United States District Court, E.D. Michigan, Southern Division
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
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.
Standard of Review
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.
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).
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
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).
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
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
People v. Rodriguez, No. 227863, 2003 WL 550012, at
* 1 (Mich.Ct.App. Feb. 25, 2003).
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 ...