Davis v. Washington

Filing 5

OPINION AND ORDER denying complaint and transferring case to USCA for the Sixth Circuit. Signed by District Judge Arthur J. Tarnow. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEON DAVIS,

Plaintiff,

Civil Action No. 2:11-14701
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT

v.
WARDEN H. WASHINGTON,
Defendant,
________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S CIVIL RIGHTS COMPLAINT AND
TRANSFERRING CASE TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. §
2244(b)(3)(A)
I. Introduction
The Court has before it Plaintiff Leon Davis’ pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983. Plaintiff is a state prisoner currently confined at the
Charles Egeler Reception and Guidance Center Annex in Jackson, Michigan. For the
reasons stated below, the Court will deny plaintiff’s civil rights complaint, because it fails
to state a claim upon which relief can be granted. This Court further construes plaintiff’s
action as a second or successive petition for habeas relief and will transfer the matter to
the United States Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) for
authorization to file a second or successive habeas petition.
II. Standard of Review
Plaintiff has been allowed to proceed without prepayment of fees. See 28 §
U.S.C. 1915(a); McGore v. Wrigglesworth, 114 F. 3d 601, 604 (6th Cir. 1997). However,
28 U.S.C. § 1915(e)(2)(B) states:

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Davis v. Washington, U.S.D.C. 11-14701
Notwithstanding any filing fee, 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 is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32
(1992). “A complaint lacks an arguable basis in law or fact if it ... is based on legal
theories that are indisputably meritless.” Brown v. Bargery, 207 F. 3d 863, 866 (6th Cir.
2000)(citing Neitzke, 490 U.S. at 327-28). A complaint fails to state a claim “if it
appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim
that would entitle him to relief.” Brown, 207 F. 3d at 867. Sua sponte dismissal is
appropriate if the complaint lacks an arguable basis when filed. McGore, 114 F. 3d at
612.
A pro se litigant’s complaint is to be construed liberally, Middleton v. McGinnis,
860 F. Supp. 391, 392 ( E.D. Mich.1994)(citing Estelle v. Gamble, 429 U.S. 97, 106
(1976)); that is, they are held to a “less stringent standard” than those drafted by
attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Such complaints, however,
must plead facts sufficient to show a legal wrong has been committed from which
plaintiff may be granted relief. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F. Supp. 2d
748, 755 (E.D. Mich.2001).

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Davis v. Washington, U.S.D.C. 11-14701
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff
must establish that: (1) the defendant acted under color of state law; and (2) the
offending conduct deprived the plaintiff of rights secured by federal law. Bloch v. Ribar,
156 F. 3d 673, 677 (6th Cir.1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “If
a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must
fail.” Redding v. St. Eward, 241 F. 3d 530, 532 (6th Cir. 2001).
III. Complaint
Plaintiff’s complaint is difficult to understand but it appears that plaintiff alleges
that he was wrongfully convicted of second-degree murder and possession of firearm in
the commission of a felony based upon a suggestive identification procedure. Plaintiff
also alleges that the trial judge violated the Ex Post Facto Clause of the United States
Constitution. Plaintiff also appears to argue that he has wrongly been denied federal
habeas relief from his conviction. Plaintiff seeks punitive damages and possibly
injunctive relief.
.

IV. Discussion
Plaintiff is unable to obtain monetary damages arising from his conviction absent

a showing that his criminal conviction had been overturned. To recover monetary
damages for an allegedly unconstitutional conviction or imprisonment, a § 1983 plaintiff
must prove that the conviction or sentence was reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal, or called into question by the
issuance of a federal writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487
(1994).
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Davis v. Washington, U.S.D.C. 11-14701
Because plaintiff does not allege that his conviction has been overturned,
expunged, or called into question by a writ of habeas corpus, his allegations relating to
his criminal prosecution, conviction, and incarceration, against the defendant fail to state
a claim for which relief may be granted and must, therefore, be dismissed. See Adams
v. Morris, 90 Fed. Appx. 856, 858 (6th Cir. 2004); Dekoven v. Bell, 140 F. Supp. 2d 748,
756 (E.D. Mich. 2001).
When a prisoner’s civil rights claim is barred by the Heck v. Humphrey doctrine,
the appropriate course for a federal district court is to dismiss the claim for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), rather than to dismiss the
complaint with prejudice as being frivolous, because the former course of action is not
an adjudication on the merits and would allow the prisoner to reassert his claims if his
conviction or sentence is latter invalidated. See Murphy v. Martin, 343 F. Supp. 2d 603,
609 (E.D. Mich. 2004). Therefore, because this Court is dismissing plaintiff’s § 1983
complaint under Heck, the dismissal will be without prejudice. See e.g. Finley v.
Densford, 90 Fed. Appx. 137, 138 (6th Cir. 2004).
To the extent that plaintiff is seeking to have his criminal conviction vacated or
set aside, his appropriate federal remedy would be to file a petition for writ of habeas
corpus. Where a state prisoner is challenging the very fact or duration of his or her
physical imprisonment and the relief that he or she seeks is a determination that he or
she is entitled to immediate release or a speedier release from that imprisonment, his or
her sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411
U.S. 475, 500 (1973).
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Davis v. Washington, U.S.D.C. 11-14701
Petitioner has already challenged his 2002 conviction for second-degree murder
and felony firearm, which was denied on the merits. See Davis v. Jackson, U.S.D.C. No.
2:05-CV-72236; 2007 WL 614183 (E.D. Mich. February 26, 2007); appeal dism.
U.S.D.C. No. 07-1340 (6th Cir. October 16, 2007). Petitioner has subsequently been
denied permission by the United States Court of Appeals for the Sixth Circuit to file a
successive petition to challenge this conviction. In Re Davis, U.S.D.C. No. 10-1866 (6th
Cir. May 12, 2011).
Before a second or successive habeas petition is filed in a federal district court, a
habeas petitioner shall move in the appropriate court of appeals for an order authorizing
the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142
F.3d 939, 940 (6th Cir. 1998). Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a federal district court does not have jurisdiction to entertain a successive
post-conviction motion or petition for writ of habeas corpus in the absence of an order
from the court of appeals authorizing the filing of such a successive motion or petition.
See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 825-26 (E.D. Mich. 2004). Unless the
Sixth Circuit Court of Appeals has given its approval for the filing of a second or
successive petition, a district court in the Sixth Circuit must transfer the petition to the
Sixth Circuit Court of Appeals no matter how meritorious the district court believes the
claim to be. Id. at 826; See also In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997). This
requirement transfers to the court of appeals a screening function which the district
court previously would have performed. Felker v. Turpin, 518 U.S. 651, 664 (1996).

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Davis v. Washington, U.S.D.C. 11-14701
A habeas petitioner’s motion or filing should be construed as a second or
successive habeas petition where “[t]he motion’s factual predicate deals primarily with
the constitutionality of the underlying state [or federal] conviction or sentence.” In Re
Abdur’Rahman, 392 F.3d 174, 181 (6th Cir. 2004) (citing Rodwell v. Pepe, 324 F.3d 66,
70 (1st Cir. 2003)). Where a prisoner’s motion or filing is the functional equivalent of a
second or successive habeas petition, he or she must obtain permission from the court
of appeals before bringing such an action in the district court. See e.g. Long v.
Commonwealth of Kentucky, 80 Fed. Appx. 410, 414 (6th Cir. 2003)(The provisions of
28 U.S.C. § 2244(b) apply equally to habeas petitions filed by a state prisoner under 28
U.S.C. § 2241, the general habeas statute); Byrd v. Bagley, 37 Fed. Appx. 94, 95 (6th
Cir. 2002)(same). To the extent that plaintiff’s civil rights complaint is the equivalent of a
second or successive habeas petition, it must be transferred to the Sixth Circuit for a
certificate of authorization pursuant to § 2244(b)(3)(A).
V. ORDER
IT IS HEREBY ORDERED that plaintiff’s civil rights complaint is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of the Court transfer this case to the
United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631, 28

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Davis v. Washington, U.S.D.C. 11-14701
U.S.C. § 2244(b)(3)(A) and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997), for a
determination of whether plaintiff should be permitted to file a subsequent habeas
petition.

S/Arthur J. Tarnow
Arthur J. Tarnow
United States District Judge
Dated: November 9, 2011
I hereby certify that a copy of the foregoing document was served upon parties/counsel
of record on November 9, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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