Jacobson #796135 v. Dimitriou et al
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
JEFFREY C. JACOBSON,
Case No. 1:12-cv-1415
Honorable Robert Holmes Bell
JAMES DIMITRIOU et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. §§ 1983,
1985. The Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff shall pay the
initial partial filing fee when funds are available. 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). 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.
Plaintiff presently is incarcerated at the Michigan Reformatory. In his pro se
complaint, he sues attorney James Dimitriou and Dr. Neil Colegrove. Attorney Dimitriou was
retained by Plaintiff for his criminal trial in Kent County Circuit Court. Dr. Colegrove practices
medicine in Kentwood, Michigan.
Following a jury trial, Plaintiff was convicted of four counts of first-degree criminal
sexual conduct (CSC), one count of first-degree home invasion and one count of assault with a
dangerous weapon. In 2011, the trial court sentenced Plaintiff to prison terms of fifteen to forty-five
years for each CSC count, two to six years for the assault count and seven years and six months to
thirty years for the home invasion count.1
In his complaint, Plaintiff argues that Defendant Dimitriou violated his Sixth
Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to the
due process of law. Plaintiff also asserts that Defendant Dimitriou’s actions constituted negligence
and violated MICH . COMP . LAWS §767.5a(2). In support of his claims, Plaintiff alleges that
Defendant Dimitriou: (1) failed to inform Plaintiff of a forensics lab report prior to a status
conference, (2) failed to inform Plaintiff of an investigation by the Attorney Discipline Board of the
State of Michigan so Plaintiff could find alternative representation, (3) conspired with the prosecutor
to adjourn Plaintiff’s trial until Dimitriou’s disciplinary issues were resolved with the Attorney
Discipline Board, (4) disclosed confidential communications to the prosecutor, (5) failed to prevent
the prosecutor from illegally obtaining Plaintiff’s medical records, (6) conspired with the prosecutor
The Court obtained information regarding Plaintiff’s convictions and sentences from the MDOC Offender
Tracking Information System website at http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=796135.
so Plaintiff would be a witness against himself, (7) conspired with the prosecutor so Plaintiff would
stipulate to having had a vasectomy when that information was protected by the physician-patient
privilege, (8) was completely absent throughout the entire pre-trial period of Plaintiff’s
representation, (9) failed to obtain subpoenas for witnesses, withheld evidence from Plaintiff, and
failed to investigate the complainant’s story and alternative defenses, and (10) fraudulently informed
Plaintiff that the prosecution had his medical records and had subpoenaed Plaintiff’s doctor to testify
so Plaintiff would stipulate that he had a vasectomy at trial.
As to Defendant Colegrove, Plaintiff argues that the disclosure of Plaintiff’s medical
records violated his rights under the Due Process Clause, his Fifth Amendment right against self
incrimination and his Fourth Amendment right against illegal search and seizures. Plaintiff also
alleges that Defendant Colegrove’s actions violated MICH . COMP . LAWS §§ 600.2157 and 767.5a(2)
and constituted negligence under state law.
After Plaintiff’s jury trial, he was granted a Ginther2 hearing. While testifying at the
Ginther hearing, Plaintiff states that his appellate attorney deliberately interrupted him to avoid
placing all of the information about his ineffective assistance of counsel claims on the record.
Plaintiff claims that he was denied his due process right to a fair and impartial hearing, and his right
to access the courts at his Ginther hearing.
Plaintiff requests declaratory and injunctive relief as well as compensatory and
People v. Ginther, 212 N.W .2d 922 (Mich. 1973) (establishing procedure for requesting evidentiary hearings
for claims of ineffective assistance of counsel).
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, 556 U.S. 662, 678
(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, 556 U.S. at 679.
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, 556 U.S. at 678 (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, 556 U.S. at 679 (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)
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
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).
Heck v. Humphrey
Plaintiff’s complaint fails because his allegations challenge his incarceration 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
[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.” 512 U.S. 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 convictions. Therefore, his action is barred under Heck until his criminal convictions have been
In his complaint, Plaintiff asserts violations of state law. Section 1983 does not
provide redress for a violation of state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995);
Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). Plaintiff’s assertion that Defendants violated
state law therefore fails to state a claim under § 1983. Moreover, to the extent that Plaintiff seeks
to invoke this Court’s supplemental jurisdiction over a state-law claim, the Court declines to exercise
jurisdiction. In determining whether to retain supplemental jurisdiction, “[a] district court should
consider the interests of judicial economy and the avoidance of multiplicity of litigation and balance
those interests against needlessly deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc.,
994 F.2d 1178, 1182 (6th Cir. 1993). Ordinarily, where a district court has exercised jurisdiction
over a state-law claim solely by virtue of supplemental jurisdiction and the federal claims are
dismissed prior to trial, the court will dismiss the remaining state-law claims. Id. Dismissal,
however, remains “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009) (citing 28 U.S.C. § 1367(c)); Orton v. Johnny’s Lunch Franchise, LLC, 668 F.3d 843, 850
(6th Cir. 2012). Here, the balance of the relevant considerations weighs against the continued
exercise of supplemental jurisdiction. Accordingly, Plaintiff’s state-law claims will be dismissed
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.
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: January 31, 2013
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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