Peay v. Page et al

Filing 5

OPINION and ORDER OF SUMMARY DISMISSAL. Signed by District Judge Denise Page Hood. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ORLANDO PEAY, #325314,
Plaintiff,
CASE NO. 2:11-CV-12234
HONORABLE DENISE PAGE HOOD

v.
MR. PAGE, et al.,
Defendants.
____________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL
I.

Introduction
The Court has before it Michigan prisoner Orlando Peay’s pro se civil rights complaint filed

pursuant to 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed without prepayment of
the filing fee for this action. In his Complaint, Plaintiff challenges the validity of his state criminal
convictions, raising allegations of perjury and false evidence, the withholding of evidence, the
failure to investigate, obstruction of justice, and his actual innocence. He names as defendants
several state prosecutors, several Detroit police officers, an EMS technician, a medical examiner and
pathologist, several defense attorneys, and two state court judges. He sues Defendants in their
official and individual capacities, and seeks monetary damages and immediate release from custody.
Having reviewed the complaint, the Court dismisses it pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b) 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 from this decision would be frivolous and cannot be taken
in good faith.
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II.

Legal Standards
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). The purpose of this rule is to “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed. R. Civ. P.
8(a)(2)). While this notice pleading standard does not require “detailed” factual allegations, it does
require more than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule 8
“demands more than an unadorned, the defendant-unlawfully-harmed me accusation.” Ashcroft v.
Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949 (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). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court is required to sua
sponte dismiss an in forma pauperis complaint before 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. § 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. See 28 U.S.C. § 1915A(b). A complaint is frivolous if it lacks an

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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 claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he 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. See Flagg Bros. v.
Brooks, 436 U.S. 149, 155-57 (1978); see also Harris v. Circleville, 583 F.3d 356, 364 (6th Cir.
2009). Additionally, a plaintiff must allege that the deprivation of his rights was intentional, not
merely negligent. See Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S.
327, 333-36 (1986). A pro se civil rights complaint is to be construed liberally. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). Having reviewed the pleadings with this standard in mind,
the Court finds that Plaintiff’s complaint is subject to summary dismissal.
III.

Analysis
Plaintiff’s complaint, which lists conclusory claims of perjury and false evidence, the

withholding of evidence, the failure to investigate, obstruction of justice, and actual innocence, is
subject to dismissal because Plaintiff challenges his state court criminal proceedings and resulting
convictions. This 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 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 invalid, until and unless the reason for his
continued confinement has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal, or has been called into question by a federal court’s issuance of 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). The underlying
basis for the holding in Heck is that “civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486.
Even if Plaintiff’s claims were not barred by Heck, they would still be subject to dismissal
for failure to state a claim upon which relief may be granted. Plaintiff’s claims of perjury and false
evidence, the withholding of evidence, the failure to investigate, obstruction of justice, and actual
innocence are conclusory. It is well-established that conclusory allegations are insufficient to state
a civil rights claim under § 1983. See Maldowan v. City of Warren, 578 F.3d 351, 390-91 (6th Cir.
2009) (dismissing malicious prosecution claim where plaintiff made only vague and conclusory
allegations of false evidence); Lanier v. Bryant, 332 F.3d 999, 1007 (6th Cir. 2003); see also Iqbal,
129 S. Ct. at 1948-49; Twombly, 550 U.S. at 555-57; Crawford-El v. Britton, 523 U.S. 574, 588
(1998).
Plaintiff’s claims against the defense attorneys must also be dismissed because they are not
proper defendants in a civil rights action brought pursuant to § 1983. It is well-settled that retained
or appointed 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. See Polk Co. v. Dodson, 454 U.S.

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312, 317-18 (1981); Elrod v. Michigan Supreme Ct., 104 F. App’x 506, 508 (6th Cir. 2004).
Plaintiff’s claims against the defense attorneys must therefore be dismissed for this additional
reason.
Plaintiff’s claims for monetary damages against several defendants are also subject to
dismissal based upon immunity. Plaintiff sues several state employees, including the prosecutors
and judges, in their official capacities for damages. Such claims are barred by sovereign immunity.
The Eleventh Amendment bars civil rights actions against a state and its agencies and departments
unless the state has waived its immunity and consented to suit or Congress has abrogated that
immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). Eleventh
Amendment immunity also applies to state employees who are sued in their official capacities. See
Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344
(6th Cir. 2009)). The State of Michigan has not consented to be sued for civil rights actions in
federal court, Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986), and Congress did not abrogate
Eleventh Amendment immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 341
(1979). The Michigan courts operate as arms of the state, and are entitled to the same sovereign
immunity as the State of Michigan. See Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 762-64 (6th Cir.
2010); see also Chambers v. Michigan, No. 10-12509, 2011 WL 940830, *3-4 (E.D. Mich. March
16, 2011); Young v. District & Supreme Cts. of Mich., No. 2:10-CV-15144, 2011 WL 166331, *2
(E.D. Mich. Jan. 18, 2011) (citing cases). Such sovereign immunity extends to judges and
prosecutors in the Michigan courts who are sued in their official capacities. See Pucci, 628 F.3d at
764; Cady, 574 F.3d at 342-45. The state prosecutors and judges are entitled to Eleventh
Amendment immunity and Plaintiff’s claims against them in their official capacities for damages
must be dismissed.

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The prosecutors are also entitled to absolute immunity on Plaintiff’s claims against them in
their individual capacities for damages. It is well-established that prosecutors are entitled to
absolute immunity for conduct intimately associated with the judicial phase of the criminal process.
See Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Higgason v. Stephens, 288 F.3d 868, 878 (6th
Cir. 2002); see also Van de Kamp v. Goldstein, _ U.S. _, 129 S. Ct. 855, 861 (2009). This immunity
covers a prosecutor’s decision to file a criminal complaint. See Ireland v. Tunis, 113 F.3d 1435,
1446 (6th Cir. 1997). It also applies even when a prosecutor acts wrongfully or maliciously. See
Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989) (prosecutor absolutely immune from suit
for allegedly conspiring to present false charges to the grand jury). The prosecutors are entitled to
absolute prosecutorial immunity on any personal claim for damages arising from their actions as
advocates in Plaintiff’s criminal proceedings.
The judges are similarly entitled to such 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); Bush
v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994).1 Plaintiff’s claims against the defendant judges concern
the performance of their judicial duties. They are entitled to absolute immunity on any personal
claim for damages arising from such conduct.

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The Court notes that the 1996 amendments to § 1983 extended absolute immunity for state
judges 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 also Kipen v. Lawson, 57 F. App’x 691 (6th Cir. 2003) (discussing
federal judges’ immunity); Kircher v. City of Ypsilanti, 458 F. Supp. 2d 439, 446-47 (E.D. Mich.
2006); accord Asubuko v. Royal, 443 F.3d 302, 304 (3d Cir. 2006); Hass v. Wisconsin, 109 F.
App’x 107, 113-14 (7th Cir. 2004); Bolin v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000).
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IV.

Conclusion
The Court concludes that Plaintiff has failed to state a claim upon which relief may be

granted under 42 U.S.C. § 1983 in his complaint, that the defense attorneys are not state actors
subject to suit under § 1983, and that the prosecutors and judges are entitled to immunity on
Plaintiff’s claims for damages. Accordingly, the Court DISMISSES his civil rights complaint
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). The Court further concludes that an appeal
from this order would be frivolous and 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 SO ORDERED.

s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: June 23, 2011
I hereby certify that a copy of the foregoing document was served upon Orlando Peay #325314,
34625 26 Mile Road, New Haven, MI 48048 and counsel of record on June 23, 2011, by electronic
and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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