Muhammad #242898 v. Michigan Department of Corrections et al

Filing 10

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

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

EL AMIN MUHAMMAD,
Plaintiff,

Case No. 1:17-cv-68

v.

Honorable Paul L. Maloney

MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
____________________________________/
OPINION
This action purports to be a removal of a civil action filed by Plaintiff in Muskegon
County.1 In the attached state-court complaint, Plaintiff appears to seeks state habeas corpus relief
from his 2016 convictions for armed robbery, MICH. COMP. LAWS § 750.529, and second-offense
felony firearm, MICH. COMP. LAWS § 750.227b, on which he is serving prison terms of 25 to 38 years
and 5 years, respectively. 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) and 1915A(b). 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

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The Court notes that, notwithstanding Plaintiff’s claim that he intends (as a plaintiff) to remove a state-court
action, the case has been opened as a civil rights action under 42 U.S.C. § 1983.

U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action will be dismissed because it is
frivolous.
Factual Allegations
Plaintiff’s allegations are difficult to decipher, in large measure because he casts his
claims as a sovereign-citizen case, in which he purports to proceed as “Agent El-Amin Muhammad,
In Jure Proprio Petitioner For: Plaintiff/Property EL-AMIN MUHMMAD #242898[.]” (Compl.,
ECF No. 1, PageID.1 (emphasis in original).) Based on his allegations, Plaintiff appears to adhere
to the “sovereign citizen” theory, claiming to be controlled only by admiralty law and the Uniform
Commercial Code. He contends that the arrest warrant was exercised against a “legal fiction
commercial name in all caps ELAMIN MUHAMMAD” (Pl.’s Aff., ECF No. 1-2, Page ID.28)
without a security-for-performance bond, as required for maritime and bankruptcy liens. Absent
such proper security documents, he argues, the court lacked jurisdiction over his criminal case.
Plaintiff appears to seek relief from his imprisonment.
Discussion
I.

Removal

On the face of the pleading, Plaintiff declares his intent to remove a state habeas
complaint from the Muskegon County Circuit Court to this Court. As the plaintiff who filed the
action, Plaintiff has no authority to remove his civil case to federal court under 28 U.S.C. § 1441(a).
See id. (providing that only a defendant or defendants may file a notice of removal). The Court
therefore lacks jurisdiction over the case. As a consequence, to the extent that Plaintiff seeks to
remove his state-court civil complaint, the case must be remanded to the Muskegon County Circuit
Court. See 28 U.S.C. § 1447(c).
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Alternatively, Plaintiff may intend to remove his criminal case to this Court. A state
defendant may remove his criminal prosecution only as provided in 28 U.S.C. § 1443. This section
permits removal of a criminal action by a defendant:
(1) Against any person who is denied or cannot enforce in the courts of [a] State a
right under any law providing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal
rights, or for refusing to do any act on the ground that it would be inconsistent with
such law.
28 U.S.C. § 1443. With respect to subsection (1), a removal petition must satisfy a two-pronged test.
See Johnson v. Mississippi, 421 U.S. 213 (1975). “First, it must appear that the right allegedly
denied the removal petitioner arises under a federal law ‘providing for specific civil rights stated in
terms of racial equality.’ ” Johnson, 421 U.S. at 219 (quoting State of Georgia v. Rachel, 384 U.S.
780, 792 (1966)). Claims that prosecution and conviction will violate rights under constitutional or
statutory provisions of general applicability or under statutes not protecting against racial
discrimination, will not suffice. That a removal petitioner will be denied due process of law because
the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is
assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the
requirements of § 1443(1). Id. (citing City of Greenwood v. Peacock, 384 U.S. 808, 825 (1966)).
Second, a petitioner must show that he cannot enforce the specified federal right in state court.
Johnson, 421 U.S. at 219. “This provision normally requires that the denial be manifest in a formal
expression of state law, such as a state legislative or constitutional provision, rather than a denial first
made manifest in the trial of the case.” Id. (quoting Rachel, 384 U.S. at 799, 803) (internal quotation
marks omitted).
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Plaintiff does not allege that his arrest or conviction would violate a federal law
designed to protect him from racial inequalities. In addition, his petition wholly fails to satisfy the
second prong because he fails to allege a “formal expression of state law,” § 1443(1), that prohibits
his enforcing his federal rights in state court. As the United States Supreme Court has explained:
It is not enough to support removal under § 1443(1) to allege or show that the
defendant’s federal equal civil rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the charges against the defendant are
false, or that the defendant is unable to obtain a fair trial in a particular state court.
The motives of the officers bringing the charges may be corrupt, but that does not
show that the state trial court will find the defendant guilty if he is innocent, or that
in any other manner the defendant will be “denied or cannot enforce in the courts”
of the State any right under a federal law providing for equal civil rights. The civil
rights removal statute does not require and does not permit the judges of the federal
courts to put their brethren of the state judiciary on trial. Under § 1443(1), the
vindication of the defendant’s federal rights is left to the state courts except in the
rare situations where it can be clearly predicted by reason of the operation of a
pervasive and explicit state or federal law that those rights will inevitably be denied
by the very act of bringing the defendant to trial in the state court.
Peacock, 384 U.S. at 827-28 (emphasis added). Plaintiff cannot show that the state trial and
appellate courts will not be able to vindicate his rights. For these reasons, removal is not proper
under § 1443(1).
Nor does Plaintiff’s criminal action satisfy the alternative bases for removal under
§ 1443(2). “The first clause [of subsection (2) ], ‘for any act under color of authority derived from
any law providing for equal rights . . . [,]’ has been examined by the Supreme Court and held
available only to federal officers and to persons assisting such officers in the performance of their
official duties.” Detroit Police Lieutenants and Sergeants Ass’n v. City of Detroit, 597 F.2d 566,
568 (6th Cir. 1979) (citing Peacock, 384 U.S. at 815). As to the second clause of § 1443(2) (“for
refusing to do any act on the ground that it would be inconsistent with such law”), the Supreme

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Court has noted that “[i]t is clear that removal under that language is available only to state officers.”
Peacock, 384 U.S. at 824 n. 22; Detroit Police Lieutenants and Sergeants Ass’n, 597 F.2d at 568
(“We believe that this provision of the statute was designed to protect state officers from being
penalized for failing to enforce discriminatory state laws or policies by providing a federal forum in
which to litigate these issues.”). As Plaintiff is neither a federal officer or a person assisting a federal
officer in the performance of his duties nor a state officer, neither clause of § 1443(2) applies.
Furthermore, a notice of removal of a criminal prosecution shall be filed not later than
thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier,
except that for good cause shown the United States district court may enter an order granting the
defendant leave to file the notice at a later time. 28 U.S.C. § 1446(c)(1) (emphasis added). Thus,
the statute permits removal of a criminal action only before trial, and removal is not permitted after
conviction. Because removal is not authorized under § 1443, this Court is without jurisdiction to
entertain Plaintiff’s criminal action at this time.
In sum, no legal basis exists for removal of either Plaintiff’s civil or criminal action
to this Court.
II.

Frivolousness

Notwithstanding the fact that Plaintiff titled his pleading as a removal petition the
Court, reading Plaintiff’s action indulgently, see Haines, 404 U.S. at 520, considers whether
Plaintiff’s allegations support an independent civil rights complaint.
An action may be dismissed as frivolous if “it lacks an arguable basis either in law
or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Brown v. Bargery, 207 F.3d 863, 866
(2000); Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). Claims that lack an arguable or
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rational basis in law include claims for which the defendants are clearly entitled to immunity and
claims of infringement of a legal interest which clearly does not exist; claims that lack an arguable
or rational basis in fact describe fantastic or delusional scenarios. Neitzke, 490 U.S. at 327-28;
Lawler, 898 F.2d at 1199.
Plaintiff’s allegations are legally frivolous. The capitalization of Plaintiff’s name did
not create a fictitious legal entity, and it certainly did not turn such artificial entity into property
governed by the Uniform Commercial Code or admiralty law. The courts repeatedly have rejected
such “redemptionist and sovereign citizen” arguments as utterly frivolous. Bey v. Butzbaugh, No.
1:13-cv-1173, 2014 WL 5149931, at *4 (W.D. Mich. Oct. 14, 2014) (citing Muhammad v. Smith,
No. 3:13–cv–760, 2014 WL 3670609, at *2 (N.D.N.Y. July 23, 2014) (“Theories presented by
redemptionist and sovereign citizen adherents have not only been rejected by the courts, but also
recognized as frivolous and a waste of court resources.”) (collecting cases)); see also, e.g., Payne
v. Klida, No. 15-cv-14127, 2016 WL 491847, at **3-4 (E.D. Mich. Jan. 6, 2016) (citing cases).
Moreover, to the extent that Plaintiff seeks release from prison, his action is not
properly considered in this action. 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
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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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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), because it is frivolous.
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: February 27, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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