Peete v. Combs et al
OPINION AND ORDER Summarily Dismissing Complaint and DENYING Motion for the Appointment of Counsel. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LAD D. PEETE,
Civil Action No. 4:17-CV-11652
HONORABLE TERRENCE G. BERG
THOMAS COMBS, et. al.,
OPINION AND ORDER SUMMARILY DISMISSING
COMPLAINT AND DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL
Before the Court is Plaintiff Lad D. Peete’s pro se civil rights
complaint filed pursuant to 42 U.S.C. §§ 1981 and 1983. Plaintiff is a
state prisoner incarcerated at the Muskegon Correctional Facility in
Muskegon, Michigan. For the reasons stated below, the complaint is
DISMISSED FOR FAILING TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
Plaintiff pleaded guilty to two counts of first-degree criminal
sexual conduct, one count of unarmed robbery, and one count of
breaking and entering in the Wayne County Circuit Court in 1979. As
part of a plea agreement with the Wayne County Prosecutor, Plaintiff
pleaded guilty to a reduced charge of second-degree murder in another
case pending before Detroit Recorder’s Court. Plaintiff was represented
by Defendant Gerald Lorence at trial. Plaintiff was sentenced to life in
prison for first-degree criminal sexual conduct convictions and 10 to 15
years in prison for unarmed robbery and breaking and entering.
Plaintiff was also sentenced to life in prison for second-degree murder,
but that sentence was vacated. See People v. Peete, 102 Mich. App. 34,
40, 301 N.W. 2d 53 (1980). Plaintiff was represented by Defendant
Elizabeth Jacobs on appeal. On remand Plaintiff was re-sentenced to
10 to 30 years in prison.1
Plaintiff subsequently filed a post-conviction motion for relief from
judgment before Judge Helene White—then a judge on the Wayne
County Circuit Court—challenging his first-degree criminal sexual
conduct sentences, which Judge White denied.
Plaintiff has now been discharged from his murder conviction. The
Court obtained 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).
Many years later, on May 25, 2017, Plaintiff filed this §§ 1981 and
1983 Complaint against two parole board members, Judge Helene
White (spelled as “Helen White,” three assistant prosecutors in his case,
and his court-appointed trial and appellate attorneys. He appears to
argue that Defendants breached his package plea agreement through a
“piecemeal adjudication” of his two separate criminal cases, which
resulted in an excessive sentence for his first-degree criminal sexual
conduct convictions. Plaintiff argues that after the Michigan Court of
Appeals vacated his life sentence for second-degree murder, his life
sentences on the first-degree criminal sexual conduct convictions should
also have been vacated.
Finally, Plaintiff claims that the Michigan Parole Board has
violated his plea agreement by continuing to deny him parole on the
criminal sexual conduct conviction life sentences.
III. 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 determines that:
(B) the action or appeal:
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 relief.
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
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. Bloch v. Ribar, 156 F. 3d 673, 677 (6th
Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “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.
a. Dismissal of Plaintiff’s Complaint
For the reasons discussed below Plaintiff’s Complaint is dismissed
for failure to state a claim against all Defendants.
1. Plaintiff has failed to state a claim under §1981
Plaintiff has not stated a claim under 42 U.S.C. § 1981. Section 1981
prohibits racial discrimination in contractual relationships. Plaintiff
has not alleged any facts to support a claim of racial discrimination
under § 1981 and this section in any event is irrelevant to his
allegations about his criminal prosecution. See Holland v. O'Hair, 1998
WL 152753, * 2, 145 F. 3d 1331 (6th Cir. 1998)(Table).
2. Judge Helene White is immune from suit under §§1981,
Judge Helene White is immune from suit under the Eleventh
Amendment. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66
(1989)(Eleventh Amendment bars civil rights actions against a state, its
agencies, and its departments, unless the state has waived immunity).
The State of Michigan has not consented to be sued for civil rights
actions in federal court. See Abick v. Michigan, 803 F. 2d 874, 877 (6th
Cir. 1986). The Michigan Supreme Court and its lower courts operate as
arms of the state, and enjoy the same sovereign immunity as the State
of Michigan, Pucci v. Nineteenth Dist. Ct., 628 F. 3d 752, 762–64 (6th
Cir. 2010), as do its judges who are sued in their official capacities. See
Colvin v. Caruso, 605 F. 3d 282, 289 (6th Cir. 2010)(citing Cady v.
Arenac Co., 574 F. 3d 334, 344 (6th Cir. 2009))(Eleventh Amendment
immunity extends to state employees sued in their official capacities).
Defendant Judge White is therefore entitled to Eleventh Amendment
Judge White is also entitled to absolute judicial immunity from
lawsuits for injunctive or equitable relief. See 42 U.S.C. § 1983 (“in any
action brought against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief is
unavailable”); see also Kipen v. Lawson, 57 F. App’x. 691 (6th Cir.
2003)(discussing federal judges’ immunity); Kircher v. City of Ypsilanti,
et al., 458 F. Supp. 2d 439, 446–47 (E.D. Mich. 2006).
3. Defendant prosecutors are immune from suit under §§1981,
Defendants J. Wouczyna2, T. Kenny, and Larry Roberts have
absolute prosecutorial immunity from §1983 liability for their actions
negotiating Plaintiff’s plea agreement. Cooper v. Parrish, 203 F. 3d
937, 946-47 (6th Cir. 2000)([A]cts that occur in the course of the
prosecutor’s role as an advocate for the state, e.g., acts taken to prepare
for the initiation of judicial proceedings or to prepare for trial, are
protected by absolute immunity”). And “conduct associated with plea
bargains” in particular is considered “so intimately associated with the
prosecutor’s role as an advocate of the State in the judicial process as to
warrant absolute immunity.” Cady v. Arenac County, 574 F. 3d at 341
(internal quotations omitted).
As with judicial immunity, the prosecutor’s motives for actions taken
on behalf of the state are irrelevant to whether the prosecutor is
immune from suit for those actions. Eldridge v. Gibson, 332 F. 3d 1019,
1021 (6th Cir. 2003). Indeed, absolute prosecutorial immunity is not
The Complaint uses several different spellings for this Defendant,
then an Assistant Wayne County Prosecutor, including “Wouczyba,”
“Wouozyna,” and “Wouczyna”. The Court believes that “Wouczyna” is
the proper spelling.
overcome by a showing that the prosecutor acted wrongfully or
maliciously. Grant v. Hollenbach, 870 F. 2d 1135, 1138 (6th Cir. 1989).
Defendants Wouczyna, Kenny and Roberts are thus immune from
suit for their actions in negotiating Plaintiff’s plea bargain.
4. Plaintiff has failed to state a claim against his defense
attorneys under §1983
Plaintiff’s suit against Gerald Lorence, his trial attorney, and
Elizabeth Jacobs, his appellate attorney, must be dismissed because
public defenders and court-appointed attorneys are not state actors
under 42 U.S.C. § 1983. Polk County v. Dodson, 454 U.S. 312, 317
(1981)(noting neither perform their functions “under color of state law”).
This is true even when a criminal defense attorney’s defective
performance results in the unconstitutional deprivation of an accused
criminal defendant’s liberty. See Briscoe v. Lahue, 460 U.S. 325, 329, n.
6 (1983); See also, e.g., Floyd v. County of Kent, 454 F. App’x. 493, 497
(6th Cir. 2012)(public defender was not liable for ineffective assistance
of counsel under § 1983)); Bomer v. Muechenheim, 75 F. App’x. 998, 999
(6th Cir. 2003)(criminal defendant’s appellate attorney was not liable
for ineffective assistance of counsel under § 1983).
Thus even if Plaintiff believes his counsel was ineffective he still
has no cognizable claim against either of them under §1983.
5. Plaintiff has failed to state a claim against parole board
Plaintiff has no federal constitutional right to be paroled and thus
has no cause of action against Defendants Thomas Combs and Barbara
Sampson of the Michigan Parole Board for violating that “right.” See
Gavin v. Wells, 914 F. 2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 76 F.
Supp. 2d 789, 792 (E.D. Mich. 1999). Plaintiff also has no liberty
interest in parole before the expiration of his sentence under the
Michigan parole statute. See, e.g., Crump v. Lafler, 657 F. 3d 393, 40405 (6th Cir. 2011); Foster v. Booker, 595 F. 3d 353, 368 (6th Cir. 2010).
A prisoner’s release on parole is discretionary with the parole
board. Lee, 76 F. Supp. 2d at 792 (citing In Re Parole of Johnson, 596 N.
W. 2d 202, 204 (1999)). Without a federal constitutional, or statecreated liberty interest in parole a prisoner may not challenge the
procedures used to deny him parole. See Johnson, 314 F. Supp. 2d at
Plaintiff claims that the Michigan Parole Board violated the terms
of his plea agreement by refusing to release him on parole. But because
the parole board was not a party to his plea agreement, its awareness,
or its refusal to adopt the terms and conditions of his plea agreement
are irrelevant in determining whether the prosecution violated that
agreement. See Cohen v. United States, 593 F. 2d 766, 772 (6th Cir.
1979); See Augustine v. Brewer, 821 F. 2d 365, 369, n. 2 (7th Cir.
1987)([B]ecause the determination of parole eligibility is a separate
phase of the criminal justice process, plea agreements that bind the
prosecution with respect to . . . sentencing recommendations do not,
absent a clear intent to the contrary, bind the decisions of a parole
board in determining a prisoner’s parole eligibility”)(internal quotations
Plaintiff has therefore failed to state a claim against the parole board
members for breach of his plea agreement.
b. Denial of Plaintiff’s motion for appointment of counsel
Plaintiff does not have a constitutional or statutory right to the
appointment of counsel in a federal civil rights case. See Abdur-Rahman
v. Michigan Dep’t of Corrections, 65 F. 3d 489, 492 (6th Cir. 1995)(no
constitutional right to appointed counsel in a civil case); Glover v.
Johnson, 75 F. 3d 264, 268 (6th Cir. 1996)(no statutory right to
appointed counsel in a civil case). 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). As discussed above, Plaintiff has failed to state any claim
against any of the named Defendants and the Court therefore declines
to appoint him counsel.
Finally, because the Complaint 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 ORDERED THAT:
(1) The civil rights complaint is DISMISSED FOR FAILING TO
STATE A CLAIM UPON WHICH RELIEF CAN BE
(2) the motion for the appointment of counsel is DENIED.
(3) IT IS CERTIFIED by the Court that any appeal taken by
Plaintiff would not be done in good faith.
Dated: November 28,
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and
the parties and/or counsel of record were served on November 28,
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