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Wheeler v. Snyder

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

October 28, 2016

DANIEL WILLIAM WHEELER, Plaintiff,
v.
RICK SNYDER, et. Al., Defendants,

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

          HON. ARTHUR J. TARNOW JUDGE

         I. Introduction

         The Court has before it Plaintiff Daniel William Wheeler's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at the Handlon Correctional Facility in Ionia, 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. The Court denies plaintiff's motion for the appointment of counsel.

         II. Standard of Review

         Plaintiff has been allowed to proceed without prepayment of fees. See 28 § U.S.C. 1915(a); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). However, 28 U.S.C. § 1915(e)(2)(B) states:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that:
(B) the action or appeal:
(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).

         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, 114 F.3d at 612.

         A pro se litigant's complaint is to be construed liberally, Middleton v. McGinnis, 860 F.Supp. 391, 392 (E.D. Mich.1994)(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); that is, they are held to a “less stringent standard” than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Such complaints, however, must plead facts sufficient to show a legal wrong has been committed from which plaintiff may be granted relief. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F.Supp.2d 748, 755 (E.D. Mich.2001).

         To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must establish that: (1) the defendant acted under color of state law; and (2) the offending conduct deprived the plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “If a plaintiff fails to make a showing on any ...


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