Turner #603403 v. Sullivan

Filing 6

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

TORRY JAY TURNER,
Plaintiff,

Case No. 1:15-cv-515

v.

Honorable Janet T. Neff

PAUL J. SULLIVAN,
Defendant.
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OPINION
This is a civil action brought by a state prisoner, ostensibly pursuant to 29 U.S.C. §
1651(a). 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 on grounds of
immunity and failure to state a claim.

Factual Allegations
Plaintiff Torry Jay Turner presently is incarcerated at the Alger Correctional Facility.
Following a jury trial in the Kent County Circuit Court, Plaintiff was convicted of assault with intent
to commit sexual penetration, MICH. COMP. LAWS § 750.520g, and fourth-degree criminal sexual
conduct, MICH. COMP. LAWS § 750.520e. On June 6, 2006, Petitioner was sentenced, as a second
felony offender, MICH. COMP. LAWS § 769.11, to respective prison terms of 2 to 20 years and 1 to
4 years. Plaintiff sues Kent County Circuit Court Judge Paul J. Sullivan.
Plaintiff characterizes his complaint as a motion seeking relief from judgment under
FED. R. CIV. P. 60(b) and 60(d)(3). In his complaint and supporting declaration, Plaintiff alleges that
Defendant made a variety of improper, and allegedly illegal, decisions in presiding over Plaintiff’s
criminal case and in imposing the judgment of sentence. Plaintiff contends that, because of
Defendant’s allegedly unlawful and fraudulent conduct, Plaintiff should be relieved of the judgment
of conviction.
Discussion
I.

Immunity

Generally, a judge is absolutely immune from a suit for monetary damages. Mireles
v. Waco, 502 U.S. 9, 9-10 (1991) (“[I]t is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority vested in him, shall be free
to act upon his own convictions, without apprehension of person consequences to himself.”)
(internal quotations omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v.
Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in
only two instances. First, a judge is not immune from liability for non-judicial actions, i.e., actions
not taken in the judge’s judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484 U.S.
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219, 229 (1988) (noting that immunity is grounded in “the nature of the function performed, not the
identity of the actor who performed it”). Second, a judge is not immune for actions, though judicial
in nature, taken in complete absence of all jurisdiction. Id. at 12.
Plaintiff’s allegations clearly fail to implicate either of the exceptions to judicial
immunity. There is no doubt that making legal rulings during trial and setting sentence are judicial
acts and that Defendant was acting within his jurisdiction to oversee Plaintiff’s trial. Accordingly,
Defendant is absolutely immune from liability. Because Judge Sullivan is clearly immune from
liability in this case, Plaintiff may not maintain an action for monetary damages against him. 28
U.S.C. § 1915(e)(2)(B)(iii).
Moreover, injunctive relief is also not available under § 1983, because, under the
1996 amendments to that statute, injunctive relief “shall not be granted” in an action against “a
judicial officer for an act or omission taken in such officer’s judicial capacity . . . unless a
declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; accord
Savoie v. Martin, 673 F.3d 488, 496 (6th Cir. 2012). Plaintiff does not allege that a declaratory
decree was violated or that declaratory relief was unavailable. Consequently, his claim for
injunctive relief is barred. Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
II.

Failure to state a claim

Even if Defendant were not immune from suit, Plaintiff fails 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, 47 (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
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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)
and 1915(e)(2)(B)(i)).
Plaintiff challenges 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. 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).1 Therefore, to the
extent that Plaintiff’s complaint challenges the fact or duration of his incarceration, it must be
dismissed. See Adams v. Morris, 90 F. App’x 856, 858 (6th Cir. 2004) (dismissal is appropriate

1

The Court notes that Plaintiff previously filed two habeas corpus actions. The first habeas action was denied
on the grounds that the claims were procedurally defaulted. See Turner v. Rapelje, No. 2:09-cv-10019, 2010 WL
148671, at *6 (E.D. Mich. Jan. 13, 2013). The second action was transferred to the Sixth Circuit because it was a second
or successive petition under 28 U.S.C. § 2244(b). See Turner v. Bauman, No. 2:11-cv-275 (W.D. Mich. Oct. 27, 2011).

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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.” 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 until his criminal conviction
has been invalidated.
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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 Hunt v. Michigan, 482 F. App’x 20, 22 (6th Cir. 2012) (a claim barred
by Heck is properly dismissed for failure to state a claim); Morris v. Cason, 102 F. App’x 902, 903
(6th Cir. 2004) (same).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A(b), and 42 U.S.C. § 1997e(c), on grounds of immunity and failure to state a claim.
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
$505.00 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 $505.00 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: June 22, 2015

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

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