Anders v. Purifoy, 16-cv-2321-JDT-tmp

• Decision Date: 18 May 2016
• Docket Number: No. 16-cv-2321-JDT-tmp,16-cv-2321-JDT-tmp
• Parties: JONAH PAUL ANDERS, Plaintiff, v. SHAYLA N. PURIFOY, MEMPHIS AREA LEGAL SERVICES, MAYLA C. ANDERS, TENNESSEE CIRCUIT COURT JUDGE GINA HIGGINS, and ANUMEHA TAN)YA, Defendants.
• Court: U.S. District Court — Western District of Tennessee

JONAH PAUL ANDERS, Plaintiff, v. SHAYLA N. PURIFOY, MEMPHIS AREA LEGAL SERVICES,MAYLA C. ANDERS, TENNESSEE CIRCUIT COURT JUDGE GINA HIGGINS,and ANUMEHA TAN)YA, Defendants.

No. 16-cv-2321-JDT-tmp

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

May 18, 2016

REPORT AND RECOMMENDATION

On May 9, 2016, pro se plaintiff Jonah Paul Anders filed a complaint against Shayla N. Purifoy, Mayla C. Anders, Tennessee Circuit Court Judge Gina Higgins, Anumeha Tanya, and Memphis Area Legal Services ("MALS") (collectively "Defendants"). (ECF No. 1.) The same day, Mr. Anders also filed an application to proceed in forma pauperis, which the court granted on May 11, 2016. (ECF Nos. 2 & 5.) Pursuant to Administrative Order 2013-05 (Apr. 29, 2013), 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, it is recommended that Mr. Anders's complaint be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii) and for lack of subject matter jurisdiction.

I. PROPOSED FINDINGS OF FACT

On May 2, 2016, Mr. Anders filed a complaint against Defendants, alleging various violations of his due process rights in two state court cases stemming from his divorce from defendant Ms. Anders, his ex-wife. Mr. Anders asserts that Ms. Purifoy, an attorney with MALS, allegedly lied to and misled the state court judge in the cases at issue. Similarly, Mr. Anders claims that another MALS attorney, Ms. Tanya, allegedly "assisted in getting [an] order changed without notice ex parte." With regard to Ms. Anders, Mr. Anders alleges that she presented false documents and statements during the state court proceedings. Lastly, Mr. Anders alleges that Judge Higgins "abused her authority" by refusing to "hear his appeal," by issuing a divorce instead of an annulment, by awarding excessive child support and alimony, and by failing to issue a final judgment so that he could appeal her rulings. Mr. Anders requests various forms of injunctive and monetary relief. His complaint asserts jurisdiction based on federal question.

II. PROPOSED CONCLUSIONS OF LAW

A. Standard of Review

The court is required to screen in forma pauperis complaints and to 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). In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court 'consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). "[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a 'showing,' rather than a blanketassertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests.").

"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 (internal quotation marks omitted). 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 F. App'x 608, 613 (6th Cir. 2011) ("[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading") (internal quotation marks omitted); Payne v. Sec'y of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, itwould transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.").

B. Failure to State a Claim

Mr. Anders's complaint references three federal statutes - 18 U.S.C. § 1028, 8 U.S.C. § 1227, and 8 U.S.C. § 1324c. However, these statutes outline criminal offenses that do not provide a private right of action. "Absent a private right of action, a plaintiff cannot recover civilly for violation of a criminal statute." Milam v. Southaven Police Dep't, No. 15-CV-02029-SHL-DKV, 2015 WL 1637937, at *7 (W.D. Tenn. Apr. 13, 2015), aff'd (Aug. 21, 2015); see also Saro v. Brown, 11 F. App'x 387, 388 (6th Cir. 2001) ("Violations of these [mail and wire fraud] sections of the federal criminal code do not give rise to independent, private causes of action."); Marshall v. Howard, No. 3:06-CV-354-H, 2007 WL 952076, at *2 (W.D. Ky. Mar. 26, 2007) ("Even if they have occurred, violations of state and federal statutes do not provide for private causes of action; authority to initiate criminal complaints rests exclusively with state and federal prosecutors.") (internal citation omitted). Additionally, "an individual cannot file criminal charges." Hayes v. Shelby Cnty. Tr., 971 F. Supp. 2d 717, 735 (W.D. Tenn.2013); see also Hayes v. Cowans, No. 14-2366-STA-dkv, 2014 WL 2972298, at *9 (W.D. Tenn. July 2, 2014). Therefore, Mr. Anders's complaint fails to state a claim upon which relief may be granted with regard to these federal criminal statutes. Accordingly, the court recommends dismissal of these claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Mr. Anders also alleges that his Fifth Amendment due process rights were violated by Defendants. However, "[t]he Fifth Amendment's Due Process Clause applies only to the actions of the federal government." Taylor v. Nichols, No. 05-1201-T-AN, 2006 WL 2850431, at *3 (W.D. Tenn. Oct. 4, 2006) (citing Scott v. Clay Cnty., 205 F.3d 867, 873 n.8 (6th Cir. 2000)); see also Myers v. Vill. of Alger, Ohio, 102 F. App'x 931, 933 (6th Cir. 2004). There are no allegations in Mr. Anders's complaint against the federal government or any federal officials or agencies. Therefore it is recommended that Mr. Anders's Fifth Amendment claims be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

Lastly, Mr. Anders alleges that his Fourteenth Amendment due process rights were violated by Defendants. As best as the court can tell, Mr. Anders intends to bring a claim under 42 U.S.C. § 1983 against Defendants. Section 1983 "provides a method of seeking redress of deprivation of federal constitutional rights and federal statutory rights." Rajapaksev. Baker Donelson Bearman Caldwell & Berkowitz, P.C., No. 13-2328-JDT-DKV, 2013 WL 3992523, at *8 (W.D. Tenn. Aug. 5, 2013) (citing Albright v. Oliver, 510 U.S. 266 (1994)). To state a claim under § 1983, a plaintiff must allege two elements: "'(1) the defendant was acting under color of state law, and (2) the offending conduct deprived the plaintiff of rights secured under federal law.'" Taylor v. City of Falmouth, 187 F. App'x 596, 599 (6th Cir. 2006) (quoting Mezibov v. Allen, 411 F.3d 712, 716-17 (6th Cir. 2005)). Generally, § 1983 does not "prohibit the conduct of private parties acting in their individual capacities." Lindsey v. Detroit Entm't, LLC, 484 F.3d 824, 827 (6th Cir. 2007). Mr. Anders has not alleged facts to plausibly claim that Ms. Purifoy or Ms. Tanya (attorneys for MALS), Ms. Anders (his ex-wife), or MALS acted under color of state law. See Taylor v. Memphis Area Legal Services, Inc., No. 12-2467-T-tmp, at *6-7 (W.D. Tenn. Jan. 30, 2013) (holding that plaintiff failed to state a § 1983 claim against MALS and other legal aid organizations because plaintiff failed to allege that MALS and other defendants were state actors or acted under color of state law). Therefore, it is recommended that Mr. Anders's Fourteenth Amendment claims against these defendants also be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Judicial Immunity

To the extent that Mr. Anders has arguably stated a claim against Judge Higgins under § 1983, his claims for both injunctive and monetary relief are barred by judicial immunity. With regard to monetary relief, a judge is immune from suits for money damages unless: (1) "the judge's actions were non-judicial;" or (2) "the judge performed the actions 'in the complete absence of all jurisdiction.'" Ward v. City of Norwalk, No. 15-3018, 2016 WL 402975, at *2 (6th Cir. Feb. 3, 2016) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). In his complaint, Mr. Anders asserts that Judge Higgins's "conduct is so egregious [that] she has stepped outside of her immunity shield." However, contrary to Mr. Anders's...