Holloway #656449 v. Wiley 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

JEFFERY BERNARD HOLLOWAY,
Plaintiff,

Case No. 1:17-cv-129

v.

Honorable Janet T. Neff

DENNIS M. WILEY 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 Jeffery Bernard Holloway presently is incarcerated at the Parnall
Correctional Facility. He sues the following Defendants: Berrien County trial court judges Dennis
M. Wiley and Gary J. Bruce; defense attorney Rodney C. Fuller; probation officers Randolph C.
Coultes and Amber L. Glendening; the Berrien County Sheriff Department; the Berrien County
Courthouse; the Berrien County Administration Center; and the Michigan Department of
Corrections.
Plaintiff alleges that he pleaded guilty before Judge Angela Pasula in the Berrien
County District Court to embezzlement of more than $1,000.00 but less than $20,000.00, under a
plea agreement to be sentenced within the guideline range and with a recommendation for restitution
of $5,081.63. On August 20, 2007, he was sentenced to five years’ probation.
On May 6, 2011, Plaintiff appeared before Defendant Bruce to show cause why his
probation should not be violated, apparently for failure to make payments on his restitution.
Defendant Bruce did not advise Plaintiff of his right to be brought before his original sentencing
judge. Plaintiff told Defendant Bruce that he had only been sporadically employed and most of his
unemployment payments went toward paying child support, while he resided in homeless shelters.
Nevertheless, Plaintiff pleaded guilty to failing to make monthly payments on fines, costs and
restitution. Defendant Bruce continued Plaintiff’s probation and noted that he already had been
sentenced to the maximum probation term. Defendant Bruce advised Plaintiff that he could go to
jail and then be released from probation. Otherwise, Plaintiff had three months to find a job and pay
the $5,000.00 owed or face possible imprisonment. Plaintiff was never advised of his right to seek

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to have the restitution amended, lowered or dismissed. The probation-violation report was
completed by Defendants Glendening and Coultes.
After being laid off from the Radisson Hotel in Kalamazoo in 2009, Plaintiff had
reported to probation officers in Detroit, Kalamazoo and Saginaw, as he sought jobs. On November
15, 2011, Plaintiff immediately reported by phone to a probation officer in Wayne County, after
having received a letter from Defendant Coultes at his approved Detroit address. The officer
advised Plaintiff to turn himself in, because a warrant had issued against him. On November 30,
2011, Plaintiff called Defendant Coultes and explained that he was unable to turn himself in to
Berrien County because of his lack of resources and family support. Coultes informed Petitioner
that, if he was stopped, he would be arrested. But Coultes indicated that, when Plaintiff came to
Berrien County, he would talk to the judge about getting Plaintiff off probation, though he would
still be responsible for the restitution.
Two months later, on February 28, 2012, Plaintiff became employed, and he held the
same continuous position for more than three years in Detroit. During that time, Plaintiff paid his
child support in accordance with his support order. The bench warrant for not paying child support
was dismissed in May 2012.
Plaintiff called Defendant Coultes on September 28, 2015, in an attempt to resolve
the restitution warrant. He was transferred to an unknown officer. Plaintiff asked how much he
would need to pay to get the warrant for non-payment dismissed. The officer said that, because
Plaintiff had waited four years and had absconded, there was nothing he could do. Plaintiff denied
having absconded.

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In December 2015, after being advised by Immigration and Custom Enforcement that
Plaintiff was on a cruise ship scheduled to dock on December 10, 2015, Defendants reissued the
warrant, and Plaintiff was arrested in Fort Lauderdale, Florida, as he disembarked from the cruise.
The new warrant listed the two probation violations from November 2011, together with another
violation for failing to report on December 1, 2011. Plaintiff was extradited to Berrien County,
Michigan.
Although Plaintiff maintained that he was guilty only of not paying restitution, his
attorney recommended that he plead guilty to all three charges with the recommendation from the
probation supervisor of a maximum sentence of six months. Defendant Wiley sentenced Plaintiff
on January 20, 2016, to 18 to 60 months’ imprisonment.
Plaintiff sought counsel on appeal, and the State Appellate Defender Office was
appointed. Counsel on appeal filed a motion in the Berrien County Circuit Court to vacate the
conviction because the court lacked jurisdiction, as the warrant was not issued until four years after
the term of probation had expired. In addition, the motion argued that Plaintiff had been unable to
pay, but the court had imposed sentence without inquiring into Plaintiff’s ability to pay. The motion,
filed on July 19, 2016, has not yet been heard or decided.
Plaintiff contends that his conviction should be vacated and expunged because the
trial court lacked jurisdiction to impose a prison sentence. He also argues that he should not have
been required to enter a plea and be sentenced in front of a judge who did not impose the term of
probation. In addition, he claims that Berrien County, after being notified of his inability to pay,
violated the Equal Protection Clause by finding him guilty of a probation violation for failing to pay.

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Plaintiff also contends that he has been sentenced in violation of the Eighth Amendment, because
his sentence was disproportionate to the offense committed.
For relief, Plaintiff seeks release from prison, expungement of his conviction,
reprimand of Defendants Wiley and Fuller, and immunity from further prosecution. He also seeks
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.
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

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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
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. 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)).

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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 do not clearly call into question the
validity of his conviction. Therefore, his action is barred under Heck until his criminal conviction
has been invalidated.
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).

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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 10, 2017

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

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