Earick v. Behm et al
Filing
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OPINION AND ORDER DISMISSING CASE, Signed by District Judge Judith E. Levy. (WBar)
Case 5:21-cv-11540-JEL-PTM ECF No. 7, PageID.22 Filed 01/17/23 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dylan John Earick,
Plaintiff,
v.
F. Kay Behm, et al.,
Defendants.
Case No. 5:21-cv-11540
Hon. Judith E. Levy
United States District Judge
Mag. J. Patricia T. Morris
_________________________________/
OPINION AND ORDER OF SUMMARY DISMISSAL
Before the Court is Plaintiff Dylan John Earick’s pro se civil rights
complaint filed under 42 U.S.C. § 1983. (ECF No. 1.) Earick, a pre-trial
detainee who, at the time this case was filed, was confined at the Genesee
County Jail in Flint, Michigan,1 is proceeding without prepayment of the
filing fee pursuant to 28 U.S.C. § 1915(a)(1). (ECF No. 5.) Earick is suing
Defendants F. Kay Behm and Paul Fehrman in their official and
individual capacities for slander and violation of his due process rights
during a court hearing in December 2020.
Plaintiff is currently incarcerated at the G. Robert Cotton Correctional
Facility in Jackson, Michigan.
See https://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=681676.
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As explained further below, the Court dismisses the complaint
because both defendants are immune from suit, and the complaint is
frivolous and fails to state a claim upon which relief may be granted.
I.
Background
Earick’s complaint is brief. He alleges that during a Zoom (video)
court hearing which was held on December 1, 2020, Defendant
Prosecutor Paul Fehrman declared Earick to be a sex offender. (Compl.,
ECF No. 1., PageID.2.) Earick disputes this allegation. He states further
than Defendant F. Kay Behm, the judge presiding over the hearing
elected to take no action against Fehrman. Earick characterizes Behm’s
failure to act “effectively aid[ing] and abet[ting]” Fehrman’s slander. (Id.
at PageID.3.)
Earick’s request for relief includes a federal criminal inquiry into
Defendants’ conduct, their removal from involvement in his criminal
case, money damages, and personal protective orders. (Id. at PageID.4.)
II.
Legal Standard
Under the Prison Litigation Reform Act (“PLRA”), the Court is
required to dismiss on its own an in forma pauperis complaint before
service if it determines that the action is frivolous, malicious, fails to state
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a claim upon which relief can be granted, or seeks monetary relief from
defendant immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. §§
1915(e)(2)(B), 1915A(b). The dismissal standard under the PLRA is
equivalent to that of Federal Rule of Civil Procedure 12(b)(6). Hill v.
Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (citations omitted). When
evaluating a complaint under that standard, courts “construe the
complaint in the light most favorable to the plaintiff, accept all wellpleaded factual allegations as true, and examine whether the complaint
contains ‘sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Hill v. Snyder, 878 F.3d 193, 203 (6th
Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Federal Rule of Civil Procedure 8(a) requires 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). The purpose of this rule is to “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal citation omitted). Rule 8’s pleading standard “does not require
‘detailed factual allegations,’ but it demands more than an unadorned,
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the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 at 662
(quoting Twombly, 550 U.S. at 555). Moreover, a complaint “that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). And
“naked assertion[s] devoid of further factual enhancement,” will not
survive screening. Bickerstaff v. Lucarelli, 830 F.3d 388, 401 (6th Cir.
2016) (citing Iqbal, 556 U.S. 662, 678).
“A complaint can be frivolous either factually or legally.” Anson v.
Corr. Corp. of Am., 529 F. App’x 558, 559 (6th Cir. 2013) (citing Hill v.
Lappin, 630 F.3d at 470). The former is found “when [the complaint]
relies on ‘fantastic or delusional’ allegations”; the latter, “when
‘indisputably meritless’ legal theories underlie the complaint.” Brand v.
Motley, 526 F.3d 921, 923 (6th Cir. 2008) (quoting Neitzke v. Williams,
490 U.S. 319, 327–28 (1989)).
“To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege a violation of a right secured by the federal Constitution or laws
and must show that the violation was committed by a person acting
under color of state law.” Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir.
2010) (citing West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corrs. Corp.
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of Am., 102 F.3d 810, 814 (6th Cir. 1996)). Pro se civil rights complaints
are construed liberally. See Stanley v. Vining, 602 F.3d 767, 771 (6th Cir.
2010).
III.
Analysis
Earick’s complaint does not survive screening under 28 U.S.C. §
1915(e)(2)(B) and § 1915A(a). First, Earick alleges Defendant Behm, the
state circuit court judge presiding over Plaintiff’s criminal case, failed to
hold Defendant Fehrman in contempt for his conduct during a court
proceeding, and therefore aided and abetted Fehrman’s slander of
Earick. (ECF No. 1, PageID.3.) However, judges enjoy absolute immunity
“from § 1983 suits arising out of their performance of judicial functions.”
Huffer v. Bogen, 503 F. App’x 455, 458 (6th Cir. 2012) (citing Pierson v.
Ray, 386 U.S. 547, 553–54 (1967)).
Judicial immunity may be overcome only when a defendant is not
acting as a judge, or when the conduct, though judicial, occurs despite the
complete absence of subject-matter jurisdiction. See Barnes v. Winchell,
105 F.3d 1111, 1116 (6th Cir. 1997) (citing Mireles v. Waco, 502 U.S. 9,
11-12 (1991)). Neither exception applies. The conduct alleged here
occurred during the course of a motion hearing, indicating Behm was
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acting in her judicial capacity. And there is no indication the court lacked
jurisdiction over Earick’s criminal case.
Earick has further failed to state a claim upon which relief may be
granted against Behm. He alleges she violated his statutory and
constitutional rights by failing to hold the prosecutor in contempt.
However, “[l]iability in a § 1983 action cannot be premised upon passive
behavior or an alleged failure to act, rather liability must be based upon
active unconstitutional behavior.” Porter v. Caruso, 479 F. Supp. 2d 687,
700 (W.D. Mich. 2007) (citing Salehpour v. University of Tennessee, 159
F.3d 199, 206-07 (6th Cir.1998)); see also Green v. Barber, 310 F.3d 889,
899 (6th Cir.2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999).
Defendant Fehrman is also immune from suit. “Absolute
prosecutorial immunity, like absolute judicial immunity, is a common
law principle that shields a prosecutor from § 1983 liability.” Cooper v.
Parrish, 203 F.3d 937, 946 (6th Cir. 2000). A prosecutor has absolute
immunity for all acts “intimately associated with the judicial phase of the
criminal process,” including “presenting the State’s case.” Imbler v.
Pachtman, 424 U.S. 409, 430 (1976); see also Cooper, 203 F.3d at 947
(absolute immunity applies when the prosecutor acts “as an advocate for
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the state”). Earick alleges that Fehrman slandered him during a motion
hearing in his criminal case, which is clearly associated with the “judicial
phase of the criminal process.” Imbler, supra. Fehrman is thus immune
from Earick’s claims.
Finally, Earick’s allegations against Fehrman fail to state a claim
upon which relief may be granted under section 1983, because
defamation claims are matters of state law and do not involve the
violation of federal or constitutional rights. See Siegert v. Gilley, 500 U.S.
226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws
of most States, but not a constitutional deprivation.”); Collier v. Austin
Peay State Univ., 616 F. Supp. 2d 760, 775 (M.D. Tenn. 2009) (claims for
libel and slander are not cognizable under § 1983); see also Harper v.
(Unknown) Arkesteyn, No. 19-1928, 2020 WL 4877518, *2 (6th Cir. April
28, 2020) (Ҥ 1983 does not provide redress solely for state law violations
such as defamation”).
IV.
Conclusion
For the reasons set forth above, IT IS ORDERED that the
complaint is DISMISSED WITH PREJUDICE because the defendants
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are immune, the claims are frivolous, and Plaintiff has failed to state a
claim upon which relief may be granted.
IT IS SO ORDERED.
Dated: January 17, 2023
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 17, 2023.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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