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Gwin v. McWherter

United States District Court, W.D. Tennessee, Eastern Division

October 23, 2019

ROBERT IRWIN GWIN, Plaintiff,
v.
NED RAY MCWHERTER, ET AL., Defendants.

          ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE.

         On 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[1] 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.

         Gwin 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 PageID 4.)

         Gwin 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.)

         Gwin 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.)

         Gwin 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 PageID 13-15.)

         The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint-

(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 such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

         In 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.

         “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 (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))).

         Gwin filed his complaint pursuant to 42 U.S.C. § 1983, which provides:

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 ...

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