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Rodriguez v. McCarthy

United States District Court, E.D. Michigan, Southern Division

October 24, 2016

MARIO HUERTA RODRIGUEZ, Plaintiff,
v.
JOSEPH MCCARTHY, ET. AL., Defendants,

          OPINION AND ORDER DENYING PLAINTIFF'S CIVIL RIGHTS COMPLAINT AND TRANSFERRING CASE TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(B)(3)(A)

          HONORABLE SEAN F. COX, UNITED STATES DISTRICT COURT

         I. Introduction

         The Court has before it Plaintiff Mario Huerta Rodriguez's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at the Kinross Correctional Facility in Kincheloe, Michigan. For the reasons stated below, the Court will deny plaintiff's civil rights complaint, because it fails to state a claim upon which relief can be granted. This Court further construes plaintiff's action as a second or successive petition for habeas relief and will transfer the matter to the United States Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) for authorization to file a second or successive habeas petition.

         II. Standard of Review

         Plaintiff paid the entire filing fee of $ 400.00, thus rendering inapplicable this Court's authority to screen such complaints for frivolity or maliciousness pursuant to a portion of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(e)(2). However, the Court has an initial and continuing obligation under Fed.R.Civ.P. 12(b)(1) to review and dismiss cases in which the Court lacks subject matter jurisdiction. Because the Court finds that plaintiff's claim is devoid of merit or no longer open to discussion, the Court will sua sponte dismiss the complaint for lack of subject matter jurisdiction.

         A federal district court's authority to screen and sua sponte dismiss complaints under 28 U.S.C. § 1915(e)(2) is limited to those prisoner complaints that are filed in forma pauperis. Benson v. O'Brian, 179 F.3d 1014, 1015 (6th Cir. 1999). Plaintiff did not file his complaint in this case as an indigent, but paid the filing fee and did not seek in forma pauperis status. As a general rule, a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend the complaint. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).

         However, a review of a prisoner's civil rights complaint pursuant to 28 U.S.C. § 1915A is appropriate regardless of whether the prisoner has sought in forma pauperis status when the claim is brought against a governmental entity. Benson, 179 F.3d at 1017. Therefore, if a prisoner's complaint seeks relief from a governmental entity, officer, or employee, Congress has directed that the district court must dismiss it, or any part thereof, which (a) is frivolous, malicious, or fails to state a claim upon which relief can be granted, or (b) seeks monetary relief from a defendant who is immune from suit for monetary damages. 28 U.S.C. § 1915A. Furthermore, “a district court may, at any time, sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d at 479 (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)(citing numerous Supreme Court cases for the proposition that patently frivolous, attenuated, or unsubstantial claims divest the district court of jurisdiction)).

         A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks an arguable basis in law or fact if it ... is based on legal theories that are indisputably meritless.” Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000)(citing Neitzke, 490 U.S. at 327-28). A complaint fails to state a claim “if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown, 207 F.3d at 867. Sua sponte dismissal is appropriate if the complaint lacks an arguable basis when filed. McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997).

         III. Complaint

         Plaintiff was convicted in the St. Clair County Circuit Court of felonious assault, assault with intent to commit murder, carrying a firearm with unlawful intent, and possession of a firearm during the commission of a felony. The facts underlying plaintiff's conviction were briefly summarized by the Michigan Court of Appeals in their opinion affirming his conviction:

         The incident giving rise to this case occurred over a three-hour period in the

early morning hours of March 30, 1998. Police responded to a domestic dispute at a residence where shots had been fired. Upon arrival, police found defendant outside the house holding a rifle. Defendant failed to comply with repeated police orders to drop his weapon. Defendant fled into a wooded area. Shortly after 3:00 a.m., defendant emerged from the woods and shots were fired. According to prosecution witnesses, defendant pointed his rifle at two Michigan State Police troopers and fired one round. The troopers returned fire causing defendant to sustain nine gunshot wounds. The defense's theory of the case was that defendant did not fire at the troopers and that they fired at him without cause.

People v. Rodriguez, No. 227863, 2003 WL 550012, at * 1 (Mich.Ct.App. Feb. 25, 2003).

         After exhausting his state court remedies, plaintiff filed a petition for writ of habeas corpus, which was dismissed with prejudice on the ground it was barred by the one year statute of limitations contained in 28 U.S.C. § 2244(d)(1). Rodriguez v. McQuidgen, No. 08-CV-13263, 2009 WL 2742004 (E.D. Mich. Aug. 25, 2009); app. dism. No. 09-2157 (6th Cir. Aug. 3, 2010). Plaintiff has since been denied permission twice by the United States Court of Appeals for the Sixth Circuit to file a ...


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