United States District Court, W.D. Michigan, Southern Division
DOUGLAS P. BUSH, Plaintiff,
8TH CIRCUIT COURT, Defendant.
L. MALONEY UNITED STATES DISTRICT JUDGE
a civil action brought by a state prisoner, ostensibly
pursuant to Federal Rule of Civil Procedure 60(d)(3).
Plaintiff has paid the full civil action filing fee. Under
the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (1996) (PLRA), the Court is required to dismiss
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. 28 U.S.C. §
1915A. The Court must read Plaintiff's pro se
complaint indulgently, see Haines v. Kerner, 404
U.S. 519, 520 (1972), and accept Plaintiff's allegations
as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). Applying these standards, the Court will dismiss
Plaintiff's complaint against Defendants 8th Circuit
Court for failure to state a claim.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Alger Correctional Facility (LMF)
in Munising, Alger County, Michigan. Plaintiff sues 8th
Circuit Court of Michigan (Montcalm and Ionia Counties),
arguing that he is entitled to relief from his conviction and
sentence under Federal Rule of Civil Procedure 60(d)(3).
currently is serving a prison term of 3 years and 9 months to
20 years, imposed in 2001 by the 8th Circuit Court after a
jury convicted Plaintiff of one count of first-degree
criminal sexual conduct involving a person under 13 years
(CSC I), Mich. Comp. Laws § 750.520b(1)(A). Plaintiff
consistently has maintained his innocence. He previously has
made numerous attempts to be relieved from his conviction and
sentence or to be released on parole. Plaintiff has filed
five habeas corpus actions. In the first, Bush v.
Renico, 2:04-cv-74609 (E.D. Mich. Oct. 4, 2005), the
district court denied the petition, following a full review
of the state-court record. Id. (ECF Nos. 36-37).
Nearly five years after the case was dismissed, Plaintiff
filed a motion under Fed.R.Civ.P. 60(d)(3), challenging, as
he does in this action, the misrepresentation of a
juror's identity and profession. The district court
transferred the case to the Sixth Circuit on November 23,
2010, on the grounds that it was a second or successive
petition. (No. 2:04-cv-74609, ECF No. 53). The Sixth Circuit
subsequently denied leave to file a second or successive
petition on September 12, 2011. (No. 2:04-cv-74609, ECF No.
filed four additional habeas actions challenging his
convictions or continuing confinement in 2013,  all of which were
dismissed or transferred to the Sixth Circuit. See Bush
v. Rivard, No. 1:13-cv-142 (W.D. Mich. Apr. 29, 2013)
(denying challenge to parole denial); Bush v.
Thrall, No. 1:13-cv-314 (W.D. Mich. June 6, 2013)
(transferring to Sixth Circuit as second or successive
challenge to conviction); Bush v. Michigan Court of
Appeals, 1:13-cv-386 (W.D. Mich. May 6, 2013)
(transferring to Sixth Circuit an action ostensibly filed
under Fed.R.Civ.P. 60(d)(3) for fraud on the court); Bush
v. Rivard, No. 1:13-cv-568 (W.D. Mich. Aug. 5, 2013)
(denying petition as either second or successive or an
improper challenge to the legality of the Court's
disposition of earlier actions attacking his parole denials
and claims of fraud upon the court).
addition, Plaintiff filed two civil actions related to his
confinement that, like this action, were not filed as habeas
corpus proceedings. See Bush v. Heyns et al., No.
1:13-cv-347 (W.D. Mich. Apr. 29, 2013) (dismissing complaint
challenging the denial of parole); Bush v. Marfori,
No. 1:06-cv-524 (W.D. Mich. Jan. 8, 2007) (dismissing
complaint that challenged the accuracy of testimony used in
his criminal trial).
claims, as he has in some of his prior cases, that his 2001
criminal conviction in the 8th Circuit Court of Michigan was
obtained by way of a fraud upon the court. He asserts that
some of the jurors were biased. Plaintiff makes specific
allegations about one juror, whom he claims fraudulently
misidentified himself and his profession during voir dire by
stating that he was a tool and die worker when he was in fact
an employee at the jail where Plaintiff was housed. Plaintiff
references his own testimony and the exhibits introduced at a
sentencing hearing in the Southern District of Ohio, when
Plaintiff was attempting to explain how he came to send a
threatening communication to a Sixth Circuit judge. See
United States v. Bush, No. 1:14-cr-80 (S.D. Ohio)
(1:14-cr-80, ECF No. 44). In his complaint, Plaintiff also
claims that the misidentified juror conspired with the
prosecutor, the judge, and defense counsel to knowingly allow
the falsely identified juror to serve on the jury.
contends that the juror's misidentification amounted to a
fraud upon the court in his criminal proceeding. He argues
that he was denied his rights under the Due Process Clause
and convicted on the basis of insufficient evidence. In
addition, he contends that the fraud violated his rights to
equal protection and to access the courts. Plaintiff suggests
that the fraud also violated state tort law and constituted
obstruction of justice. Plaintiff does not specify the relief
he seeks, but he challenges the validity of his conviction
and his continued incarceration.
Failure to state a claim
complaint may be dismissed for failure to state a claim if it
fails “‘to give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain
detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). The
court must determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 679. Although the plausibility standard is not equivalent
to a “‘probability requirement, ' . . . it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - that the
pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding
that the Twombly/Iqbal plausibility standard applies
to dismissals of prisoner cases on initial review under 28
U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the federal
Constitution or laws and must show that the deprivation was
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Street
v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself,
the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
complaint constitutes the latest of his many challenges to
his incarceration by the State of Michigan. A challenge to
the fact or duration of confinement should be brought as a
petition for habeas corpus and is not the proper subject of a
civil rights action brought pursuant to § 1983. See
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (the
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody and the traditional
function of the writ is to secure release from illegal
custody). Therefore, to the extent that Plaintiff's
complaint challenges the fact or duration of his
incarceration, it must be dismissed. See Adams v.
Morris, 90 Fed.Appx. 856, 858 (6th Cir. 2004) (dismissal
is appropriate where § 1983 action seeks equitable
relief and challenges fact or duration of confinement);
see also Moore v. Pemberton, 110 F.3d 22, 23-24 (7th
Cir. 1997) (reasons for not construing a § 1983 action
as one seeking habeas relief include (1) potential
application of Heck ...