Gordon v. Michigan Parole Computation Board et al

Filing 7

OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT AND Denying as Moot Plaintiff's Motions for Appointment of Counsel Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDDIE GORDON, #216571,
Plaintiff,
v.

CASE NO. 2:11-CV-15261

MICHIGAN PAROLE BOARD, et al.,
Defendants.
_____________________________________/
OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT AND
DENYING AS MOOT PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL
The court has before it Plaintiff Eddie Gordon’s pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983, as well as his motion for appointment of counsel. Plaintiff
has been granted leave to proceed without prepayment of the filing fee for this action.
(See 12/05/2011 Order, Dkt. # 5.) Plaintiff is a state prisoner currently confined at the
Gus Harrison Correctional Facility in Adrian, Michigan. His complaint concerns his
parole revocation and return to state custody. He names the Michigan Parole Board
and its members as defendants in this action and sues them in their official capacity.
He seeks monetary damages and release from custody. Having reviewed the
complaint, the court finds that it must be summarily dismissed for failure to state a claim
upon which relief may be granted and on the basis of immunity. Further, Plaintiff’s
request for the appointment of counsel is moot in light of the summary dismissal.
I. STANDARD
Under the Prison Litigation Reform Act (“PLRA”), the court is required to sua
sponte dismiss an in forma pauperis complaint before service upon 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
arguable basis in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke
v. Williams, 490 U.S. 319, 325 (1989).
A pro se civil rights complaint is to be construed liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972). Nonetheless, 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)). Rule 8 “demands more than an unadorned, the
defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 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). “Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations and footnote omitted).
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II. DISCUSSION
In his complaint, Plaintiff challenges his parole revocation, essentially claiming
that a police officer testified falsely at the hearing and that such action resulted in the
improper revocation of parole. To state a § 1983 claim, a plaintiff must show that: (1)
the defendant is a person who acted under the 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); see also Harris v. Circleville, 583
F.3d 356, 364 (6th Cir. 2009). Even where a plaintiff satisfactorily pleads these two
elements, a state prisoner challenging his conviction or imprisonment fails to state a
cognizable § 1983 claim if a ruling on his claim would necessarily render his
confinement invalid unless the reason for his continued confinement has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal, or
been called into question by a federal court’s issuance or a writ of habeas corpus under
28 U.S.C. § 2254. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This holds
true regardless of the actual relief sought by the plaintiff. See Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (holding 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”). A state prisoner may, however, maintain a § 1983 action
for procedural challenges to a parole hearing where success in the action would not
necessarily call for an immediate or speedier release from custody. Id.; see also
Thomas v. Eby, 481 F.3d 434, 439-40 (6th Cir. 2007). Here, in addition to seeking
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damages, Plaintiff clearly requests immediate release and discharge from parole. (See
Compl. at 3, Dkt. #1 (“Plaintiff request [sic] to be released immediately”.) Further, the
factual allegations in Plaintiff’s complaint go to the propriety of the parole revocation
decision itself such that ruling in his favor would necessarily demonstrate the invalidity
of his incarceration. Such claims are barred by Heck. See, e.g., Norwood v. Mich.
Dep’t of Corr., 67 F. App’x 286, 287 (6th Cir. 2003); Bolden v. Mich. Dep’t of Corr., No.
2:10-CV-13561, 2010 WL 4609140, *2 (E.D. Mich. Nov. 5, 2010); Bolden v. Holmes,
No. 2:09-CV-11020, 2009 WL 937683, *1-2 (E.D. Mich. April 6, 2009). Accordingly, the
complaint must be dismissed for failing to state a claim upon which relief may be
granted.1

Plaintiff’s complaint is also subject to dismissal on the basis of state sovereign
immunity. Plaintiff sues the Michigan Parole Board and its members in their official
capacities and seeks monetary damages. The Eleventh Amendment bars civil rights
actions against a state and its agencies and departments unless the state has waived
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To the extent that Plaintiff contests the parole revocation procedures by claiming
that he was not given notice of the charges, not informed of the evidence against him,
denied the opportunity to be heard, unable to confront the witnesses against him, and
was not given a written statement of the decision, his claims are conclusory in nature
and fail to satisfy the Twombly pleading standard. It is well-established that such vague
and conclusory allegations fail to state a civil rights claim under 42 U.S.C. § 1983. See
Maldowan v. City of Warren, 578 F.3d 351, 390-91 (6th Cir. 2009); 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).
Moreover, Plaintiff’s claim that he was denied the foregoing procedural rights is
belied by the record. The documents attached to his complaint reveal that he was
notified of the charges, that he attended the revocation hearing, that he had an
opportunity to question witnesses and present evidence in his defense (including his
own testimony), and that he was given written notice of the decision.
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its immunity and consented to suit or Congress has abrogated that immunity. See Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). Eleventh Amendment immunity
“bars all suits, whether for injunctive, declaratory or monetary relief” against a state and
its agencies. Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993). The
State of Michigan has not consented to being sued in civil rights actions in the federal
courts, Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004) (citing Abick v.
Mich., 803 F.2d 874, 877 (6th Cir. 1986)), and Congress did not abrogate state
sovereign immunity when it enacted 42 U.S.C. § 1983. Chaz Const., LLC v. Codell, 137
F. App’x 735, 743 (6th Cir. 2005). Because the Michigan Parole Board is an entity
within the Michigan Department of Corrections, it is entitled to Eleventh Amendment
immunity. See Lee v. Mich. Parole Board, 104 F. App’x. 490, 492 (6th Cir. 2004);
Fleming v. Martin, 24 F. App’x 258, 259 (6th Cir. 2001). Additionally, the parole board
members, who have been sued in their official capacities, are similarly entitled to
Eleventh Amendment immunity.2 See Will, 491 U.S. at 70-71. Plaintiff’s claims for
monetary damages against the Michigan Parole Board and its members must therefore
be dismissed on the basis of sovereign immunity.
III. CONCLUSION

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The court notes that even if Plaintiff were suing the parole board members in their
individual capacities, they would be entitled to immunity from suit on his claim for
damages. Parole board members are absolutely immune from liability for their conduct
in parole cases when they are exercising their decision-making powers. See Horton v.
Martin, 137 F. App’x 773, 775 (6th Cir. 2005).
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Based upon the foregoing analysis, the court concludes that (1) Plaintiff has
failed to state a claim upon which relief may be granted; and (2) the Michigan Parole
Board and its members are entitled to Eleventh Amendment immunity. Accordingly,
IT IS ORDERED that Plaintiff’s complaint [Dkt. # 1] is DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(b) and 1915A.
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel
[Dkt. #3] is DENIED AS MOOT.
Finally, pursuant to 28 U.S.C. § 1915(a)(3), the court concludes that an appeal
from this order would be frivolous and cannot be taken in good faith.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 12, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 12, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\11-15261.GORDON.1915.Dismiss.ctb.wpd

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