Malcom v. Walker et al

Filing 4

ORDER OF DISMISSAL Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EBONY MALCOM,

Plaintiff,

Case No. 17-11140

v.
HON. AVERN COHN
JUDGE SHANNON WALKER, CATHY
MARIE GARRETT, Wayne County Clerk,
and Attorney RICHARD M. LYNCH,
Defendants.
________________________________/
ORDER OF DISMISSAL
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Ebony Malcom
is proceeding pro se and without prepayment of the filing fee in this action under 28
U.S.C. § 1915(a)(1). The complaint names Judge Shannon Walker, Wayne County Clerk
Cathy Marie Garrett, and Attorney Richard M. Lynch as defendants. For the reasons that
follow, the complaint will be dismissed for failure to state a viable claim.
II. Background
Plaintiff was convicted after a jury trial of conducting a criminal enterprise, larceny
in a building, and stealing a financial transaction device. Plaintiff is serving a sentence of
8 to 20 years.1 From what can be gleaned from the complaint, plaintiff alleges that she
has filed various papers in state court and that due to the defendants’ failure to respond to
her papers, her conviction must be overturned.

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This information was obtained from the Michigan Department of Corrections'
Offender Tracking Information System, of which this Court is permitted to take judicial
notice. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 n.3 (E.D. Mich. 2004).

III. Legal Standard
Civil rights complaints filed by a pro se prisoner are subject to the screening
requirements of 28 U.S.C. § 1915(e)(2). Brown v. Bargery, 207 F.3d 863, 866 (6th Cir.
2000). Section 1915(e)(2) requires district courts to screen and to dismiss complaints that
are frivolous, fail to state a claim upon which relief can be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); McGore
v. Wigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). A complaint is frivolous and subject
to sua sponte dismissal under § 1915(e) if it lacks an arguable basis in either law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiff fails to state a claim upon which
relief may be granted, when, construing the complaint in a light most favorable to the
plaintiff and accepting all the factual allegations as true, the plaintiff undoubtedly can
prove no set of facts in support if his claims that would entitle her to relief. Sistrunk v. City
of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Cline v. Rogers, 87 F.3d 176, 179 (6th
Cir. 1996); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995).
In addition, “a district court may, at any time, dismiss sua sponte a complaint for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure when the allegations of a complaint are totally implausible, attenuated,
unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999)(citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)).
IV. Discussion
As noted above, plaintiff says that defendants’ failure to respond to her state court
papers mandate the reversal of her conviction. In light of these allegations, a judgment in
favor of plaintiff in this action would necessarily require a finding that her continued

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confinement is the result of an invalid conviction. In Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), the Supreme Court held such claims are cannot be brught under section
1983:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint
must be dismissed unless plaintiff can demonstrate that the conviction or
sentence has already been invalidated.
Instead, a motion under 28 U.S.C. § 2254 provides the appropriate vehicle for
challenging the fact or duration of a prisoner’s confinement. Preiser v. Rodriguez, 411
U.S. 475, 486-87 (1973). The Court also cannot convert this matter into a 2254 motion; it
must dismiss the complaint. See Murphy v. Martin, 343 F. Supp. 2d 603, 610 (E.D. Mich.
2004).
V. Conclusion
For the reasons stated above, plaintiff fails to state a claim upon which relief may
be granted under 42 U.S.C. § 1983. Accordingly, the complaint is DISMISSED under 28
U.S.C. §§ 1915(e)(2) and 1915A(b). The Court also finds that an appeal from this
decision cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United
States, 369 U.S. 438, 445 (1962).
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: May 4, 2017
Detroit, Michigan

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