Butler v. Crabtree et al
OPINION AND ORDER denying 3 Motion to Appoint Counsel and Summarily Dismissing Civil Rights Complaint. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DURMON TROY BUTLER, III,
Civil No. 2:17-cv-12439
Paul D. Borman
United States District Judge
DAVID CRABTREE, et al.,
OPINION AND ORDER SUMMARILY DISMISSING CIVIL RIGHTS
COMPLAINT AND DENYING THE MOTION FOR THE APPOINTMENT OF
The Court has before it Plaintiff Durmon Troy Butler III’s pro se civil rights
complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate currently
confined at the Saginaw Correctional Facility in Freeland, Michigan. Having
reviewed plaintiff’s complaint, the Court dismisses it in part with prejudice for
failing to state a claim upon which relief can be granted and in part without
prejudice. The Court denies plaintiff’s motion for the appointment of counsel.
II. STANDARD OF REVIEW
Plaintiff has been 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
(B) the action or appeal:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
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.
West v. Atkins, 487 U.S. 42, 48 (1988); See also Havard v. Puntuer, 600 F. Supp.
2d 845, 850 (E.D. Mich. 2009). “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).
Plaintiff claims that he was arrested and charged with the crime of seconddegree home invasion in Macomb County, Michigan. Plaintiff alleges that
defendant David Crabtree, a detective with the Macomb County Sheriff’s
Department, seized plaintiff’s 2000 Chevrolet SUV and other personal property at
the time of the arrest. Detective Crabtree claimed that these items were evidence
in plaintiff’s criminal case. Plaintiff repeatedly requested the return of his vehicle
and other property from the Sheriff’s Department or the Macomb County
Prosecutor’s Office. Plaintiff claims that Judge Diane M. Druzinski, a named
defendant, did issue an order for the return of plaintiff’s property that was not
related to the criminal investigation. When some of plaintiff’s relatives
subsequently went to the Macomb County Jail to obtain his property, Detective
Crabtree refused to turn over the property to the relatives, stating that Paul
Bukowski, an assistant prosecutor and another named defendant, intended to use
this property as evidence against plaintiff at his trial. When plaintiff brought the
issue to Judge Druzinski a second time, she refused to help him further. Plaintiff
alleges that the deprivation of his property left him without the ability to obtain
funds to bond out of jail pending trial or to obtain adequate counsel for his criminal
trial. Plaintiff also claims that it caused him mental anguish. Plaintiff was
convicted in three separate cases of one count each of first-degree home invasion,
second-degree home invasion, and attempted third-degree home invasion. 1
Plaintiff seeks monetary damages.
Plaintiff’s complaint must be dismissed for several reasons.
Plaintiff is unable to maintain a 42 U.S.C. § 1983 action to either get back
his property or obtain monetary damages for the seizure of his property.
An unauthorized intentional deprivation of property by a state employee
does not constitute a violation of the procedural requirements of the Due Process
Clause of the Fourteenth Amendment if a meaningful state post-deprivation
remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Bass
v. Robinson, 167 F.3d 1041, 1049 (6th Cir. 1999). A plaintiff who brings a § 1983
procedural due process claim has the burden of pleading and proving that the state
remedies for redressing the wrong are inadequate. Vicory v. Walton, 721 F.2d
1062, 1066 (6th Cir. 1983). Where a plaintiff in a 42 U.S.C. § 1983 action fails to
demonstrate the inadequacy of his state remedies, the case should be dismissed.
This Court obtained some of this information from the Michigan
Department of Corrections’ Offender Tracking Information System (OTIS), which
this Court is permitted to take judicial notice of. See Ward v. Wolfenbarger,323 F.
Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004).
See Bass, 167 F.3d at 1050.
Plaintiff does not allege the inadequacy of remedies in Michigan for him to
obtain compensation for the loss of his property. “State tort remedies generally
satisfy the post-deprivation process requirement of the Due Process Clauses.” Fox
v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Because plaintiff does not
allege the inadequacy of the post-deprivation remedies in the State of Michigan,
his complaint is subject to dismissal.
Plaintiff, in fact has adequate post-deprivation remedies available in the
Michigan courts. Michigan has several post-deprivation remedies, including
M.C.R. 3.105, which allows for an action for claim and delivery of the property,
Mich. Comp. Laws § 600.2920, which provides a civil action to recover possession
of or damages for goods and chattels unlawfully detained, and Mich. Comp. Laws
§ 600.6401, the Michigan Court of Claims Act, which establishes a procedure to
compensate for alleged unjustifiable acts of state officials. See Copeland v.
Machulis, 57 F.3d 476, 480 (6th Cir. 1995).
Because Michigan provides plaintiff with adequate post-deprivation
remedies for the loss of his property, the alleged unauthorized intentional
deprivation of plaintiff’s property would not rise to the level of a violation of due
process. See Keenan v. Marker, 23 F. App’x. 405, 407 (6th Cir. 2001).
To the extent that plaintiff seeks monetary damages from his criminal
conviction, he is not entitled to relief. Plaintiff is unable to obtain monetary
damages arising from his criminal conviction absent a showing that the 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, 486-487 (1994);
See also Alkire v. Irving, 330 F.3d 802, 816, n. 10 (6th Cir. 2003). Because
plaintiff does not allege that his conviction was overturned, expunged, or called
into question by a writ of habeas corpus, any allegations relating to his criminal
prosecution, conviction, and incarceration against the defendants fail to state a
claim for which relief may be granted. See Adams v. Morris, 90 F. App’x. 856, 858
(6th Cir. 2004); Dekoven v. Bell, 140 F. Supp. 2d 748, 756 (E.D. Mich. 2001).
Plaintiff is also not entitled to damages for the alleged mental anguish that
he suffered as a result of the alleged wrongful seizure of his property. 42 U.S.C. §
1997e(e) states that:
No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury or
the commission of a sexual act (as defined in section 2246 of Title 18).
Plaintiff is unable to maintain a civil rights action for his alleged mental
anguish because his complaint fails to allege any physical injury as a result of the
deprivation of his property. See Hardin–Bey v. Rutter, 524 F.3d 789, 795–96 (6th
The Court dismisses plaintiff’s complaint because he has failed to state a
claim upon which relief can be granted. Because the Court is dismissing plaintiff’s
allegations relating to his criminal prosecution under Heck, the dismissal of those
claims will be without prejudice. See e.g. Finley v. Densford, 90 F. App’x. 137,
138 (6th Cir. 2004). Plaintiff’s remaining claims will be dismissed with prejudice
for failing to state a claim upon which relief can be granted.
The Court will deny plaintiff’s motion for the appointment of counsel.
Although there is a fundamental constitutional right to counsel in criminal cases,
there is no constitutional right to appointed counsel in a civil case. Abdur-Rahman
v. Michigan Dep’t of Corrections, 65 F.3d 489, 492 (6th Cir. 1995). Plaintiff also
does not have a statutory right to the appointment of counsel in a federal civil
rights case. See Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996). Appointment
of counsel is not appropriate in a civil case where a pro se litigant’s claims are
frivolous or without merit. See Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993). The Court will dismiss the complaint. Because plaintiff’s complaint
against the defendant lacks any arguable basis in the law, this Court certifies that
any appeal by the plaintiff would be frivolous and not undertaken in good faith.
See Alexander v. Jackson, 440 F. Supp. 2d 682, 684 (E.D. Mich. 2006)(citing 28
U.S.C. § 1915(a)).
IT IS HEREBY ORDERED that Plaintiff’s Complaint is summarily
DISMISSED IN PART FOR FAILING TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED AND IN PART WITHOUT PREJUDICE, pursuant
to 28 U.S.C. § 1915A(e)(2) and 28 U.S.C. § 1915(A).
IT IS FURTHER ORDERED that the motion for the appointment of counsel
[Docket No: 3] is DENIED.
IT IS FURTHER ORDERED that any appeal taken by plaintiff would not be
done in good faith.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 11, 2017
CERTIFICATE 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
September 11, 2017.
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