United States District Court, E.D. Michigan, Southern Division
Basil A. Perry, Plaintiff,
Asad Farah, et al., Defendant.
R. Grand Mag. Judge.
OPINION AND ORDER OF SUMMARY DISMISSAL
E. LEVY UNITED STATES DISTRICT JUDGE.
a pro se civil rights case brought pursuant to 42 U.S.C.
§ 1983. Michigan parolee Basil A. Perry
(“Plaintiff”), currently residing in Jamaica,
challenges the validity of his state criminal proceedings and
time in state custody. Plaintiff was convicted of four counts
of third-degree criminal sexual conduct and one count of
child sexually abusive material or activity, following a jury
trial in the Monroe County Circuit Court. He was sentenced as
a third habitual offender to concurrent terms of 10 to 30
years imprisonment and 10 to 40 years imprisonment on those
convictions on April 27, 2006. Plaintiff was released on
parole on August 30, 2018, with a supervision discharge date
of August 30, 2020. See Offender Profile, Michigan
Department of Corrections (“MDOC”) Offender
Tracking Information System (“OTIS”),
Plaintiff names criminal defense attorneys, Asad Farah and
John Landis, probation officer Jeff Finley, and witness Ann
Redding, as the defendants in this action and seeks monetary
damages and other relief. The Court has granted Plaintiff
leave to proceed without prepayment of the filing fee. For
the reasons set forth below, the civil rights complaint must
be dismissed, and an appeal cannot be taken in good faith.
the Prison Litigation Reform Act of 1996
(“PLRA”), the Court is required to dismiss a
complaint brought in forma pauperis-without prepayment of
fees-before service on a defendant if the action is frivolous
or malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C.
§ 1915(e)(2)(B). The Court is similarly required to
dismiss a complaint seeking redress against government
entities, officers, and employees which it finds to be
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A. A complaint is frivolous if it lacks an arguable basis
either in law or in fact. Denton v. Hernandez, 504
U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S.
319, 325 (1989).
rights complaint brought without the assistance of counsel is
to be construed liberally. Haines v. Kerner, 404
U.S. 519, 520-21 (1972). Nonetheless, Federal Rule of Civil
Procedure 8(a) requires that a complaint set forth “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” as well as “a
demand for the relief sought.” Fed.R.Civ.P. 8(a)(2),
(3). While plaintiff is not required to include
“detailed” factual allegations, his complaint
must include more than a bare assertion of legal principles
or conclusions. Id. Rule 8 “demands more than
an unadorned, the defendant-unlawfully-harmed me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) he or she was deprived of a right,
privilege, or immunity secured by the Federal Constitution or
laws of the United States; and (2) the deprivation was caused
by a person acting under color of state law. Harris v.
Circleville, 583 F.3d 356, 364 (6th Cir. 2009).
challenges the validity of his state criminal convictions in
his civil rights complaint, essentially alleging that his
criminal defense attorneys failed to properly represent him,
that the probation officer failed to properly communicate
with him and the court, and that the witness lied at trial. A
claim under § 1983 is an appropriate remedy for a state
prisoner challenging a condition of imprisonment, Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973), not the validity
of continued confinement. Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). This holds true regardless of the relief
sought by the plaintiff. Id. at 487-89.
Heck and other Supreme Court cases, when
“taken together, indicate that a state prisoner's
§ 1983 action is barred (absent prior invalidation) - no
matter the relief sought (damages or equitable relief), no
matter the target of the prisoner's suit (state conduct
leading to conviction or internal prison proceedings) - if
success in that action would necessarily demonstrate the
invalidity of confinement or its
duration.” Wilkinson v. Dotson, 544 U.S. 74,
claims concern the validity of his state criminal proceedings
and the basis for his prior imprisonment and current parole
status. Consequently, success in this action would
demonstrate the invalidity of his convictions and his
continued status on parole and is therefore barred by
claims against defendants Farah and Landis, his criminal
defense attorneys, must also be dismissed because they are
not state actors subject to suit under 42 U.S.C. § 1983.
It is well-settled that appointed and retained attorneys
performing traditional functions as defense counsel do not
act “under color of state law” and are not state
actors subject to suit under § 1983. Polk Co. v.
Dodson, 454 U.S. 312, 318, 325 (1981); Elrod v.
Michigan Supreme Ct., 104 Fed.Appx. 506, 508 (6th Cir.
2004). Plaintiff's complaint against defendants Farah and
Landis must therefore be dismissed for this reason, as well.
claims against defendant Redding are similarly subject to
dismissal. Defendant Redding is a private citizen, not a
state actor, who testified at trial. Consequently, she is not
subject to suit under § 1983. Plaintiff's complaint
against defendant Redding must be dismissed for this reason,
reasons set forth above, plaintiff's civil rights
complaint is barred by Heck and must be dismiss. In
addition, defendants Farah, Landis, and Redding are not state
actors subject to suit under 42 U.S.C. § ...