UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

DEJUAN DARNELL HAYES, ) ) Plaintiff, ) ) VS. ) No. 19-2511-JDT-cgc ) MEMPHIS POLICE DEPARTMENT, ) ET AL., ) ) Defendants. )

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

On August 6, 2019, Plaintiff Dejuan Darnell Hayes, who is incarcerated at the Shelby County Criminal Justice Center (Jail) in Memphis, Tennessee, filed a pro se complaint pursuant to

and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order on August 7, 2019, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA),

(a)-(b). (ECF No. 4.) The Clerk shall record the Defendants as the Memphis Police Department (MPD) and MPD Officer Nate Lenow. The allegations in Hayes’s complaint are sparse. He states: “Nate Lenow, (1) Use of excessive force, (2) Tampering of evidence, (3) Pain and suffering, (4) Assault, all of which happen on the date of September 24, 2017 at 201 Poplar intake Memphis, TN 38103 at 8:00-9:00 pm.” (ECF No. 1 at PageID 2.) He seeks money damages and also asks that Defendant Lenow be reprimanded. (Id. at PageID 3.) The Court is required to screen prisoner complaints and to dismiss any complaint,

or any portion thereof, if the complaintC (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

(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,

(2009), and in Bell Atlantic Corp. v. Twombly,

(2007), are applied. Hill v. Lappin,

(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,

(6th Cir. 2011) (quoting Iqbal,

). Conclusory allegations “are not entitled to the assumption of truth,” and legal conclusions “must be supported by factual allegations.” Iqbal,

. 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,

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,

(quoting Martin v. Overton,

(6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown,

(6th Cir. 1989); see also Brown v. Matauszak,

(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.,

(6th Cir. 1975))). Hayes filed his complaint pursuant to

, 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 injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the “Constitution and laws” of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co.,

(1970). Though the complaint does not provide any factual details supporting Hayes’s claims, he does specifically allege the events took place on September 24, 2017. The claims therefore are untimely. The statute of limitations for a § 1983 action is the “state statute of limitations applicable to personal injury actions under the law of the state in which the § 1983 claim arises.” Eidson v. Tenn. Dep’t of Children’s Servs.,

(6th Cir. 2007); see also Wilson v. Garcia,

(1985). The limitations period for § 1983 actions arising in Tennessee is the one-year limitations provision found in

(a)(1)(B). Roberson v. Tennessee,

(6th Cir. 2005). However, the complaint in this case was filed almost two

years after the events occurred. Hayes also concedes he did not file any grievance that would have tolled the limitations period. (ECF No. 1 at PageID 2.) For this reason, the complaint is subject to dismissal in its entirety for failure to state a claim because it is time barred. The Sixth Circuit has held that a district court may allow a prisoner to amend his

complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry,

(6th Cir. 2013); see also Brown v. R.I.,

(1st Cir. 2013) (per curiam) (“Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where a deficiency cannot be cured. Gonzalez-Gonzalez v.

United States,

(1st Cir. 2001) (“This does not mean, of course, that every sua sponte dismissal entered without prior notice to the plaintiff automatically must be reversed. If it is crystal clear that . . . amending the complaint would be futile, then a sua sponte dismissal may stand.”); Curley v. Perry,

(10th Cir. 2001) (“We agree with the majority view that sua sponte dismissal of a meritless complaint that

cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”). In this case, the Court concludes that leave to further amend is not warranted. In conclusion, the Court DISMISSES Hayes’s complaint for failure to state a claim on which relief can be granted, pursuant to

(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is DENIED.

Pursuant to

(a)(3), the Court must also consider whether an appeal by Hayes in this case would be taken in good faith. The good faith standard is an objective one. Coppedge v. United States,

(1962). It would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the Defendants but has sufficient merit to support an appeal in forma pauperis. See Williams

v. Kullman,

, 1050 n.1 (2d Cir. 1983). The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith. The Court must also address the assessment of the $505 appellate filing fee if Hayes nevertheless appeals the dismissal of this case. A certification that an appeal is not taken

in good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the installment procedures contained in § 1915(b). See McGore v. Wrigglesworth,

(6th Cir. 1997), partially overruled on other grounds by LaFountain,

. McGore sets out specific procedures for implementing the PLRA, §§ 1915(a)-(b). Therefore, Hayes is instructed that if he wishes to take advantage of the installment

procedures for paying the appellate filing fee, he must comply with the procedures set out in the PLRA and McGore by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust account for the six months immediately preceding the filing of the notice of appeal. For analysis under

(g) of future filings, if any, by Hayes, this is the first dismissal of one of his cases as frivolous or for failure to state a claim. This strike shall take effect when judgment is entered. See Coleman v. Tollefson,

(2015). The Clerk is directed to prepare a judgment. IT IS SO ORDERED. s/ James D. Todd JAMES D. TODD UNITED STATES DISTRICT JUDGE