Threatt v. Kitchen, et al
Filing
21
ORDER Denying Plaintiff's 20 Motion to Remove Cases as Strikes. Signed by District Judge Gerald E. Rosen. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY THREATT,
Plaintiff,
No. 91-cv-70336
vs.
Hon. Gerald E. Rosen
SYLVESTER KITCHEN and
DEREK WOLFE,
Defendants.
___________________________/
ORDER DENYING PLAINTIFF’S MOTION
TO REMOVE CASES AS STRIKES
I. INTRODUCTION
This prisoner civil rights matter is presently before the Court on Plaintiff’s
“Motion to Remove Cases1 as Strikes to Prevent a Grave Miscarriage of Justice.”
Having reviewed the record of this matter and Plaintiff’s litigation history in the
federal courts, the Court finds no merit in Plaintiff’s motion.
II. DISCUSSION
1
Plaintiff’s handwritten motion referenced two case numbers: the number
assigned to this case and the case number of a case decided in the Western District of
Michigan, Threatt v. Fowley, et al., WDMI No. 91-cv-00033. Plaintiff previously
moved to have these two cases consolidated after both this case and the Western
District’s case had been dismissed. Therefore, the Court denied Plaintiff’s motion to
consolidate. See Threat v. Kitchen, No. 91-70336, Dkt. # 4.
1
Plaintiff Anthony Threatt is a Michigan state prisoner, currently serving a
six-to- twenty-year sentence for aggravated stalking, fourth offense habitual
defender, at the Gus Harrison Correctional Facility in Adrian, Michigan.2
In 1990, Threatt filed the instant action under 28 U.S.C. § 1983 in the
Western District of Michigan, against two Detroit Police Officers, Sylvester
Kitchen and Derek Wolfe, the arresting officers who testified in Threatt’s criminal
case. Threatt claimed in his § 1983 action that the two officers committed perjury
when they testified at his trial. As relief, Threatt sought damages in the amount of
$5,000,000.00. He also sought criminal prosecution of the two officers for
allegedly committing perjury. Venue was subsequently transferred to the Eastern
District of Michigan and the case was assigned to this Court on January 25, 1991.
Finding that Plaintiff’s complaint failed to state a cognizable § 1983 claim, on
February 28, 1991, the Court dismissed the case pursuant to 28 U.S.C. § 1915A.3
2
See People v. Threatt, 254 Mich. App. 504, 504-505, 657 N.W.2d 819, 820
(2002); Michigan Department of Corrections, Offender Tracking Information System
(“OTIS”), http://mdocweb.state.mi.us/OTIS2/otis2.aspx.
3
28 U.S.C. § 1915A provides, in relevant part,
(a) Screening. 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.
(b) Grounds for dismissal. On review, the court shall identify cognizable
2
Shortly thereafter, on March 4, 1991, the District Court for the Western District of
Michigan also dismissed Threatt’s separate § 1983 action for $5,000,000.00
damages against Valory Fowley, the state attorney who prosecuted Threatt, as
frivolous. See Threatt v. Fowley, WDMI No. 91-cv-00033.
A search of court records indicates that Threatt’s cases against the arresting
officers and the prosecutor are not the only cases Plaintiff has filed in the federal
courts. In addition to the two above-discussed cases, Plaintiff has filed no fewer
claims or dismiss the complaint, or any portion of the complaint, if the
complaint -(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
28 U.S.C. § 1915A(a), (b). See also 28 U.S.C. § 1915(e)(2):
(2) Notwithstanding any filing fee paid [pursuant to subsection (b)], 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 was immune
from such relief.
28 U.S.C. § 1915(e)(2)(B).
3
than 17 other Section 1983 civil rights complaints. See Threatt v. Tremble, WDMI
No. 03-00127; Threatt v. Lesatz, WDMI No. 05-00097; Threatt v. Birkett, EDMI
No. 07-11592; Threatt v. Securities Classification Committee, EDMI No. 0712817; Threatt v. Ramey, WDMI No. 09-00248; Threatt v. Capello, WDMI No.
10-00111; Threatt v. Karppinen, WDMI No. 10-00307; Threatt v. Michigan Dept.
of Corrections Parole Board, WDMI No. 10-00335; Threatt v. Rose, WDMI No.
12-00274; Threatt v. Thomas, WDMI No. 12-00277; Threatt v. Perry, WDMI No.
12-00278; Threatt v. Davenport, WDMI 13-00421; Threatt v. Raymond, WDMI
No. 13-00422; Threatt v. Shields, EDMI No. 14-14129; Threatt v. Eyke, WDMI
No. 14-00144; and Threatt v. Williams, EDMI No. 15-12585.4
The court records further indicate that five of Plaintiff’s cases -- Threatt v.
Kitchen, EDMI No. 91-70336 (i.e., this case); Threatt v. Fowley, WDMI No. 9100033; Threatt v. Birkett, EDMI No. 07-11592; Threatt v. Security Classification
Committee, EDMI No. 07-12817; and Threatt v. Ramey, WDMI No. 09-00248 -were dismissed pursuant to § 1915A for being frivolous, malicious, or for failing
to state a claim upon which relief could be granted. As a consequence of these
dismissals, Plaintiff has been denied leave to proceed in forma pauperis pursuant
4
Threatt also filed two habeas corpus actions: Threatt v. Luoma, EDMI No. 03cv-72812, and Threatt v. Birkett, EDMI No. 06-cv-11742
4
to the “three strikes rule,” 28 U.S.C. § 1915(g) in 10 cases: Threatt v. Capello,
WDMI No. 10-00011; Threatt v. Karppinen, WDMI No. 10-00307; Threatt v.
Michigan Dept. of Corrections Parole Board, WDMI No. 10-00335; Threatt v.
Rose, WDMI No. 12-00274; Threatt v. Thomas, WDMI No. 12-00277; Threatt v.
Perry, WDMI No. 12-00278; Threatt v. Davenport, WDMI No. 13-00421; Threatt
v. Raymond, WDMI No. 13000422; Threatt v. Eyke, WDMI No. 14-00144; and
Threatt v. Shields, EDMI No. 14-14129.
Seeking relief from the “three strikes” bar, Plaintiff now moves to have this
case, Threatt v. Kitchen, and the related case he filed in the Western District of
Michigan, Threatt v. Fowley, removed as strikes.
Under the Prison Litigation Reform Act (the “PLRA”), a federal court may
dismiss a prisoner’s case if, on three or more previous occasions, a federal court
dismissed the incarcerated plaintiff’s action because the complaint -- or any part of
it -- was frivolous or malicious or failed to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(g); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th
Cir. 1999); Pointer v. Wilkinson, 502 F.3d 365 (6th Cir. 2007); Witzke v. Hiller,
966 F. Supp. 538, 540 (E.D. Mich. 1997). It matters not whether the dismissals
occurred after or prior to the effective date of PLRA. Wilson v. Yaklich, 148 F.3d
596, 604 (6th Cir. 1998) (dismissals of actions entered prior to the effective date
5
of the PLRA also count toward the “three strikes” referred to in 28 U.S.C. §
1915(g)). This “three strikes” provision of the PLRA prohibits a prisoner who has
had three prior suits dismissed for frivolousness, maliciousness or failure to state a
claim from proceeding in forma pauperis in a civil rights suit unless the prisoner
can show that he is in imminent danger of serious physical injury. See Clemons v.
Young, 240 F. Supp. 2d 639, 641 (E.D. Mich. 2003). A federal district court may
take judicial notice of a plaintiff’s prior dismissals, Green v. Nottingham, 90 F.3d
415, 418 (10th Cir.1996); Anderson v. Sundquist, 1 F. Supp. 2d 828, 830 (W.D.
Tenn.1998), and may sua sponte raise the three strikes provision of the PLRA on
its own initiative. Witzke, supra, 966 F. Supp. at 539.
In seeking to remove cases as strikes, Plaintiff Threatt does not allege any
facts indicating that he faced “imminent danger of serious physical injury”
contemporaneous with the filing of his complaints in Kitchen or Fowley; therefore,
the statutory exception to the three strikes rule is inapplicable.5 Instead, Plaintiff
5
Indeed, the acts about which Plaintiff complained in Kitchen and Fowley
occurred in 2000 - 2001, and the imminent danger exception requires that the
danger exist at the time the complaint was filed. See, Pointer v. Wilkinson, supra,
502 F.3d at 371 n. 1 (citing Malik v. McGinnis, 293 F.3d 559, 562 (2d Cir.2002)
(joining Third, Fifth, Eighth, and Eleventh Circuits in holding that imminent
danger exception requires that the danger exist at time complaint is filed);
Mulazim v. Michigan Dept. of Corrections, 28 F. App’x 470, 472 (6th Cir.2002)
(“An assault that occurred fifteen years ago does not constitute imminent danger
of serious injury.” Id.)
6
argues that when he filed Kitchen and Fowley, he thought he was filing the cases
as habeas corpus petitions under 28 U.S.C. § 2254. Therefore, he claims the cases
should not be subject to the three strikes rule.
While Plaintiff is correct that habeas corpus petitions are not subject to the
“three strikes” rule, see Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.1997)
(dismissals of petitions for writ of habeas corpus are not counted for purposes of
the “three strikes” rule); see also Jennings v. Natrona County Det. Ctr. Med.
Facility, 175 F.3d 775, 780 (10th Cir.1999); Walker v. O'Brien, 216 F.3d 626, 634
(7th Cir.2000), neither Kitchen nor Fowley can properly be construed as habeas
corpus petitions.
The essence of a petition for a writ 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. See Preiser v. Rodriguez, 411 U.S. 475,
484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Accordingly, the proper respondent
(defendant) in a habeas case is the warden of the facility where the prisoner is
being held. Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d
513 (2004). Even a cursory review of Plaintiff’s complaints in Kitchen and
Fowley shows that neither action presents a proper habeas corpus case.
7
First, neither case named the warden as respondent; rather they name the
testifying police officers and the prosecutor of Plaintiff’s criminal case as
defendants. Second, in both cases, Plaintiff sought to hold the defendant police
officer witnesses and the prosecutor liable for $5,000,000.00 each for
committing/conspiring to commit perjury in his criminal prosecution. In Brown v.
Mills, 639 F.3d 733 (6th Cir. 2011), the Sixth Circuit determined that the district
court had properly construed the purported habeas petition as a civil rights
complaint where the inmate alleged constitutional violations in his pleading for
which he sought monetary damages, and accordingly rejected the plaintiff’s
argument that the district court should have construed his complaint, although
filed as a civil rights action, as a habeas corpus petition.
Moreover, in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994), the Supreme Court held that a state prisoner cannot make
a cognizable claim under § 1983 for an allegedly unconstitutional conviction or
for “harm caused by actions whose unlawfulness would render a conviction or
sentence invalid” unless the prisoner shows that the conviction or sentence has
been “reversed on direct appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Id. at 486–87 (footnote
8
omitted). Plaintiff’s allegations of perjured testimony at his criminal trial clearly
call into question the validity of his conviction and he has not shown that his
conviction has been invalidated. Therefore, his action is barred under Heck.
To the extent Plaintiff is challenging the very fact or duration of his physical
imprisonment and the relief that he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. at
500. Section 1983 cannot serve as a basis to challenge the fact of a plaintiff’s
criminal conviction.
Furthermore, the Court cannot convert a Section 1983 matter to a petition
for a writ of habeas corpus. When a suit that should have been brought under the
habeas corpus statute is prosecuted instead as a civil rights suit, it should not be
“converted” into a habeas corpus suit and decided on the merits. Pischke v.
Litscher, 178 F.3d 497, 500 (7th Cir.1999). Instead, the matter should be
dismissed, leaving it to the prisoner to decide whether to refile it as a petition for
writ of habeas corpus. Id. Indeed, Heck clearly directs that once a federal district
court determines that a plaintiff’s claim, if valid, would necessarily imply the
invalidity of his conviction, “the complaint must be dismissed”; it does not direct a
court to construe the civil rights complaint as a habeas petition. Heck, 512 U.S. at
9
487 (emphasis added) See Murphy v. Martin, 343 F. Supp. 2d 603, 610 (E.D.
Mich.2004).
For all of the foregoing reasons, the Court finds no legal basis for
construing or converting Plaintiff’s complaints in Kitchen or Fowley as habeas
petitions. It follows that the Court will decline to remove Kitchen or Fowley as
strikes under the “three strikes” provision of the PLRA, 28 U.S.C. § 1915(g).6
CONCLUSION
For all of the reasons stated above in this Opinion and Order,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remove Cases as
Strikes [Dkt. # 20] is DENIED. The Court also DENIES leave to proceed in
forma pauperis on appeal as an appeal cannot be taken in good faith. FED. R. APP.
P. 24(a).
IT IS SO ORDERED.
s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: September 24, 2015
6
In any event, the Court notes that even if it were to remove these two cases as
strikes, Plaintiff still would be barred from proceeding with further actions ifp as he
would still have three strikes due to the dismissals of Threatt v. Birkett, EDMI No. 0711592; Threatt v. Security Classification Committee, EDMI No. 07-12817; and Threatt
v. Ramey, WDMI No. 09-00248, pursuant to § 1915A for being frivolous, malicious, or
for failing to state a claim upon which relief could be granted.
10
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 24, 2015, by electronic and/or ordinary
mail.
s/Julie Owens
Case Manager, (313) 234-5135
11
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