Smith v. Gilbert et al
OPINION and ORDER Dismissing Plaintiff's Complaint. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DWAYNE M. SMITH,
Case No. 4:18-cv-10188
Honorable Linda V. Parker
Magistrate Judge Patricia T. Morris
B. GILBERT, et al.,
OPINION AND ORDER DISMISSING PLAINTIFF’S COMPLAINT
Plaintiff, Dwayne M. Smith, a state inmate, filed a pro se civil rights
complaint under 42 U.S.C. § 1983, along with an application to proceed in forma
pauperis. This matter is before the Court for a screen of the complaint pursuant to
28 U.S.C. § 1915(e)(2). For the reasons that follow, Plaintiff’s complaint is
dismissed without prejudice.
Plaintiff names as Defendants (1) the Clinton Township Police Department
(“CTPD”), (2) CTPD Detective B. Gilbert, (3) the Oakland County Sheriff, (4) the
Waterford Police Department (“WPD”), (5) WPD Detective Larry Novak, and (6)
an unknown administrative officer of the Oakland County Circuit Court. The facts
in his complaint all relate to two separate armed robberies: one in Clinton
Township and one in Waterford Township. The facts in Plaintiff’s complaint will
be accepted as true for the purposes of this § 1915(e)(2) screen.
On December 31, 2015, Plaintiff, along with three other people, was arrested
as a suspect in the robbery of a Family Dollar in Clinton Township. The CTPD
recovered five cell phones from one of the suspect’s vehicles. In addition, the
CTPD confiscated Plaintiff’s property of $752 in cash, two watches, and a
necklace. Plaintiff alleges that on January 8, 2016, Detective Novak obtained
Plaintiff’s phone records without a warrant, by submitting false and misleading
information in an application pursuant to 18 U.S.C. § 2703(d). Detective Gilbert
contacted CTPD on January 6, 2016 informing them they arrested four individuals
in a robbery and indicated that a suspect from the Clinton Township Robbery was
the same as in an earlier Waterford Township robbery. Plaintiff was identified as
the suspect. Detective Gilbert also provided Detective Novak with two cell phone
On January 11, 2016, when Plaintiff was in the Oakland County Jail on a
probation violation, Detective Novak stated that he received a call from Oakland
County indicating that Plaintiff refused to participate in a corporeal lineup.
Plaintiff denies this allegation and asserts that either Detective Novak lied about
his refusal to appear in-person or the Oakland County Jail failed to notify him of
the lineup. Plaintiff asserts that Detective Novak manipulated the evidence to
arrest him for robbery.
At some point, CTPD dropped all of the charges against Plaintiff, but failed
to return his property. Instead, a representative of the CTPD indicated that the
property would be kept until a separate Oakland County case was resolved.
Plaintiff contends that Detectives Gilbert and Novak conspired to forward the
confiscated property to Oakland County for restitution in a separate matter.
Plaintiff was not afforded a hearing to determine ownership of the property.
Plaintiff brings four claims: 1) his Fourth and Fourteenth Amendment rights
were violated when Defendants unlawfully searched and seized his property; 2) he
was permanently deprived of his property without a hearing in violation of Due
Process; 3) Defendants deprived him of notice of an impartial lineup and right to
counsel; and 4) the unverified waiver of his right to a corporeal lineup violated his
constitutional rights. Plaintiff asks the Court to order a new trial, award damages
in the amount of one million dollars, and to return the confiscated property. He
also seeks declaratory relief, in the form of a Court order declaring that Defendants
violated the constitution by failing to implement a procedure to verify waiver of a
corporeal lineup, that his property was unlawfully searched and seized, and that the
information collected from his phone records was unlawfully seized.
Congress enacted 28 U.S.C. § 1915 seeking to “lower judicial access
barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing
so, however, “Congress recognized that ‘a litigant whose filing fees and court costs
are assumed by the public, unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress
included subsection (e) as part of the statute, which requires sua sponte dismissal
of an action upon the court’s determination that the action is frivolous, malicious,
or fails to state a claim upon which relief may be granted. 28 U.S.C.
(i) & (ii); Denton, 504 U.S. at 31. As a result, “[d]istrict courts are required to
screen all civil cases brought by prisoners, regardless of whether the inmate paid
the full filing fee, is a pauper, is pro se, or is represented by counsel, as the statute
does not differentiate between civil actions brought by prisoners.” In re Prison
Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997).
To state a claim upon which relief may be granted, a plaintiff must satisfy
the basic federal pleading requirements set forth in Federal Rule of Civil Procedure
8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Fed.
R. Civ. P. 12(b)(6) standard of review under 28 U.S.C. §§ 1915A and
1915(e)(2)(B)(ii)). Rule 8(a) requires that a complaint set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief,” as well as “a
demand for the relief sought.” Fed. R. Civ. P. 8(a)(2) & (3). While this pleading
standard does not require “detailed factual allegations,’ . . . [a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.”’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put another way, Plaintiff
must, at a minimum, make sufficient allegations to give defendants fair notice of
the claims against them.
A complaint is frivolous if it lacks an arguable basis in law or in fact.
Neitzke, 490 U.S. at 325. “A complaint is subject to dismissal for failure to state a
claim if the allegations, taken as true, show the plaintiff is not entitled to relief.”
Jones v. Bock, 549 U.S. 199, 215 (2007).
The Court holds pro se complaints to “less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, even in pleadings drafted by pro se parties, ‘“courts should not have to
guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 F. App’x
975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
To establish a viable claim under § 1983, a plaintiff must allege that he or
she was deprived of a right ‘“secured by the Constitution and the laws of the
United States’ by one acting under color of law.” Ahlers v. Schebil, 188 F.3d 365,
370 (6th Cir. 1999) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-56
(1978)). In addition, a plaintiff must make a showing that he or she suffered a
specific injury as a result of the conduct of a particular defendant. Rizzo v. Goode,
423 U.S. 362, 371-72, 377 (1976). Plaintiff’s complaint fails to state a § 1983
Claims 1 and 2: Deprivation of Plaintiff’s 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). “State tort remedies generally satisfy the postdeprivation process requirement of the Due Process Clauses.” Fox v. Van
Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Where a plaintiff in a § 1983 action
fails to demonstrate the inadequacy of his or her state remedies, the case should be
dismissed. See Bass, 167 F.3d at 1050.
Plaintiff does not allege that Michigan’s remedies to obtain compensation
for the loss of his property are inadequate. 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. Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995). Plaintiff has
failed to plead and prove that state remedies are inadequate to redress his property
deprivation. Therefore, he has no right to relief and claims 1 and 2 are dismissed
Claims 3 and 4: Fourth Amendment Allegations
Plaintiff’s claims related to the alleged unlawful search of his phone and
inconsistencies related to the lineup are not cognizable under § 1983 unless his
conviction is overturned or invalidated. See Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). To be sure, Heck does not completely bar Fourth Amendment
claims. However, to recover compensatory damages based on allegedly
unreasonable searches, a § 1983 plaintiff must prove not only that the search or
seizure was unlawful, but that it caused him or her actual, compensable injury, not
including the injury of being convicted and imprisoned, until his or her conviction
has been overturned. Id. at 487, n. 7.
Here, Plaintiff does not set forth any injury to him from the alleged illegal
search of his phone and lack of a corporeal lineup, beyond his conviction and
incarceration. Where the “search [of plaintiff] yielded the [evidence] which
became the subject of a criminal charge of which [plaintiff] was convicted,” a
finding that the search or lineup procedure was unreasonable would “necessarily
imply the invalidity of [the] conviction” and would therefore be barred under Heck.
Fox v. Michigan State Police Dep’t., 173 F. App’x 372, 377-78 (6th Cir. 2006); see
also Poindexter v. Overton, 110 F. App’x 646, 647 (6th Cir. 2004); Pergram v.
Shortridge, 96 F. App’x 322 (6th Cir. 2004).
To the extent Plaintiff is seeking to have his criminal conviction vacated or
set aside in this civil rights action, his complaint is subject to dismissal. A plaintiff
cannot seek injunctive relief relating to his or her criminal conviction in a § 1983
action. Nelson v. Campbell, 541 U.S. 637, 643 (2004). Instead, “§ 1983 must
yield to the more specific federal habeas statute, with its attendant procedural and
exhaustion requirements, where an inmate seeks injunctive relief challenging the
fact of his conviction or the duration of his sentence.” Id.
The Court will not, however, convert the matter to 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). The matter should instead be dismissed, leaving it to the
plaintiff to decide whether to refile it as a petition for writ of habeas corpus. Id.
Therefore, claims 3 and 4 are dismissed without prejudice pursuant to Heck v.
Humphrey. See Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 767 (6th Cir.
In sum, claims 1 and 2 are dismissed without prejudice for failure to state a
claim upon which relief can be granted. Claims 3 and 4 are dismissed without
prejudice pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 13, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 13, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
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