Booker v. Dell et al

Filing 13

OPINION AND ORDER Summarily Dismissing the 1 Complaint filed by Kirt Booker and 12 Amended Complaint filed by Kirt Booker. Signed by District Judge Robert H. Cleland. (LWag)

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

KIRT BOOKER, #345215,
Plaintiff,
v.

Case No. 2:13-CV-13635

DELL, et al.,
Defendants.
_____________________________________/
OPINION AND ORDER SUMMARILY DISMISSING
CIVIL RIGHTS COMPLAINT AND AMENDED COMPLAINT
I. INTRODUCTION
The court has before it Plaintiff Kirt Booker’s pro se civil rights complaint and
amended complaint filed pursuant to 42 U.S.C. § 1983. He has been granted leave to
proceed without prepayment of the filing fee. See 28 U.S.C. § 1915(a)(1). Plaintiff, a
state prisoner confined at the Richard A. Handlon Correctional Facility in Ionia,
Michigan, alleges that he gave a corrections officer at the St. Louis Correctional Facility
in St. Louis, Michigan two songs to sell and that the officer sold the songs and kept the
money. Plaintiff also alleges that unidentified white people will not let black women be
college basketball cheerleaders or let black men be football kickers. Lastly, Plaintiff
states that the parole board keeps “flopping” him “for no good reason” and he wants
them to stop and let him go home. Plaintiff seeks monetary damages and other
appropriate relief. Having reviewed the matter, the court concludes that the civil rights
complaint and the amended complaint must be dismissed, and that an appeal from this
decision cannot be taken in good faith.

II. DISCUSSION
Plaintiff has been granted in forma pauperis status. Under the Prison Litigation
Reform Act (“PLRA”), the court is required to sua sponte dismiss an in forma pauperis
complaint before service 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. 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)). While notice pleading does require 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, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels
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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.’” Id. (quoting Twombly, 550
U.S. at 557). “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).
To state a federal civil rights 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. Flagg Bros. v.
Brooks, 436 U.S. 149, 155–57 (1978); Harris v. City of Circleville, 583 F.3d 356, 364
(6th Cir. 2009).
Plaintiff’s first two issues involve songs given to Corrections Officer Dell and the
ability of black women to be college basketball cheerleaders and black men to be
football kickers. Plaintiff has filed two civil rights complaints in this district raising these
same allegations. Both cases were summarily dismissed for failure to state a claim
upon which relief may be granted under § 1983. See Booker v. Dell, No. 5:12-CV14757 (E.D. Mich. Jan. 9, 2013) (O’Meara, J.) (song claims); Booker v. Government,
No. 2:12-CV-15557 (E.D. Mich. Jan. 22, 2013) (Borman, J.) (athletic claims).
Under the res judicata or claim preclusion doctrine, a claim is barred by prior
litigation if the following elements are present: (1) a final decision on the merits by a
court of competent jurisdiction; (2) a subsequent action between the same parties or
their privies; (3) an issue in the subsequent action which was litigated or which should

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have been litigated in the prior action; and (4) identity of the causes of action. See
Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997). In this case, all
four elements are present. Plaintiff’s prior lawsuits were dismissed on the merits by the
court for failure to state an actionable civil rights claim under § 1983. The defendants
appear to be the same. Plaintiff’s present complaint raises the same claims and causes
of action raised in his prior lawsuits. Consequently, Plaintiff’s claims concerning his
songs and perceived racism in athletics are barred by the doctrine of res judicata and
must be dismissed as frivolous. See Butts v. Wilkinson, 145 F.3d 1330, 1998 WL
152778, *1 (6th Cir. 1998) (unpublished) (upholding dismissal of prisoner civil rights
complaint pursuant to 28 U.S.C. § 1915A based upon res judicata doctrine); accord
McWilliams v. State of Colorado, 121 F.3d 573, 574–75 (10th Cir. 1997) (repetitious
litigation of virtually identical causes of action may be dismissed under 28 U.S.C.
§ 1915(e) as frivolous or malicious); Jones v. Warden of Statesville Corr. Ctr., 918 F.
Supp. 1142, 1150 (N.D. Ill. 1995) (dismissal of prisoner action as frivolous given
preclusive effect against similar claims raised in subsequent complaint).
Plaintiff’s final issue in his complaint concerns the parole board “flopping him” for
“no good reason.” This claim is also subject to dismissal. A claim under § 1983 is an
appropriate remedy for a prisoner challenging a condition of his imprisonment. Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973). To the extent that Plaintiff contests a parole
decision, however, he actually seeks habeas corpus relief because such a claim
concerns the validity of his continued confinement, and is not properly brought under
§ 1983. 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 conviction or

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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 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). The United States Supreme Court has
affirmed 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) (emphasis in original).
Because Plaintiff’s challenge to the denial of parole concerns his continued
confinement, and since that decision has not been overturned or otherwise declared
invalid, his claim contesting that decision must be dismissed.1
Further, even if Plaintiff’s parole claim were not barred by Heck, it is nonetheless
subject to dismissal for failure to state a claim upon which relief may be granted under
§ 1983. The Supreme Court has held that there is no right under the United States
Constitution for a lawfully convicted person to be conditionally released before the
expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Corr.
Complex, 442 U.S. 1, 7 (1979). Simply stated, there is no federal constitutional right to

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The court notes that a state prisoner may 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. Wilkinson, 544 U.S. at 821–82; see
also Thomas v. Eby, 481 F.3d 434, 439–40 (6th Cir. 2007). Plaintiff, however, seeks
release from custody and his claim goes to the propriety of the parole denial itself. His
claim is thus barred by Heck.
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parole. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); see also Michael v. Ghee, 498
F.3d 372, 377–378 (6th Cir. 2007). Moreover, while state law may create a
constitutionally-protected liberty interest in parole, see Thompson, 490 U.S. at 460,
Michigan law creates no such liberty interest. See Crump v. Lafler, 657 F.3d 393, 404
(6th Cir. 2011). Consequently, any denial of parole, even if erroneous, implicates no
federal right. See Caldwell v. McNutt, 158 F. App’x 739, 740–41 (6th Cir. 2006) (per
curiam) (stating that “even if the Parole Board relied on inaccurate information to deny
[the petitioner] parole, it did not violate any liberty interest protected by the United
States Constitution” and affirming dismissal of claim). Plaintiff’s parole claim is also
conclusory, and vague and conclusory allegations unsupported by material facts are
insufficient to state a civil rights claim under § 1983. See, e.g., Lanier v. Bryant, 332
F.3d 999, 1007 (6th Cir. 2003); see also Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
555–57. Plaintiff thus fails to state a claim upon which relief may be granted under
§1983 as to this issue, and his complaint and amended complaint must be dismissed.
III. CONCLUSION
Based on the foregoing discussion, the court concludes that two of Plaintiff’s
claims are barred by res judicata and that he has failed to state a claim upon which
relief may be granted under§ 1983 as to his remaining claim. The court also concludes
that an appeal from this order cannot be taken in good faith. See 28 U.S.C.
§ 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962).

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Accordingly, IT IS ORDERED that Plaintiff’s complaint [Dkt. #1] and amended
complaint [Dkt. #12] are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2)(b) and 1915A.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 24, 2013

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 24, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-13635.BOOKER.SummaryDismissal.jac.wpd

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