United States District Court, E.D. Michigan, Southern Division
ORDER SUMMARILY DISMISSING THE COMPLAINT
M. LAWSON United States District Judge
September 25, 2017, plaintiff Devon Bates, who presently
resides in the State of Michigan's Gus Harrison
Correctional Facility in Adrian, Michigan, filed his pro
se complaint alleging violations of his rights under
various federal constitutional amendments via 42 U.S.C.
§ 1983. On September 27, 2017, the Court granted the
plaintiff's application to proceed in forma
pauperis. The Court has screened the complaint pursuant
to its duty under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1) and now finds that it must be dismissed because
it is frivolous and fails to state any plausible claim upon
which relief may be granted.
plaintiff was charged in the 68th District Court in Flint,
Michigan with first-degree murder and armed robbery. In his
complaint, Bates alleges that his rights were violated during
the criminal proceedings because (1) the arrest warrant and
felony complaint were not supported by probable cause or by
an oath or affidavit; (2) he never was arraigned on the
warrant in the 68th District Court or on the information in
the Genesee County Circuit Court; (3) the felony information
was invalid because it was not signed by the Genesee County
Prosecutor; (4) the information did not give him adequate
notice of the charges that were filed against him; (5) his
right to a speedy trial was violated by the 10-month delay in
bringing him to trial; (6) he was denied the effective
assistance of counsel at trial; (7) the evidence at trial at
most supported a verdict of manslaughter, not first-degree
murder; (8) he did not have an impartial jury; and (9) his
appellate counsel failed to raise meritorious claims on his
appeal of right. Finally, he claims that the Department of
Corrections continues to hold him in prison in violation of
the federal constitution, and he prays for monetary damages
and immediate release from custody or a new trial.
plaintiff asks the court to waive fees and costs because he
cannot afford to pay them, the court has an obligation to
screen the case for merit and dismiss the case if it
“(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). In addition, Congress mandated in the Prison
Litigation Reform Act (PLRA) that the Court screen for
colorable merit every prisoner complaint filed against a
state or governmental entity. 28 U.S.C. § 1915A(a)
(“The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.” (emphasis added));
Wershe v. Combs, 763 F.3d 500, 504 (6th Cir. 2014)
(“‘The Prison Litigation Reform Act  requires
dismissal of any prisoner action brought under federal law if
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief.'”)
(quoting Flanory v. Bonn, 604 F.3d 249, 252 (6th
a pro se litigant's complaint is to be construed
liberally, Erickson v. Pardus, 551 U.S. 89, 94
(2007), such complaints still must plead facts sufficient to
show a redressable legal wrong has been committed.
Fed.R.Civ.P. 12(b)(6); Dekoven v. Bell, 140
F.Supp.2d 748, 755 (E.D. Mich. 2001). “The leniency
granted to pro se [litigants] . . . is not
boundless.” Martin v. Overton, 391 F.3d. 710,
714 (6th Cir. 2004). The screening mandated by Congress in
section 1915(e)(2) includes the obligation to dismiss civil
complaints filed by prospective pro se filers if
they “fail to state a claim upon which relief may be
granted.” See 28 U.S.C. §
1915(e)(2)(B)(ii); McGore v. Wrigglesworth, 114 F.3d
601, 604 (6th Cir. 1997), overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007). To avoid dismissal,
a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Dismissal on the Court's initiative is appropriate if the
complaint lacks an arguable basis when filed. Goodell v.
Anthony, 157 F.Supp.2d 796, 799 (E.D. Mich. 2001).
state a claim under 42 U.S.C. § 1983, a plaintiff must
set forth facts that, when construed favorably, establish (1)
the deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person acting under
the color of state law.” Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting
Sigley v. City of Parma Heights, 437 F.3d 527, 533
(6th Cir. 2006)). The plaintiff must establish the liability
of each individual defendant by that person's own
conduct. “Because vicarious liability is inapplicable
to Bivens and § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).
gravamen of the plaintiff's complaint plainly is an
attack on the lawfulness of his criminal convictions and
sentences resulting from the state court criminal proceeding,
and it must be dismissed because (1) as to the demand for an
order directing the defendants to release the plaintiff from
custody, it seeks relief that may not be obtained via 42
U.S.C. § 1983; and (2) as to the demand for money
damages arising from the allegedly unlawful prosecution and
incarceration, the complaint fails to state any plausible
claim for relief.
as to the plaintiff's demand for an order directing the
defendants immediately to release him from custody, section
1983 is not a proper vehicle for obtaining that relief; a
petition for a writ of habeas corpus properly filed under the
authority 28 U.S.C. § 2254 or § 2241 offers the
sole avenue for seeking release from allegedly unlawful
detention by state officials. “Generally a prisoner in
state custody cannot use a § 1983 action to challenge
the fact or duration of his confinement.”
Wershe, 763 F.3d at 504 (citing Wilkinson v.
Dotson, 544 U.S. 74, 78 (2005); Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973)) (quotation marks
omitted). “Where the relief sought is ‘a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, ' the prisoner
must pursue relief through a writ of habeas corpus, not
through § 1983.” Ibid. (quoting
Preiser, 411 U.S. at 500); Hill v.
McDonough, 547 U.S. 573, 579 (2006)
(“‘Challenges to the validity of any confinement
or to particulars affecting its duration are the province of
habeas corpus.'” (quoting Muhammad v.
Close, 540 U.S. 749, 750 (2004))).
as to the demand for money damages premised on an allegedly
unlawful prosecution, conviction, and present detention, the
complaint does not allege that the conviction at issue has
been set aside or invalidated by any state or federal
authority. In order to recover monetary damages for an
allegedly unconstitutional conviction or imprisonment, a
plaintiff seeking relief via 42 U.S.C. § 1983 must show
that the conviction or sentence was reversed on direct
appeal, expunged by an executive order, invalidated 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, 486-487 (1994); see also Alkire v. Irving,
330 F.3d 802, 816, n.10 (6th Cir. 2003). Because the
plaintiff does not allege that his conviction was overturned,
expunged, or called into question by a writ of habeas corpus,
his claims premised on the purportedly illegal prosecution,
conviction, and incarceration do not present any plausible
claim on which relief may be granted. Adams v.
Morris, 90 F. App'x. 856, 858 (6th Cir. 2004);
Dekoven v. Bell, 140 F.Supp.2d 748, 756 (E.D. Mich.
complaint fails to state any plausible claim for relief under
42 U.S.C. § 1983, and it therefore must be dismissed
under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
it is ORDERED that the complaint is
DISMISSED WITH PREJUDICE.
further ORDERED that the plaintiff's
motion for service of the summons ...