United States District Court, W.D. Michigan, Southern Division
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Derrick Lee Smith presently is incarcerated with the Michigan
Department of Corrections (MDOC) at the Muskegon Correctional
Facility (MCF). He sues MCF Counselor (unknown) Parson, MCF
Correctional Officer (unknown) McKenzie, and MDOC Hearings
Officer D.J. Pallas. Petitioner currently is serving eight
prison terms of 22 ½ to 75 years, imposed by the Wayne
County Circuit Court on October 29, 2008, after Petitioner
pled no contest to six counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(c), and two
counts of kidnaping, Mich. Comp. Laws § 750.349.
Petitioner also is serving two terms of 6 to 15 years, when
he also pled no contest to third-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520d(1)(b).
Petitioner expressly labels his action as one seeking relief
under 28 U.S.C. § 2254, the allegations of his complaint
have nothing to do with the fact or duration of his
confinement. Instead, Petitioner complains about the
conditions of his confinement. Petitioner contends that
Defendants have violated his constitutional rights by keeping
him in segregation on the basis of a mistake about the
convictions for which he is imprisoned. Petitioner asserts
that Defendant Parson told him that he was being held in
segregation because of his convictions for involuntary
manslaughter and weapons trafficking while in the MDOC.
Petitioner claims that prisoner Devi Smith, not Petitioner,
was convicted of those offenses.
does not identify the relief he seeks.
instant petition is subject to summary dismissal because
Petitioner is challenging the conditions of his confinement.
Where a prisoner is challenging the very fact or duration of
his physical imprisonment and the relief that he seeks is a
determination that he is entitled to immediate release or a
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). However, habeas
corpus is not available to prisoners who are complaining only
of the conditions of their confinement or mistreatment during
their legal incarceration. See Martin v. Overton,
391 F.3d 710, 714 (6th Cir. 2004); Lutz v.
Hemingway, 476 F.Supp.2d 715, 718 (E.D. Mich. 2007).
Complaints like the ones raised by Petitioner, which involve
conditions of confinement, “do not relate to the
legality of the petitioner's confinement, nor do they
relate to the legal sufficiency of the criminal court
proceedings which resulted in the incarceration of the
petitioner.” Id. (quoting Maddux v.
Rose, 483 F.Supp. 661, 672 (E.D. Tenn. 1980)). An inmate
like Petitioner may, however, bring claims that challenge the
conditions of confinement under 42 U.S.C. § 1983.
Id.; see also Austin v. Bell, 927 F.Supp.
1058, 1066 (M.D. Tenn. 1996). Because Petitioner challenges
only the conditions of his confinement, his claims
“fall outside of the cognizable core of habeas corpus
relief.” See Hodges v. Bell, 170 F. Appx 389,
393 (6th Cir. 2006).
pro se litigants are treated to less stringent pleading
formalities, courts still require such litigants to meet
basic pleading standards. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989). “Arguably, hanging the legal
hat on the correct peg is such a standard, and
‘[l]iberal construction does not require a court to
conjure allegations on a litigant's behalf.'”
Martin, 391 F.3d at 714 (quoting Erwin v.
Edwards, 22 F. App'x 579, 580 (6th Cir. 2001)
(dismissing a § 1983 suit brought as a § 2254
petition)). The Sixth Circuit has held that where, as here,
the claims about the conditions of confinement are not
cognizable in an action under § 2254, the district court
must dismiss the habeas action without prejudice to allow the
petitioner to raise his potential civil rights claims
properly in a § 1983 action. Martin, 391 F.3d
light of the foregoing, the Court will summarily dismiss
Petitioner's application pursuant to Rule 4 because it
fails to raise a claim that is cognizable in a habeas action.
28 U.S.C. § 2253(c)(2), the Court must determine whether
a certificate of appealability should be granted. A
certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This Court's
dismissal of Petitioner's action under Rule 4 of the
Rules Governing § 2254 Cases is a determination that the
habeas action, on its face, lacks sufficient merit to warrant
service. It would be highly unlikely for this Court to grant
a certificate, thus indicating to the Sixth Circuit Court of
Appeals that an issue merits review, when the Court has
already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler,
952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under
Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring
reversal where court summarily dismissed under Rule 4 but
granted certificate); Dory v. Comm'r of Corr. of New
York, 865 F.2d 44, 46 (2d Cir. 1989) (it was
“intrinsically contradictory” to grant a
certificate when habeas action does not warrant service under
Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050
n.1 (2d Cir. 1983) (issuing certificate would be inconsistent
with a summary dismissal).
Sixth Circuit Court of Appeals has disapproved issuance of
blanket denials of a certificate of appealability. Murphy
v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the
district court must “engage in a reasoned assessment of
each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered
under the standards set forth by the Supreme Court in
Slack v. McDaniel, 529 U.S. 473 (2000).
Murphy, 263 F.3d at 467. Consequently, this Court
has examined each of Petitioner's claims under the
Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Id.
“A petitioner satisfies this standard by demonstrating
that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed ...