit for his years of release. (ECF No. 1 at
PageID 3-4.) Gwin was paroled in April 2013 but rearrested
for a parole violation on October 10, 2016. (Id. at
asserts that McWherter acted unconstitutionally when in 1994
he revoked the commutation of Gwin's 1973 sentence
without a probable-cause hearing, denying him credit for the
fifteen years he had been released. (Id.) Gwin
contends the TBOP fraudulently asserted at that time that he
was on parole when his sentence actually had been commuted.
(Id. at PageID 7.) He alleges that the TBOP
falsified government records to show he was paroled on
January 17, 1979. (Id.)
further contends that when he was rearrested for a parole
violation in October 2016, he was constitutionally entitled
to a parole-revocation hearing that complied with the
protections afforded parolees in 1972, the year of his
offense. (Id. at PageID 7-8.) Gwin sues under the
Sixth, Eighth, and Fourteenth Amendments and the Ex Post
Facto clause of Article I of the Constitution.
(Id. at PageID 11, 13-15.)
sues both the TBOP and McWherter in their official capacities
only. (Id. at PageID 1.) He seeks declaratory relief
and compensatory and punitive damages. (Id. at
Court is required to screen prisoner complaints and to
dismiss any complaint, or any portion thereof, if the
(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
28 U.S.C. § 1915A(b); see also 28 U.S.C. §
assessing whether the complaint in this case states a claim
on which relief may be granted, the standards under
Fed.R.Civ.P. 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),
are applied. Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). The Court accepts the complaint's
“well-pleaded” factual allegations as true and
then determines whether the allegations “plausibly
suggest an entitlement to relief.'” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting
Iqbal, 556 U.S. at 681). Conclusory allegations
“are not entitled to the assumption of truth, ”
and legal conclusions “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Although
a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), Rule 8 nevertheless
requires factual allegations to make a
“‘showing,' rather than a blanket assertion,
of entitlement to relief.” Twombly, 550 U.S.
at 555 n.3.
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 (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)). 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);
see also Brown v. Matauszak, 415 Fed.Appx. 608, 612,
613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro
se complaint for failure to comply with “unique
pleading requirements” and stating “a court
cannot ‘create a claim which [a plaintiff] has not
spelled out in his pleading'” (quoting Clark v.
Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975))).
filed his complaint pursuant to 42 U.S.C. § 1983, which
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party ...