Smith v. Harry

Filing 3

OPINION AND ORDER Summarily Dismissing the Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH,
Petitioner,
v.

Case Number 17-10285
Honorable David M. Lawson

SHIRLEY HARRY,
Respondent.
_____________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITIONER’S PETITION
FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2254
Petitioner Derrick Lee Smith, presently confined at the Muskegon Correctional Facility in
Muskegon, Michigan, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The petition also identifies Virginia Wilkinson, Inmate # 981857, as a co-petitioner. However, only
Smith signed the petition, and the Court cannot find any record of an inmate named Virginia
Wilkinson in the Michigan Department of Corrections’ Offender Tracking Information System; and
the inmate associated with number 981857 is not Virginia Wilkinson. Under Federal Rule of Civil
Procedure 11(a), every pleading must be signed by either an attorney of record or by a party
personally if the party is not represented by counsel. Wilkinson is not represented by counsel and
has not signed the petition. Therefore, only Smith’s petition is properly before the Court.
Petitioner Smith was convicted and sentenced in 2008 on two counts of kidnapping, and six
counts of first-degree criminal sexual conduct. He was sentenced to 22 years and 6 months to 75
years. In his petition, Smith lists 22 claims for relief related to the conditions of his confinement for
alleged violations of his First, Eighth, and Fourteenth Amendment rights. Smith says that he is
aware that a habeas corpus petition is not the appropriate vehicle to address condition of
confinement claims. However, he contends that he brought his claims under a habeas corpus

petition because he has become frustrated with his inability to file his case in the Ingham County
circuit court and the Michigan Court of Claims.
After a petition for habeas corpus is filed, the Court must undertake a preliminary review of
the petition to determine whether “it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules
Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the Court must summarily dismiss the petition.
McFarland v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999);
Rules Governing § 2254 Cases, Rule 4. The Court will dismiss the petition because the petitioner’s
papers plainly demonstrate that he is not entitled to relief. See Rule 4, Rules Governing § 2254
Cases. It is clear that Smith is not seeking to collaterally attack his state court conviction under 28
U.S.C. § 2254. His claims all involve alleged civil rights violations against Michigan Department
of Corrections employees related to the conditions of his confinement. Indeed, he attempted to bring
his case in both a Michigan trial court and the Michigan Court of Claims, a court that hears civil
cases against the State of Michigan. Smith has therefore not provided any basis for habeas corpus
relief.
Additionally, Smith’s petition cannot be construed as a civil rights action. Although a pro
se litigant’s filing is to be construed liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), “[t]he
leniency granted pro se litigants . . . is not boundless.” Martin v. Overton, 391 F.3d 710, 714 (6th
Cir. 2004). The Sixth Circuit has held that where a prisoner files a habeas corpus petition raising
claims that must be raised in a civil rights action, the district court should dismiss the petition
without prejudice to allow the petitioner to raise his claims properly. Ibid. Moreover, prisoners are

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required to attempt to settle their disputes about prison conditions using the prison’s grievance
system before filing a federal lawsuit. 42 U.S.C. § 1997e(a) (“No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.”).
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DISMISSED
WITHOUT PREJUDICE.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 21, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 21, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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