Brosch v. Pope-Starnes et al

Filing 4

OPINION AND ORDER OF SUMMARY DISMISSAL Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRACEY BROSCH,

Plaintiff,

Civil Action No. 2:15-11319
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT COURT

v.
SARA POPE-STARNES, et. al.,
Defendants,
________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL
I. Introduction
Before the Court is Plaintiff Tracey Brosch’s pro se civil rights complaint filed
pursuant to 42 U.S.C.§ 1983. Plaintiff is a state prisoner confined at the Huron Valley
Women’s Correctional Facility in Ypsilanti, Michigan. For the reasons that follow, the
complaint is DISMISSED WITHOUT PREJUDICE.
II. Standard of Review
Plaintiff was 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:
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
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(iii) seeks monetary relief against a defendant who is immune from such relief.
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). Sua sponte dismissal is appropriate if the complaint lacks an arguable basis when
filed. McGore, 114 F. 3d at 612; Goodell v. Anthony, 157 F. Supp. 2d 796, 799 (E.D.
Mich. 2001).
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 was convicted of first and second-degree child abuse in the Oakland
County Circuit Court. Plaintiff claims that she was denied a fair trial due to the
“pervasive” and “prejudicial misconduct of defendant Sara Pope-Starnes, an assistant
prosecutor. Plaintiff also sues David R. Grocyka, the former Oakland County Prosecutor,
and Oakland County. Plaintiff seeks monetary damages and other forms of relief.
IV. Discussion
Plaintiff’s complaint is subject to dismissal.
Plaintiff is unable to obtain monetary damages arising from her criminal
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conviction absent a showing that her criminal conviction was 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, 486487 (1994); See also Alkire v. Irving, 330 F.3d 802, 816, n. 10 (6th Cir. 2003). Because
Plaintiff does not allege that her conviction was overturned, expunged, or called into
question by a writ of habeas corpus, her allegations relating to her criminal prosecution,
conviction, and incarceration against the defendants fail to state a claim for which relief
may be granted. 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).
The civil rights complaint is also subject to dismissal to the extent that Plaintiff
seeks to have her criminal conviction vacated or set aside. 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). A plaintiff cannot
seek injunctive relief relating to his or her criminal conviction in a § 1983 action. Nelson
v. Campbell, 541 U.S. 637, 643 (2004). Instead, Ҥ 1983 must yield to the more specific
federal habeas statute, with its attendant procedural and exhaustion requirements, where
an inmate seeks injunctive relief challenging the fact of his conviction or the duration of
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his sentence.” Id.
Plaintiff has a petition for writ of habeas corpus pending in the federal court. See
Brosch v. Warren, U.S.D.C. No. 2:14-CV-13391 (E.D. Mich.). No decision has been
rendered on that case yet. To the extent that Plaintiff seeks release from incarceration, the
current action is dismissed for being duplicative of her pending habeas petition. See Davis
v. U.S. Parole Com’n, 870 F. 2d 657 (Table), No. 1989 WL 25837, * 1 (6th Cir. March 7,
1989)(district court can properly dismiss a habeas petition as being duplicative of a
pending habeas petition, where the district court finds that the instant petition is
essentially the same as the earlier petition).
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 or her claims if the
conviction or sentence is later invalidated. See Murphy v. Martin, 343 F. Supp. 2d 603,
609 (E.D. Mich. 2004). The Court thus dismisses Plaintiff’s § 1983 complaint without
prejudice. See e.g. Finley v. Densford, 90 Fed. Appx. 137, 138 (6th Cir. 2004).

V. ORDER
Based upon the foregoing, IT IS ORDERED that the complaint is DISMISSED
WITHOUT PREJUDICE.
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S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: April 16, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Tracey Brosch by electronic means or U.S.
Mail on April 16, 2015.
S/Carol A. Pinegar
Deputy Clerk

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