Tamburino #268269 v. Ingham County Prosecutor's Office et al

Filing 15

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOMINIC VITO TAMBURINO,
Plaintiff,

Case No. 1:12-cv-970

v.

Honorable Janet T. Neff

INGHAM COUNTY PROSECUTOR’S
OFFICE et al.,
Defendants.
____________________________________/
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. 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 is incarcerated in the Gus Harrison Correctional Facility. In his amended
complaint (docket #10), Plaintiff sues Ingham County Prosecutor Stuart J. Dunnings, III; Ingham
County Court Clerk Mike Bryanton; “Ingham County Adult Probation/MDOC,” Ingham Court
Recorder Susan Melton and Michigan Department of Corrections (MDOC) Director Daniel Heyns.
Plaintiff pleaded guilty in the Ingham County Circuit Court to one count of seconddegree home invasion. Under the plea agreement, Plaintiff was to receive a sentence of not more
than one year in the county jail. On July 20, 2005, the trial court sentenced Plaintiff to ten months
in the county jail with 198 days of time served, to be followed by three years of probation. Plaintiff
completed his jail sentence and was released on probation on August 19, 2005. As a result of
repeated probation violations, Plaintiff’s probation was revoked and he was sentenced on June 7,
2007, to imprisonment of eighteen months to fifteen years. Plaintiff’s allegations are difficult to
follow, but he appears to claim that, under the Pre-sentence Investigation Report, he is entitled to
a total of 304 days of time served between September 8, 2004 and his sentencing on July 20, 2005.
Plaintiff claims that the MDOC has failed to give him credit for the full 304 days in violation of the
plea agreement. He further contends that the transcripts from the plea and sentencing hearings in
his criminal case would support his claim, but his requests for copies of the transcripts have been
denied.
Plaintiff seeks injunctive relief and monetary damages.
Discussion
Plaintiff claims that he has not been properly credited for time served, thereby
extending his term of incarceration. Where a prisoner is challenging the very fact or duration of his

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physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ
of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (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). Because Plaintiff’s claims against Defendants
Dunnings, Ingham County Adult Probation/MDOC and Heyns concern only a challenge to the
duration of his sentence, they must be dismissed from this action. 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); 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)).
Assuming for purposes of this opinion that Plaintiff could bring a civil rights action
against Defendants Bryanton and Melton regarding their failure to provide him with copies of the
transcripts from his criminal case, his claim must fail. Since Plaintiff filed this action, the Ingham
County Circuit Court granted Plaintiff’s request for a copy of the transcripts in his criminal case.
(See 12/6/12 Order of the Ingham County Circuit Court, docket #13-1, Page ID#86.) In light of the
state court’s order, Plaintiff’s request for injunctive relief is rendered moot.
Furthermore, Defendants Bryanton and Melton are immune from Plaintiff’s claims
for monetary damages. Absolute judicial immunity is extended to non-judicial officers who perform
“quasi-judicial” duties. “Quasi-judicial immunity extends to those persons performing tasks so

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integral or intertwined with the judicial process that these persons are considered an arm of the
judicial officer who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (probate court
administrator entitled to quasi-judicial immunity for his role in carrying out the orders of the court)
(citing Scruggs v. Moellering, 870 F.2d 376 (7th Cir. 1989)); see also Johnson v. Turner, 125 F.3d
324, 333 (6th Cir. 1997) (one who acts as a judge’s designee in carrying out a function for which
the judge is immune is also protected from suit seeking monetary damages); Foster v. Walsh, 864
F.2d 416, 417-18 (6th Cir. 1988) (clerk of court was entitled to quasi-judicial immunity for issuing
a warrant as directed by the court); accord Carlton v. Baird, No. 03-1294, 2003 WL 21920023, at
*1 (6th Cir. Aug. 8, 2003) (state court clerk’s office employees were entitled to quasi-judicial
immunity from state prison inmate’s § 1983 claim); Lyle v. Jackson, No. 02-1323, 2002 WL
31085181, at *1 (6th Cir. Sept. 17, 2002) (quasi-judicial immunity applied to claims against state
court clerks who allegedly failed to provide prisoner with requested copies of previous filings and
transcripts); Bradley v. United States, 84 Fed. App’x 492, 493 (6th Cir. 2003) (federal court clerk
immune from suit for alleged delays in petition because quasi-judicial function.); Washington v.
Shelby County, No. 88-6321, 1989 WL 63896 (6th Cir. 1989) (court reporter is entitled to judicial
immunity when acting within the scope of his or her official duties). Defendants Bryanton and
Melton clearly were acting on behalf of the court when they denied Plaintiff’s request for transcripts.
Because Defendants are entitled to quasi-judicial immunity, Plaintiff may not maintain an action
against them for monetary damages.

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Conclusion
Having conducted the review 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
(overruled on other grounds) (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: February 13, 2013

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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