Scarber v. Berry

Filing 4

OPINION AND ORDER DISMISSING CASE and Concluding That An Appeal Cannot Be Taken In Good Faith Signed by District Judge Victoria A Roberts. (CPin)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MARLON SCARBER, #343088, Plaintiff, v. ANNETTE J. BERRY, Defendant. ______________________________________/ OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT AND CONCLUDING THAT AN APPEAL CANNOT BE TAKEN IN GOOD FAITH I. Introduction Marlon Scarber ("Plaintiff"), a Michigan prisoner, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff's application to proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a). In his complaint, Plaintiff challenges his state criminal proceedings and names Wayne County Circuit Court Judge Annette J. Berry as the sole defendant in this action. Plaintiff requests that he be released from his judgment of sentence and seeks monetary damages. Having reviewed the complaint, the Court dismisses it as frivolous and/or for failure to state a claim upon which relief may be granted and on the basis of immunity. The Court also concludes that an appeal cannot be taken in good faith. II. Discussion Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), the Court is required to sua sponte dismiss an in forma pauperis complaint before CASE NO. 2:09-CV-14991 HONORABLE VICTORIA A. ROBERTS

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service on a defendant if it determines that 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. See 42 U.S.C. § 1997(e)(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 relief from a defendant who is immune from suit. See 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable basis either in law or in fact. See Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a federal civil rights claim, a plaintiff must show that: (1) the defendant is a person who acted under color of state or federal law, and (2) the defendant's conduct deprived the plaintiff of a federal right, privilege, or immunity. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). A pro se civil rights complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jones v. Duncan, 840 F.2d 359, 361 (6th Cir. 1988). Despite the liberal pleading standard accorded pro se plaintiffs, the Court finds that the complaint is subject to summary dismissal. Plaintiff's complaint must be dismissed because he challenges his state court criminal convictions ­ which fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983. A claim under § 1983 is an appropriate remedy for a state prisoner challenging a condition of his imprisonment, see Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), not the validity of his continued confinement. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a state prisoner does not state a cognizable civil rights claim challenging his imprisonment if a ruling on his claim would necessarily render his continuing confinement

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invalid, until and unless the reason for his continued confinement has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into question by a federal court's issuance or a writ of habeas corpus under 28 U.S.C. § 2254). 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, 81-82 (2005). If Plaintiff were to prevail on his claims, the validity of his convictions and his continued confinement would be called into question. Accordingly, such claims are barred by Heck and must be dismissed. Plaintiff's complaint is also subject to dismissal because the defendant, Wayne County Circuit Court Judge Annette J. Berry, is entitled to absolute immunity. Judges and judicial employees are entitled to absolute judicial immunity on claims for damages. See Mireles v Waco, 502 U.S. 9, 9-10 (1991) (per curiam) (judge performing judicial functions is absolutely immune from suit seeking monetary damages even if acting erroneously, corruptly or in excess of jurisdiction); Collyer v. Darling, 98 F.3d 211, 221 (6th Cir. 1996). Moreover, the 1996 amendments to § 1983 extended absolute immunity for state judicial personnel to requests for injunctive or equitable relief. See 42 U.S.C. § 1983 ("in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief is unavailable"); see

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also Kipen v. Lawson, 57 Fed. Appx. 691 (6th Cir. 2003) (discussing federal judges' immunity); Kircher v. City of Ypsilanti, et al., 458 F. Supp. 2d 439, 446-47 (E.D. Mich. 2006) (Rosen, J.); accord Asubuko v. Royal, 443 F.3d 302, 304 (3rd Cir. 2006); Hass v. Wisconsin, et al., 109 Fed. Appx. 107, 113-14 (7th Cir. 2004); Bolin v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000). Allegations arising from Plaintiff's state court criminal proceedings involve the performance of judicial duties. Judge Berry is absolutely immune from suit for such conduct and the claims against her must be dismissed. III. Conclusion For the reasons stated, the Court concludes that Plaintiff has failed to state a claim upon which relief may be granted under 42 U.S.C. § 1983 and that Judge Berry is entitled to absolute immunity. Accordingly, the Court DISMISSES Plaintiff's civil rights complaint. The Court also concludes that an appeal from this order would be frivolous and therefore cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997). IT IS ORDERED. S/Victoria A. Roberts Victoria A. Roberts United States District Judge Dated: December 30, 2009
The undersigned certifies that a copy of this document was served on the attorneys of record and Marlon Scarber by electronic means or U.S. Mail on December 30, 2009. s/Carol A. Pinegar Deputy Clerk

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