United States District Court, E.D. Michigan, Southern Division
MICHAEL A. KITCHEN, Plaintiff,
RICHARD SNYDER, HEIDI WASHINGTON, and MICHAEL EAGEN, Defendants.
Anthony P. Patti Magistrate Judge
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO
DISMISS AND FOR SUMMARY JUDGMENT 
J. MICHELSON UNITED STATES DISTRICT JUDGE
1987, when Michael Kitchen was 17 years old, he was convicted
of felony firearm, armed robbery, and criminal sexual
conduct. Kitchen was sentenced to 42 to 60 years in prison.
Whether Kitchen will spend closer to 42 years in prison or
closer to 60 years in prison is in the hands of
Michigan's parole board. But under Michigan Compiled Laws
§ 791.234, Kitchen cannot even come before the board
until he completes his minimum sentence, i.e., until he has
served 42 years in prison (less good-time credits he's
earned). Currently, that is slated for November 2026; Kitchen
will be 57 years old.
believes that § 791.234 is unconstitutional as applied
to him. He stresses that he committed the offenses leading to
his sentence when he was only 17 years old. Yet, says
Kitchen, § 791.234 does not distinguish between those
who committed crimes as adults and those who committed crimes
as minors. In other words, § 791.234 fails to account
for what the Supreme Court calls the “mitigating
qualities of youth, ” Miller v. Alabama, 567
U.S. 460, 476 (2012). Thus, Kitchen says that § 791.234
violates the Federal Constitution in three ways and the
Michigan Constitution in one. (See ECF No. 20,
PageID.123-125.) As relief, Kitchen would like the Court to
declare § 791.234 unconstitutional as applied to him; he
would also like parole evaluation earlier than someone
serving a like sentence but who committed the underlying
crime as an adult. (See ECF No. 20, PageID.126.)
the three defendants, Heidi Washington (the Director of the
Michigan Department of Corrections) and Michael Eagen (the
Parole Board Chairperson), ask the Court to dismiss
Kitchen's complaint for lack of subject-matter
jurisdiction. (ECF No. 15.) For this argument, they point to
Heck v. Humphrey, 512 U.S. 477 (1994). Washington
and Eagan also seek summary judgment under Rule 56, primarily
asserting that People v. Wines, 916 N.W.2d 855
(Mich. Ct. App. 2018), precludes Kitchen's claims.
reasons that follow, Washington and Eagen's motion will
turning to the merits of Defendants' Heck
argument, the Court notes that Defendants may not have used
the correct procedural vehicle to bring it. While the law is
not entirely uniform, a defendant's argument that a
plaintiff's claim is barred by Heck is probably
not a challenge to subject-matter jurisdiction and probably
should be brought via Rule 12(b)(6). See Ortiz v. New
Jersey State Police, 747 Fed.Appx. 73, 77 (3d Cir.
2018); Topa v. Melendez, 739 Fed.Appx. 516, 518
(11th Cir. 2018); Mendia v. City of Wellington, 432
Fed.Appx. 796, 798 n.1 (10th Cir. 2011); Polzin v.
Gage, 636 F.3d 834, 837-38 (7th Cir. 2011); but see
Spencer v. Gidley, No. 15-11822, 2015 WL 4642904, at *4
(E.D. Mich. Aug. 4, 2015). Here, though, the Rule 12(b)(1) or
12(b)(6) distinction does not matter-Defendants'
Heck argument does not warrant dismissal.
Defendants' argument is as follows. Kitchen challenges a
statute that provides (in relevant part), “a prisoner
sentenced to an indeterminate sentence and confined in a
state correctional facility with a minimum in terms of years
. . . is subject to the jurisdiction of the parole board when
the prisoner has served a period of time equal to the minimum
sentence imposed by the court . . . less good time and
disciplinary credits, if applicable.” Mich. Comp. Laws
§ 791.234(1). Given that § 791.234 equates a
prisoner's minimum-sentence end date with the first date
he is eligible for parole review, Defendants argue that by
asking for an earlier parole-evaluation date, Kitchen is
seeking to shorten his minimum sentence. But under
Heck, “a prisoner in state custody cannot use
a § 1983 action to challenge the . . . duration of his
confinement.” Wilkinson v. Dotson, 544 U.S.
74, 78 (2005). So, Defendants' conclude, Kitchen's
constitutional challenges brought via § 1983 are
argument has some legal and factual support.
with legal. In Preiser v. Rodriguez, 411 U.S. 475
(1973), the Supreme Court explained that when a prisoner
seeks release from unlawful imprisonment, a petition for a
writ of habeas corpus under 28 U.S.C. § 2254 is the
better tool than a complaint under 42 U.S.C. § 1983.
After all, the language of § 2254 is tailored to
challenges of unlawful imprisonment, a petition for a writ of
habeas corpus is the traditional means of challenging
unlawful custody, and a petition for a writ requires
exhaustion, which in turn, respects state sovereignty.
See Preiser, 411 U.S. at 486, 490- 491;
Wilkinson, 544 U.S. at 78-79. Indeed, in
Wilkinson, Justice Kennedy asserted that “it
is elementary that habeas is the appropriate remedy for
challenging a sentence, ” 544 U.S. at 88, and the
majority apparently agreed with Justice Kennedy on this
point, id. at 83.
Kitchen at least indirectly challenges his sentence. To be
sure, Kitchen directly challenges only the
parole-jurisdiction statute, § 791.234. But a premise of
Kitchen's challenge is that his sentencing judge did not
consider his youth and maturity in imposing a 42-year minimum
sentence. For, if the sentencing judge did consider
Kitchen's youth and maturity in setting the 42- year
minimum sentence, it is difficult to see how § 791.234
deprives Kitchen of any constitutional right: his youth would
have already been factored into his parole-eligibility date.
that legal and factual support for Defendants' position,
the Court still finds that Kitchen is not required to bring
his federal constitutional claims via a petition for a writ
of habeas corpus and that Heck does not bar
Kitchen's § 1983 complaint. In Wilkinson,
William Dotson and Rogerico Johnson filed a suit via §
1983; Dotson sought an order “requiring prison
officials to grant him an ‘immediate parole
hearing'”; Johnson likewise sought “a new
parole hearing.” 544 U.S. at 77. The Supreme Court
explained that success for Dotson would “not mean
immediate release or a shorter stay in prison; it [would]
mean at most new eligibility review, which may speed
consideration of a new parole application.”
Id. at 75. And the same was true for Johnson:
“Success for Johnson means at most a new parole hearing
at which parole authorities may, in their discretion, decline
to shorten his prison term.” Id.
“Because neither prisoner's claim would necessarily
spell speedier release, neither lies at ‘the core of
habeas corpus.'” 544 U.S. at 75. As such, Dotson
and Johnson could proceed under § 1983 rather than
§ 2254. Id. at 76; see also Hill v.
Snyder, 878 F.3d 193, 209 (6th Cir. 2017) (finding that
prisoners' successful challenge to parole-consideration
process would not necessarily result in less time in prison
because parole board could still deny parole).
coupled with Michigan's indeterminate sentencing scheme
carries the day for Kitchen. Even if Kitchen's direct
attack on § 791.234 is an indirect attack on his 42-year
minimum sentence, a successful attack will not necessarily
speed Kitchen's release from prison. Suppose
Kitchen's § 1983 complaint results in a new minimum
sentence where he is given a 34-year minimum. That would only
mean that Kitchen would immediately come within the parole
board's jurisdiction. Yet the parole board could deny
parole and, ultimately, Kitchen could be forced to serve his
maximum sentence, 60 years. So success here-even if that
success comes in the form of a new, shorter minimum
sentence-would not necessarily speed Kitchen's
release. That would all depend on what the parole board does.
As such, Heck does not preclude Kitchen from
pursuing his federal constitutional claims via § 1983.
See Wershe v. Combs, 763 F.3d 500, 504 (6th Cir.
2014) (“Because success in his § 1983 claim ...