Bishop v. Genesee, County of

Filing 5

ORDER Granting #2 Application to Proceed Without Prepaying Fees or Costs and Summarily Dismissing #1 Complaint - Signed by District Judge Nancy G. Edmunds. (LBar)

Case 2:21-cv-12861-NGE-DRG ECF No. 5, PageID.19 Filed 01/07/22 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYA BISHOP,
Plaintiff,

Case No. 21-12861

v.

Honorable Nancy G. Edmunds

GENESEE COUNTY,
Defendant.
___________________________________/
ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED WITHOUT
PREPAYING FEES OR COSTS [2] AND SUMMARILY DISMISSING CASE
Plaintiff Brya Bishop, a state prisoner incarcerated at the Genesee County Jail,
brings this pro se civil case against Genesee County. (ECF No. 1.) Plaintiff has also filed
an application to proceed without prepaying fees or costs. (ECF No. 2.) The Court has
reviewed Plaintiff’s application and GRANTS Plaintiff’s request to proceed in forma
pauperis. For the reasons discussed below, however, the Court DISMISSES this case.
I.

Application to Proceed In Forma Pauperis
Under 28 U.S.C. § 1915(a)(1), a court may authorize the commencement of a civil

action without the prepayment of fees or costs (“in forma pauperis” or “IFP”) if the
applicant submits an affidavit demonstrating that he or she is “unable to pay such fees or
give security therefor.” An affidavit in support of an IFP application is sufficient if it states
that one cannot, because of his poverty, afford to pay the costs of litigation and still
provide himself and his family with the necessities of life. Adkins v. E.I. DuPont de
Nemours & Co., Inc., 335 U.S. 331, 339 (1948). Here, Plaintiff is incarcerated and does
not have any sources of income. (ECF No. 2.) Her inmate balance history report shows

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a balance of $0.31. (ECF No. 1, PageID.14.) Based on this declaration, the Court grants
Plaintiff’s application to proceed IFP.
II.

Legal Standard
When a plaintiff establishes indigence, the district court must screen the complaint

as mandated by Congress in 28 U.S.C. § 1915(e)(2). See McGore v. Wrigglesworth, 114
F.3d 601, 608 (6th Cir. 1997), overruled in part on other grounds by LaFountain v. Harry,
716 F.3d 944 (6th Cir. 2013). Specifically, the district court is obligated to dismiss a civil
complaint if it “is frivolous or malicious [or] fails to state a claim on which relief may be
granted.” See § 1915(e)(2)(B).
Also, “federal courts have a duty to consider their subject matter jurisdiction in
regard to every case and may raise the issue sua sponte.” Answers in Genesis of Ky.,
Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). Even in the case
of a plaintiff who has paid a filing fee, “a district court may, at any time, sua sponte dismiss
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); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988)).
III.

Analysis
Plaintiff alleges her constitutional rights were violated when state prosecutors and

state judges relied on “non-conforming documents” to prosecute and adjudicate a criminal
case against her in state court. Plaintiff purports to bring claims directly under several
amendments of the United States Constitution. She seeks monetary damages as well as

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the dismissal of all charges. The Court construes this portion of the complaint as seeking
to state claims under 42 U.S.C. § 1983.
Plaintiff’s primary contention is that she is being unlawfully incarcerated. But a civil
rights action is an appropriate remedy for a state prisoner challenging a condition of his
or her imprisonment, Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), not the validity of a
continued confinement, Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a
state prisoner cannot state a cognizable civil rights claim if a ruling in his or her favor
would render a continuing confinement invalid, until and unless the reason for the
confinement has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of
habeas corpus under 28 U.S.C. § 2254). This is true regardless of the relief sought by
the plaintiff.

Id. at 487-89.

Thus, to the extent Plaintiff challenges her continued

confinement, this case is dismissed for lack of subject matter jurisdiction.1 See Murphy
v. Martin, 343 F. Supp. 2d 603, 609 (E.D. Mich. 2003).
And while Plaintiff only names Genesee County as the defendant in this case, she
makes allegations about the state prosecutors and judges themselves.

Any claims

against those individuals, however, are barred by prosecutorial and judicial immunity. See
Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (noting that a prosecutor acting as
“an officer of the court” is absolutely immune from a suit seeking monetary damages);

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The sole remedy for a state prisoner challenging her imprisonment and seeking
release is a writ of habeas corpus. Preiser, 411 U.S. at 500. While Plaintiff may choose
to file a petition for habeas relief herself, the Court declines to construe her complaint as
such. See Parker v. Phillips, 27 F. App’x 491, 494 (6th Cir. 2001) (finding the district court
properly declined to construe a civil rights complaint as seeking habeas corpus relief
because the plaintiff did not allege his claims were exhausted nor did he comply with the
Rules Governing Section 2254 Cases in the United States District Courts).
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Mireles v. Waco, 502 U.S. 9, 9-13 (1991) (noting that a judge performing judicial functions
is absolutely immune from a suit seeking monetary damages even if acting erroneously,
corruptly, or in excess of his or her authority).
Plaintiff also alleges violations of a number of criminal statutes and seeks the
prosecution of the state prosecutors and judges who allegedly conspired against her. A
private citizen, however, may not assert a right of action under a criminal statute. See
Jenkins v. Methodist Healthcare, No. 15-6195, 2016 U.S. App. LEXIS 10598, at *5 (6th
Cir. May 6, 2016) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)); Hamilton v.
Reed, 29 F. App’x 202, 204 (6th Cir. 2002). It is the United States Attorney, not a private
citizen, who is authorized to prosecute any offenses against the United States. See
Hamilton, 29 F. App’x at 204. Thus, dismissal of these claims is appropriate under
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s application to proceed without prepaying fees

or costs is GRANTED; Plaintiff’s claims stemming from a challenge to her confinement
are DISMISSED WITHOUT PREJUDICE; and Plaintiff’s remaining claims, including those
brought under federal criminal statutes, are DISMISSED WITH PREJUDICE.
In addition, pursuant to § 1915(a)(3), this Court hereby certifies that an appeal may
not be taken in forma pauperis because it would not be taken in good faith.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 7, 2022

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I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 7, 2022, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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