Sims #258763 v. Morales et al

Filing 4

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

JAMES H. SIMS,
Plaintiff,

Case No. 1:16-cv-174

v.

Honorable Janet T. Neff

CARMEN MORALES et al.,
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. 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 James H. Sims presently is incarcerated at the Lakeland Correctional Facility
on a sentence of one year and six months to seven years and six months, imposed by the Kent
County Circuit Court after he pleaded nolo contendere to first-degree retail fraud, MICH. COMP.
LAWS § 750.356c. The conduct for which he was convicted and sentenced occurred on April 9,
2015.

See Mich. Dep’t of Corr. Offender Tracking Information System (OTIS),

http://mdocweb.state.mi. us/otis2/otis2profile.aspx?mdocNumber=258763 (last visited Feb. 24,
2016). Plaintiff sues the following Defendants: City of Wyoming Police Officers Aaron Freeman,
Carmen Morales, and Corey Walendzik, also the security firm of DuHadway Kendall & Associates
(DK), DK loss prevention detective Cameron Stuck. Spartan Nash Corporation, and Family Fare.

Plaintiff alleges that, on April 9, 2015, while he was shopping at a Family Fare
grocery store in Wyoming, Michigan, a loss prevention officer called the Wyoming Police
Department, reporting that Plaintiff intended to commit retail fraud. Plaintiff alleges that he was
falsely arrested without probable cause and that the elements of the crime of retail fraud were not
met. He holds all of the named Defendants responsible for the alleged deprivation of his rights. He
seeks a declaration that he did not violate any law, together with compensatory and punitive
damages.
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.

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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 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)).
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

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identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiff challenges his incarceration by the State of Michigan, arguing that he did
not commit any unlawful conduct on April 9, 2015, despite having pleaded nolo contendere and
having been convicted of first-degree retail fraud for that conduct. 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 Adams v. Morris, 90 F. App’x 856, 858 (6th Cir. 2004) (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 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 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

1

Because the action is barred by the Heck doctrine, the Court need not and does not decide whether any of the
named Defendants are private actors not subject to suit in a proceeding under 42 U.S.C. § 1983. See West, 487 U.S. at
48.

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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
(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: March 2, 2016

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

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