Thomas v. Miles et al

Filing 10

ORDER vacating Order of Reference to the Magistrate Judge 7 ; granting 8 Application to Proceed Without Prepaying Fees or Costs filed by Romero Thomas; granting 9 MOTION to Amend 1 Complaint; and summarily dismissing the complaint. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROMERO THOMAS,
Plaintiff,
CASE NO. 16-10933
HONORABLE NANCY G. EDMUNDS

v.
KIMBERLY F. MILES, PAUL PESMARK,
and TERRY CROSS-NELSON,
Defendants.
____________________________________/

ORDER VACATING THE ORDER OF REFERENCE
TO THE MAGISTRATE JUDGE (ECF No. 7),
GRANTING THE APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS (ECF No. 8),
GRANTING THE MOTION TO AMEND (ECF No. 9),
AND SUMMARILY DISMISSING THE COMPLAINT (ECF No. 1)
I. Introduction
Plaintiff Romero Thomas, a state prisoner at the Carson City Correctional Facility
in Carson City, Michigan, recently filed a pro se civil rights complaint under 42 U.S.C. §§
1983 and 1988. The defendants are: Kimberly F. Miles, a prosecuting attorney for
Wayne County, Michigan; Sergeant Paul Pesmark of the Detroit Police Department; and
Detective Terry Cross-Nelson of the Detroit Police Department. Plaintiff sues the
defendants in their personal and official capacities for declaratory, monetary, and
equitable relief.
The complaint challenges Plaintiff’s Wayne County convictions for two counts of
armed robbery and one count of felony firearm. The trial court sentenced Plaintiff on

April 14, 2014, to two years in prison for the felony firearm conviction and fourteen to
thirty-five years in prison for the armed robbery convictions.1
Plaintiff claims in his pending civil rights complaint that: (1) defendant Kimberly
F. Miles deprived him of due process by failing to give him notice of the precise date of
the offense; (2) defendant Miles and others deprived him of due process by using a
suggestive photographic show-up; (3) defendant Paul Pesmark deprived Plaintiff of due
process by tampering with evidence and suppressing, or failing to preserve, potentially
useful evidence to establish a date for the offense; (4) defendant Pesmark was grossly
negligent in his care and preservation of the digital surveillance video; (5) defendant
Terry Cross-Nelson deprived Plaintiff of due process by (a) failing to have a witness
sign the photographic line-up, (b) placing an “X” above Plaintiff’s photo in the photo
array, and (c) telling the witness to circle Plaintiff’s photo; and (6) defendant CrossNelson was grossly negligent in failing to have a witness sign her name to the photo
array.
II. Preliminary Matters
A. The Order of Reference to the Magistrate Judge
On March 31, 2016, the Court referred this case to the Magistrate Judge. Upon
further review of the case, the Court has determined that Plaintiff’s complaint fails to

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The jury acquitted Plaintiff of assault with a dangerous weapon. In a prior civil rights
complaint assigned to this Court, Plaintiff sued prosecuting attorney Kimberly F. Miles,
Sergeant Paul Pesmark, and others on the basis that they violated Plaintiff’s federal due
process rights by falsely accusing him of assault with a dangerous weapon. The Court
summarily dismissed Plaintiff’s federal due process claims for failure to state a claim on
which relief may be granted. The Court declined to exercise supplemental jurisdiction
over Thomas’s state-law claims and dismissed those claims without prejudice. See
Thomas v. Miles, et al., No. 14-13107 (E.D. Mich. Apr. 24, 2015).
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state a plausible claim for relief and must be summarily dismissed. Accordingly, the
Court vacates the order of reference to the Magistrate Judge (ECF No. 7).
B. The Application to Proceed Without Prepayment of the Filing Fee
Prisoners are required to pay the full filing fee for their civil action actions. 28
U.S.C. § 1915(b)(1). If they are unable to prepay the filing fee, they may pay on an
installment basis. See 28 U.S.C. §§ 1915(b)(1) and 1915(b)(2).
Plaintiff has asked for permission to proceed without prepayment of the filing fee.
His application (ECF No. 8) is granted. The Court nevertheless must assess and, if
funds exist, collect an initial partial filing fee consisting of twenty percent of the greater
of (1) the average monthly deposits to Plaintiff’s trust fund account at the prison or (2)
the average monthly balance in Plaintiff’s account for the preceding six months. 28
U.S.C. § 1915(b)(1). After Plaintiff pays the initial partial filing fee, he must make
monthly payments of twenty percent of the preceding month’s income credited to his
account at the prison. 28 U.S.C. § 1915(b)(2).
The initial partial filing fee in this case is $17.00. The Court orders the Michigan
Department of Corrections to: (1) withdraw or set aside the initial partial filing fee from
Plaintiff’s prison trust fund account; (2) forward this amount to the Clerk of this Court
within thirty days of the date of this order; and (3) in subsequent months, or from time to
time, forward to the Clerk twenty percent of the preceding month’s income credited to
Plaintiff’s account until Plaintiff has paid the entire filing fee of $350.00. The Court will
notify the Department of Corrections when Plaintiff has paid the entire filing fee.

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C. The Motion to Amend
In a motion to amend his complaint, Plaintiff has asked for permission to modify
certain paragraphs in his statement of facts and in his prayer for relief. Because the
complaint has not been served on the defendants, the Court grants Plaintiff’s motion to
amend the complaint (ECF No. 9). The Court will proceed to address Plaintiff’s claims,
using the following standard.
III. Legal Framework
The Prison Litigation Reform Act of 1996 requires federal district courts to screen
a prisoner’s complaint and to dismiss the complaint if it is frivolous, malicious, fails to
state a claim for which relief can be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Flanory v.
Bonn, 604 F.3d 249, 252 (6th Cir. 2010); Smith v. Campbell, 250 F.3d 1032, 1036 (6th
Cir. 2001). A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke
v. Williams, 490 U.S. 319, 325 (1989).
To prevail on a claim under § 1983, a prisoner must prove “(1) that he or she was
deprived of a right secured by the Constitution or laws of the United States; and (2) that
the deprivation was caused by a person acting under color of law.” Robertson v. Lucas,
753 F.3d 606, 614 (6th Cir. 2014). While a complaint “does not need detailed factual
allegations,” the “[f]actual 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).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(footnote and citations omitted). In other words, “a complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
IV. ANALYSIS
Plaintiff’s complaint lacks an arguable basis in law because he is challenging his
state convictions in a civil rights action. The sole federal remedy for a state prisoner’s
challenge to the fact or duration of physical imprisonment is a petition for the writ of
habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). And, as explained by
the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994),
to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A
claim for damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under 1983.
Id. at 486-87 (footnote omitted)(emphasis in original). Heck and progeny,
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) (emphasis in original).
Plaintiff has not alleged that his convictions were invalidated by state officials or
called into question by a federal court’s issuance of the writ of habeas corpus, and
success in this action would necessarily demonstrate the invalidity of his convictions.
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As such, Plaintiff’s claims are not cognizable in this § 1983 action. Heck, 512 U.S. at
487.
The claims against assistant prosecutor Kimberly F. Miles are frivolous and fail to
state a claim for an additional reason: prosecutors enjoy absolute immunity from liability
under § 1983 for conduct “ ‘intimately associated with the judicial phase of the criminal
process.’ ” Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)); see also Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir.
2010) (stating that functions which “serve as an ‘integral part of the judicial process’ or
that are ‘intimately associated with the judicial process’ are absolutely immune from civil
suits”). This immunity from liability under § 1983 extends to a prosecutor’s “conduct in
‘initiating a prosecution and in presenting the State’s case.’ ” Burns, 500 U.S. at 486
(quoting Imbler, 424 U.S. at 431). As the prosecuting attorney in Plaintiff’s criminal
case, defendant Miles’ conduct was intimately associated with the judicial phase of the
criminal process. Therefore, she enjoys absolute immunity from suit.
V. Conclusion
Plaintiff’s complaint is frivolous and fails to state a plausible claim for which relief
may be granted. The Court therefore summarily dismisses the complaint (ECF No. 1,
as amended) under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This dismissal is without
prejudice to Plaintiff’s right to renew his claims if his conviction or sentence is reversed
or invalidated by state officials or called into question by a federal court’s issuance of a
writ of habeas corpus. The Court certifies that an appeal from this order would be
frivolous and could not be taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v.
United States, 369 U.S. 438, 445 (1962).

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SO ORDERED.

Dated: May 16, 2016

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
CERTIFICATION

I hereby certify that a copy of this order was served upon parties/counsel of
Record on this 16th day of May, 2016 by regular U.S. Mail and/or CM/ECF.

s/ Carol J Bethel
Case Manager

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