Howard v. Place

Filing 7

OPINION AND ORDER denying 6 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY HOWARD,
Plaintiff,
v.

Case Number 2:17-CV-13084
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

SHANE PLACE,
Defendant.
_________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 6)
FILED SUBSEQUENT TO COURT’S DISMISSAL
OF HIS CIVIL RIGHTS CASE (ECF NO. 6)
Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983. On
October 24, 2017, this Court dismissed the case without prejudice pursuant to 28
U.S.C. § 1915(g), because plaintiff had four prior civil rights cases that had been
dismissed for being frivolous, malicious, or for failing to state a claim upon which
relief could be granted. (ECF No. 5, Opinion and Order Denying IFP and
Dismissing Case.)
Plaintiff filed a motion for summary judgment, in which he seeks habeas
relief from his conviction pursuant to 28 U.S.C. § 2254. The motion is denied
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without prejudice to plaintiff filing a petition for writ of habeas corpus in a new
case.
This Court will not convert plaintiff’s civil rights complaint into a petition
for a writ of habeas corpus. When a suit that should have been brought under the
habeas corpus statute is prosecuted instead as a civil rights suit, it should not be
“converted” into a habeas corpus suit and decided on the merits. Pischke v.
Litscher, 178 F.3d 497, 500 (7th Cir. 1999). Instead, the matter should be
dismissed, leaving it to the prisoner to decide whether to refile it as a petition for
writ of habeas corpus. Id.
Accordingly, the motion for summary judgment (ECF No. 6) is DENIED.
The denial is without prejudice to plaintiff filing a petition for writ of habeas
corpus under a new case number.
SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: November 8, 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 November 8,
2017.
s/Deborah Tofil
Case Manager

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