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Anderson v. Cousins

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

January 31, 2018

JERRY ANDERSON, II, Plaintiff,
v.
NICHOLAS COUSINS, et. al., Defendants,

          OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT

          DENISE PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT

         I. INTRODUCTION

         The Court has before it Plaintiff Jerry Anderson, II's pro se civil rights complaint filed pursuant to 42 U.S.C.§ 1983. Plaintiff is incarcerated at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. The Court concludes that plaintiff's complaint must be summarily dismissed for failure to state a claim upon which relief may be granted and on the basis of immunity. The Court also concludes that an appeal from this decision cannot be taken in good faith.

         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). 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, such complaints 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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