United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER OF SUMMARY DISMISSAL OF COMPLAINT
HONORABLE STEPHEN J. MURPHY, III JUDGE
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
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, 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
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
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).
complaint is subject to dismissal for several reasons.
Mr. Dewberry Fails to State a Claim For Which Relief May
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).
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).
The Court Cannot Reverse Mr. Dewberry's ...