Hessmer v. Bad Gov't
| Decision Date | 10 September 2012 |
| Docket Number | Case No. 3:12-cv-590 |
| Parties | JOHN ALLEN HESSMER, Plaintiff, v. BAD GOVERNMENT et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
This is a pro se civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The matter has been referred to the undersigned by District Judge Todd Campbell for case management and all pretrial proceedings pursuant to 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure.
The first order of business is to conduct the initial review required by 28 U.S.C. § 1915A, which states in pertinent part: "The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Id. § 1915A(a). In conducting this review, the court is to identify any cognizable claims and to dismiss the complaint or any portion thereof, prior to service on the defendants, to the extent it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. §1915A(b). Applying these standards, I find that the complaint states a colorable claim under § 1983 for retaliatory transfer against defendant "Chief Bryant" in his individual capacity, and recommend that the complaint be served upon that defendant and that this claim be permitted, at this stage, to proceed. I further recommend that all other claims in the complaint be dismissed, for the reasons set forth herein.
The plaintiff in this case has filed a 133-page complaint (Complaint, ECF No. 1) along with an additional 40 pages of "addenda." He does not identify any defendants in the caption of his complaint; instead, he states that his suit is filed against "Bad Government." In the body of the complaint itself, however, the plaintiff identifies the following individuals as defendants: (1) Attorney B.F. Jack Lowery, Sr.; (2) Assistant Public Defender William Keele Cather; (3) Assistant District Attorney Brian W. Fuller; (4) Assistant District Attorney Laura E. Bush; (5) Judge Robert P. Hamilton; (6) Judge David Earl Durham; (7) Clerk of Court Linda Neal; (8) Attorney Sam W. Guin, Jr.; (9) Judge John D. Wootten, Jr.; (10) Wilson County Sheriff Terry Ashe; (11) Chief Bryant; (12) Detective Lee Bridges; (13) Deputy John Puckett; (14) Deputy Robinson; (16) Judge James Oscar Bond, Sr.; (16) Community Corrections Officer Mickey Williamson; (17) Community Corrections Officer Carrol Clemmons; (18) "Community Corrections Director"; (19) bail bondsman Danny Tidwell; (19) Marty Smith McLemore; (20)Judge John Thomas Gwin; (21) Deputy Glidewell; (22) Wilson County Mayor; (23) Wilson County; (24) the State of Tennessee; (25) Tennessee Attorney General Robert E. Cooper, Jr.; and (26) Governor Bill Haslam. The plaintiff states that he names each of the defendants in his or her individual and official capacity, and he seeks monetary damages as well as various unusual and creative forms of equitable relief.
The lengthy complaint consists mostly of legal argument concerning such matters as judicial and other forms of immunity, and citations to purported legal authority; it contains a relative paucity of factual allegations. Aside from the statements of law and utterly conclusory assertions, the allegations of fact stated in the complaint are as follows:
Defendant Judges Bond and Wootten were personally in receipt of "a crudely drafted writ transferred to their courts by the Davidson County Courts in October of 2004" (Complaint, ECF No. 1, at 10). The plaintiff alleges that these defendants did not respond to said "writs" for which they are liable from October 14, 2004 through July 7, 2007.
Defendant David Earle Durham personally received such a "writ," hand-delivered by the plaintiff on January 9, 2012, "making him liable to plaintiff for everyday since that day that [he refused] to receive this writ from this plaintiff and counting!" (Id. at 10.)
The plaintiff asserts that some of his claims are "nunc protunc but are still live and valid" because some of his claims concern allegedly continuing offenses, other claims may have been tolled due to lack of notice or because of state interference, and all claims have been tolled for an indefinite period of time due to the plaintiff's mental incompetence resulting from brain trauma incurred in 1999. (Id. at 21.) The plaintiff alleges that he was in a motorcycle accident in September 1999 from which he suffered a traumatic head injury as well as hearing loss. He alleges that, as a result of that accident, he had to relearn how to write and spell, "just like starting school all over again from the very beginning." (Id. at 22.)
The plaintiff alleges that in January 1999, Sheriff Terry Ashe seized $52,800 cash from the plaintiff's mother's home, along with two vehicles and a quantity of construction tools, all without a search warrant and without notifying the plaintiff of any forfeiture proceedings. The plaintiff alleges this seizure violated state law, as well as his constitutional rights to due process.
The plaintiff alleges that in 1999, Deputy John Puckett conspired with Deputy Glidewell to entrap the plaintiff. This conspiracy somehow involved luring the plaintiff with a "postal package at the post office with pot in it." (Id. at 30.) This situation resulted in the plaintiff's being arrested on various charges in 1999 in Macon County, including, based on documents attached to the plaintiff's complaint, charges of aggravatedburglary, vandalism, and possession of less than a half ounce of marijuana. The plaintiff plead guilty to these charges in March 2000. (Addendum to Complaint, ECF No. 1, at 137-39.) The plaintiff asserts that Judge David Earl Durham knew that the plaintiff was factually innocent of these crimes, and further knew that the plaintiff was "legally innocent due to the fact that the state lacked both territorial and subject-matter of drugs transported in the mail where the arrest transpired on postal property." (Complaint, ECF No. 1, at 30.)
In October 1999, Deputy Puckett allegedly obtained a search warrant based on his own unsubstantiated affidavit made in bad faith, and used it to "invade Plaintiff's home illegally without justifiable cause." (Id. at 38.) In the course of the search, Deputy Puckett allegedly destroyed personal property belong to the plaintiff valued at $21,000, in retaliation for "finding his personal information on computer files in an investigation of Wilson County by Plaintiff." (Id. )
In late 1999, Wilson County Sheriff Terry Ashe and "many other state officials" met with the plaintiff's retained attorney, Jack Lowery, Sr., and later "coerced" Mr. Lowery into not filing for recovery of personal property worth $75,000 taken from the plaintiff by Sheriff Ashe, into agreeing not to recover $250,000 in the plaintiff's personal injury lawsuit, and into not stating anexculpatory defense to the "entrapment drug charge." (Id. at 42.1 ) The plaintiff claims that Mr. Lowery was paid $44,000 for these "disservices," and that he later "actively participated applying his influences upon Judges James Oscar Bond Sr. and John D. Wootten Jr. to have Plaintiff illegally arrested without probable cause and falsely imprisoned without any evidence whatsoever." (Id. )
On March 30, 2000, the plaintiff "unknowingly" plead guilty, under duress, to claims that are not specified in the complaint. (Id. at 47.) The record reflects that the plaintiff was sentenced to probation on those charges. (See ECF No. 1, at 137-39 (Macon Cnty. Crim. Ct. Judgments for Aggravated Burglary, Vandalism, Marijuana Possession. dated April 14, 2000).)
On June 12, 2000, Community Corrections Officer Carrol Clemmons allegedly filed a false warrant against the plaintiff for violation of probation, and Judge Bond, to whom the warrant was presented, "knowingly verified false arrest warrant without any evidence whatsoever." (Complaint, ECF No. 1, at 45.) On June 14, 2000, Deputy Robinson and two other unnamed deputies invaded the plaintiff's home and violently assaulted him, without cause, and took him into custody. The plaintiff asserts that these actions were taken because the plaintiff had asked Carrol Clemmons (apparently his probation officer) for permission to go see Attorney Virginia Townzen on June 7, 2000, to attempt to rectifyAttorney Lowery's "misdeeds against Plaintiff." (Id. )
On June 26, 2000, the plaintiff appeared before Judge John D. Wootten, Jr. On that date, Community Corrections Officer Mickey Williamson testified that the plaintiff's urinalysis was positive for drugs and asked Judge Wootten to revoke the plaintiff's probation. The plaintiff explained to Judge Wootten that he had actually passed the urinalysis, that he had a brand new son, that his mother was dying from lung cancer and also needed his support, and that the plaintiff had a new job that paid well. The plaintiff's probation was nonetheless revoked; the plaintiff claims his probation was revoked based on false evidence.
The plaintiff filed a post-conviction petition in October 2000 raising various defenses to the conviction and sentence. Apparently no action was taken on this petition. After unsuccessful efforts to contact Attorney Lowery, Judge Bond, and Clerk Linda Neal, the plaintiff finally filed a federal habeas petition. Judge Wootten then "sua sponte" initiated post-conviction proceedings "just to subvert federal review," but limited the plaintiff's claims to false imprisonment. (Id. at 47.) Judge Wootten claimed that he lacked jurisdiction over his own probation revocation proceedings, and Judge Bond "issued a timebar order on July 5, 2001." (Id. ) The plaintiff complains that Judge Bond and Clerk Neal never served notice of the "timebar" order on him, in...
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