Carter #244366 v. Brinkman et al
Filing
8
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CEDRIC LAMONT CARTER,
Plaintiff,
Case No. 1:11-cv-408
v.
Honorable Robert Holmes Bell
HELEN V. BRINKMAN,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321
(1996), the Court is required to dismiss any prisoner action brought under federal law if the
complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42
U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff’s action will be dismissed for failure to state a claim.
Factual Allegations
Plaintiff Cedric Lamont Carter presently is incarcerated at the Saginaw Correctional
Facility. Following a bench trial in the Kent County Circuit Court, Plaintiff was convicted of one
count of first-degree criminal sexual conduct involving a victim younger than 13 years, MICH . COMP .
LAWS § 750.520b(1)(A). He was sentenced on July 12, 1995 to a prison term of 25 to 45 years.
In his civil rights action, Plaintiff sues the following individuals: Kent County
Assistant Prosecutor Helen V. Brinkman; Grand Rapids Police Detective Rex Marks; Kent County
Circuit Judge George S. Buth; victim Rosa Lagrone; Marlyn Lagrone; Tonia Lagrone; elementary
counselors Mary Westhouse and Michele Bowersox; and Dr. Wendy Burdo.
Plaintiff alleges Defendant Assistant Prosecutor Brinkman deliberately drafted a false
complaint and warrant, alleging that Plaintiff committed a crime in Grand Rapids on January 31,
1994. He also alleges that Brinkman was negligent in protecting his constitutional rights. Plaintiff
alleges that Defendant Police Officer Marks made a false sworn statement in support of the warrant,
by asserting that Plaintiff had sexually assaulted Rosa Lagrone. The warrant was used to extradite
Plaintiff from Chicago to Grand Rapids. Plaintiff alleges that Brinkman and Marks defrauded the
Governor of Illinois and the Illinois prosecutor by including in the complaint and warrant
information that was knowingly false.
For relief, Plaintiff seeks release from prison, expungement of his conviction, and
$1.25 million in damages for every year of his incarceration on the offense.
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Discussion
I.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’
– that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2));
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
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a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff fails to even mention in the body of his complaint Defendants Rosa, Tonia,
or Marlyn Lagrone, Buth, Westhouse, Bowersox or Byrdo. It is a basic pleading essential that a
plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 544 (holding
that, in order to state a claim, a plaintiff must make sufficient allegations to give a defendant fair
notice of the claim). Where a person is named as a defendant without an allegation of specific
conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro
se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing
complaint where plaintiff failed to allege how any named defendant was involved in the violation
of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s
claims where complaint did not allege with any degree of specificity which of the named defendants
were personally involved in or responsible for each alleged violation of rights); Griffin v.
Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations
of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722,
at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in law
as the complaint is totally devoid of allegations as to them which would suggest their involvement
in the events leading to his injuries.”). Because Plaintiff’s claims fall far short of the minimal
pleading standards under FED . R. CIV . P. 8 (requiring “a short and plain statement of the claim
showing that the pleader is entitled to relief”), his complaint must be dismissed against Defendants
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Rosa Lagrone, Tonia Lagrone, Marlyn Lagrone, George Buth, Mary Westhouse, Michele Bowersox
and Wendy Byrdo.
Plaintiff’s claims against remaining Defendants Brinkman and Marks are not
cognizable in this proceeding. Plaintiff seeks release from prison and expungement of his conviction
by the State of Michigan. A challenge to the fact or duration of confinement should be brought as
a petition for habeas corpus and is not the proper subject of a civil rights action brought pursuant to
§ 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (the essence of habeas corpus is an
attack by a person in custody upon the legality of that custody and the traditional function of the writ
is to secure release from illegal custody). Therefore, to the extent that Plaintiff’s complaint
challenges the fact or duration of his incarceration, it must be dismissed. See Barnes v. Lewis, No.
93-5698, 1993 WL 515483, at *1 (6th Cir. Dec. 10, 1993) (dismissal is appropriate where § 1983
action seeks equitable relief and challenges fact or duration of confinement); see also Moore v.
Pemberton, 110 F.3d 22, 23-24 (7th Cir. 1997) (reasons for not construing a § 1983 action as one
seeking habeas relief include (1) potential application of Heck v. Humphrey, 512 U.S. 477 (1994),
(2) differing defendants, (3) differing standards of § 1915(a)(3) and § 2253(c), (4) differing fee
requirements, (5) potential application of second or successive petition doctrine or three-strikes rules
of § 1915(g)).
To the extent Plaintiff seeks injunctive, declaratory and monetary relief for alleged
violations of Constitutional rights, his claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), which held that “in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
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[overturned].” See Edwards v. Balisok, 520 U.S. 641, 646 (1997) (emphasis in original). In Heck,
the Supreme Court held that a state prisoner cannot make a cognizable claim under § 1983 for an
allegedly unconstitutional conviction or for “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid” unless a prisoner shows that the conviction or sentence has
been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.” Id. at 486-87 (footnote omitted). The holding in Heck has been extended to
actions seeking injunctive or declaratory relief. See Edwards, 520 U.S. at 646-48 (declaratory relief);
Clarke v. Stalder, 154 F.3d 186, 189-90 (5th Cir. 1998) (claim for injunctive relief intertwined with
request for damages); Wilson v. Kinkela, No. 97-4035, 1998 WL 246401, at *1 (6th Cir. May 5,
1998) (injunctive relief). Plaintiff’s allegations clearly call into question the validity of his
conviction. Therefore, his action is barred under Heck unless and until his criminal conviction has
been invalidated.1
A court’s dismissal of a claim on the basis that it is barred by Heck v. Humphrey is
properly considered a dismissal under 28 U.S.C. § 1915(g) because it fails to state a claim on which
relief can be granted. See Morris v. Cason, No. 02-2460, 2004 WL 1326066 (6th Cir. June 10, 2004)
(a claim barred by Heck is properly dismissed for failure to state a claim); Murray v. Evert, No. 031411, 2003 WL 22976618 (6th Cir. Dec. 8, 2003) (same); Harris v. Truesdell, No. 03-1440, 2003
WL 22435646 (6th Cir. Oct. 23, 2003) (Heck-barred claim fails to state a claim and is frivolous).
1
Even were the action cognizable, Defendant Brinkman would be entitled to prosecutorial immunity from
damages, as the actions of which Plaintiff complains – the preparation of a warrant and complaint – clearly were part
of a prosecutor’s traditional functions as an advocate. See Kalina v. Fletcher, 522 U.S. 118, 127 (1997); Burns v. Reed,
500 U.S. 478, 486 (1991); Forrester v. White, 484 U.S. 219, 229 (1988); Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
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Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: August 4, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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