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Middlebrooks v. Parker

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

January 8, 2020

DONALD MIDDLEBROOKS, Plaintiff,
v.
TONY PARKER, et al., Defendants.

         CAPITAL CASE

          MEMORANDUM AND ORDER

          WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE

         Plaintiff, a state inmate on death row in the Riverbend Maximum Security Institution, has filed a complaint for alleged violation of his civil rights pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) In lieu of the filing fee, Plaintiff submitted an application to proceed in forma pauperis (IFP), supported by a certificate of trust account activity. (Doc. No. 2.) The case is before the Court for a ruling on the IFP application and 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 it appears from Plaintiff's submissions that he lacks sufficient financial resources from which to pay the full filing fee in advance, his application (Doc. No. 2) is GRANTED.

         Pursuant to 28 U.S.C. §§ 1915(b) and 1914(a), Plaintiff must still pay the $350.00 civil filing fee in installments. The administrator of the facility in which Plaintiff is currently incarcerated, as custodian of his trust account, is DIRECTED to submit to the Clerk of Court, as an initial payment, the greater of: (a) 20% of the average monthly deposits to Plaintiff's credit at the jail; or (b) 20% of the average monthly balance to Plaintiff's credit for the six-month period immediately preceding the filing of the Complaint. 28 U.S.C. § 1915(b)(1). Thereafter, the custodian shall submit 20% of Plaintiff's preceding monthly income (or income credited to Plaintiff for the preceding month), but only when the balance in his account exceeds $10.00. 28 U.S.C. § 1915(b)(2). Payments shall continue until the $350.00 filing fee has been paid in full to the Clerk of Court. 28 U.S.C. § 1915(b)(3).

         The Clerk of Court MUST send a copy of this Order to the Warden of the Riverbend Maximum Security Institution to ensure payment of the filing fee. If Plaintiff is transferred from his present place of confinement before the fee is paid in full, the custodian must ensure that a copy of this Order follows him to his new place of confinement, for continued compliance with the Order. All payments made pursuant to this Order must be submitted to the Clerk of Court for the United States District Court for the Middle District of Tennessee, 801 Broadway, Nashville, TN 37203.

         II. INITIAL REVIEW OF THE AMENDED 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. In reviewing the complaint to determine whether it states a plausible claim, “a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). The Court also always has the inherent authority to dismiss a complaint sua sponte for lack of subject matter jurisdiction. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).

         Plaintiff sues under 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). To state a Section 1983 claim, a plaintiff must allege: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that “the deprivation was caused by a person acting under color of state law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (citations omitted); 42 U.S.C. § 1983.

         Plaintiff alleges in Count 1 that that Tennessee's current lethal injection protocol “presents a risk that is sure or very likely to cause serious illness and needless suffering” and that “a feasible and readily implemented alternative methods [sic] of execution” exists, which the state “refuses to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain.” (Doc. No. 1 at 56 (quoting Bucklew v. Precythe, 139 S.Ct. 112, 1129 (2019).) Plaintiff's allegations are sufficient to state a colorable claim for relief under the Eighth Amendment. Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015).

         The Court is aware, based on recent litigation in and arising from this district, that the doctrine of res judicata is implicated by this case. See West v. Parker, 783 Fed.Appx. 506, 511-15 (6th Cir.), cert. denied, 140 S.Ct. 25 (2019) (affirming this Court's decision that res judicata barred consideration of lethal injection challenge that had been litigated in state-court case to which Middlebrooks was also a party); see also Sutton v. Parker, No. 3:19-5 (M.D. Tenn. Sept. 5, 2019), appeal docketed, No. 19-6135 (6th Cir. Oct. 7, 2019) (dismissing on res judicata grounds lethal- injection challenge brought by another inmate who was a party to the same state-court case). Res judicata is an affirmative defense that usually must be raised by a defendant, Fed.R.Civ.P. 8(c), and should only be raised by the Court sua sponte in “special circumstances, ” such as when “a court is on notice that it has previously decided the issue presented.” Arizona v. California, 530 U.S. 392, 412 (2000); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 418 (6th Cir. 2011) (citing Arizona for the proposition that the Court may address sua sponte the issue of res judicata). This Court has, on occasion, dismissed complaints on initial screening pursuant to the PLRA on the basis of res judicata. See, e.g., Wimber v. Jackson, No. 3:19-CV-00663, 2019 WL 5555543, at *4 (M.D. Tenn. Oct. 28, 2019). However, in light of the gravity of Plaintiffs' claims, the Court will allow the case to proceed and rely on the parties to brief the issues relevant to res judicata and any other defense(s) raised to Count 1.

         In Counts 2, 3, and 4, Plaintiff challenges the constitutionality of electrocution. (Doc. No. 1 at 57-59.) He alleges, however, that lethal injection is now the default method of execution in Tennessee and that an inmate will be executed by electrocution under two circumstances: if he elects electrocution by signing a written waiver, or if lethal injection is declared unconstitutional. (Id. at 8-9, 19.) He does not allege that either of those events has occurred. To the contrary, Plaintiff alleges that he “has not-and will not-elect a method of execution. Accordingly, . . . the death sentence will be carried out by lethal injection.” (Id. at 9.)

         A claim must present a real and present dispute for this Court to ...


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