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Dewberry v. Third Judicial Circuit Court

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

September 5, 2017

RAMIREZ DEMARCO DEWBERRY, Plaintiff,
v.
THIRD JUDICIAL CIRCUIT COURT, Defendant.

          OPINION AND ORDER OF SUMMARY DISMISSAL OF COMPLAINT [1]

          HONORABLE STEPHEN J. MURPHY, III JUDGE

         Plaintiff Ramirez Demarco Dewberry filed a complaint seeking declaratory and other relief under 42 U.S.C. § 1983 alleging that: (1) Defendant refuses to accept his habeas petition; (2) he is being illegally restrained; (3) Defendant has unlawfully suspended his right to file a petition for a writ of habeas corpus; and (4) Mich. Comp. Laws § 600.4310 is unconstitutional. ECF 1. The Court then granted his application to proceed without prepaying fees or costs pursuant to 28 U.S.C. § 1915. ECF 3. For the reasons stated below, the Court will dismiss the claims without prejudice.

         BACKGROUND

         Mr. Dewberry was convicted and sentenced in the Wayne County Circuit Court of first-degree criminal sexual conduct, second-degree sexual conduct, kidnaping, felonious assault, and felony-firearm. It appears he did not appeal his conviction or sentence.[1]

         On May 1, 2017, Plaintiff filed a state petition for writ of habeas corpus with the Third Judicial Circuit (Wayne County) Court. He alleges that Defendant wrongly refused to accept his habeas petition for filing. Plaintiff consequently brought this suit.

         LEGAL STANDARD

         When the Court grants an application to proceed without prepayment of fees, as it did here, the Court must dismiss the case if at any time it determines that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or 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).

         To establish a prima facie case under 42 U.S.C. § 1983, a 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. West v. Atkins, 487 U.S. 42, 48 (1988). “If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).

         DISCUSSION

         Plaintiff's complaint is subject to dismissal for several reasons.

         I. Mr. Dewberry Fails to State a Claim For Which Relief May Be Granted

         To the extent that Plaintiff seeks monetary damages arising from his criminal conviction, a remedy is not available. To recover monetary damages for an allegedly unconstitutional conviction or imprisonment, a § 1983 plaintiff must prove that the conviction or sentence was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by the issuance of a federal writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Alkire v. Irving, 330 F.3d 802, 816, n.10 (6th Cir. 2003). Plaintiff makes no such allegation, so he fails to state a claim for which monetary damages may be granted. See Adams v. Morris, 90 F.App'x. 856, 858 (6th Cir. 2004).

         Plaintiff also cannot seek declaratory or injunctive relief. When a state prisoner challenges the very fact or duration of his physical imprisonment-and the relief he seeks is a determination that he is entitled to immediate or speedier release from that imprisonment-his sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A plaintiff cannot seek declaratory or injunctive relief relating to his conviction in a § 1983 action. Nelson v. Campbell, 541 U.S. 637, 643 (2004).

         II. The Court Cannot Reverse Mr. Dewberry's ...


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