Smith #267009 v. Parson et al
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
DERRICK LEE SMITH,
Case No. 1:17-cv-833
Honorable Robert J. Jonker
UNKNOWN PARSON et al.,
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, RULES
GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed.
Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen
out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which
raise legally frivolous claims, as well as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the
review required by Rule 4, the Court concludes that the petition must be dismissed because it fails
to raise a meritorious federal claim.
Petitioner Derrick Lee Smith presently is incarcerated with the Michigan Department
of Corrections (MDOC) at the Muskegon Correctional Facility (MCF). He sues MCF Counselor
(unknown) Parson, MCF Correctional Officer (unknown) McKenzie, and MDOC Hearings Officer
D.J. Pallas. Petitioner currently is serving eight prison terms of 22 ½ to 75 years, imposed by the
Wayne County Circuit Court on October 29, 2008, after Petitioner pled no contest to six counts of
first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(c), and two counts of
kidnaping, MICH. COMP. LAWS § 750.349. Petitioner also is serving two terms of 6 to 15 years,
when he also pled no contest to third-degree criminal sexual conduct, MICH. COMP. LAWS
Although Petitioner expressly labels his action as one seeking relief under 28 U.S.C.
§ 2254, the allegations of his complaint have nothing to do with the fact or duration of his
confinement. Instead, Petitioner complains about the conditions of his confinement. Petitioner
contends that Defendants have violated his constitutional rights by keeping him in segregation on
the basis of a mistake about the convictions for which he is imprisoned. Petitioner asserts that
Defendant Parson told him that he was being held in segregation because of his convictions for
involuntary manslaughter and weapons trafficking while in the MDOC. Petitioner claims that
prisoner Devi Smith, not Petitioner, was convicted of those offenses.
Petitioner does not identify the relief he seeks.
The instant petition is subject to summary dismissal because Petitioner is challenging
the conditions of his confinement. Where a prisoner is challenging the very fact or duration of his
physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ
of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, habeas corpus is not
available to prisoners who are complaining only of the conditions of their confinement or
mistreatment during their legal incarceration. See Martin v. Overton, 391 F.3d 710, 714 (6th Cir.
2004); Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). Complaints like the ones
raised by Petitioner, which involve conditions of confinement, “do not relate to the legality of the
petitioner’s confinement, nor do they relate to the legal sufficiency of the criminal court proceedings
which resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose, 483 F. Supp.
661, 672 (E.D. Tenn. 1980)). An inmate like Petitioner may, however, bring claims that challenge
the conditions of confinement under 42 U.S.C. § 1983. Id.; see also Austin v. Bell, 927 F. Supp.
1058, 1066 (M.D. Tenn. 1996).
Because Petitioner challenges only the conditions of his
confinement, his claims “fall outside of the cognizable core of habeas corpus relief.” See Hodges
v. Bell, 170 F. Appx 389, 393 (6th Cir. 2006).
Although pro se litigants are treated to less stringent pleading formalities, courts still
require such litigants to meet basic pleading standards. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989). “Arguably, hanging the legal hat on the correct peg is such a standard, and ‘[l]iberal
construction does not require a court to conjure allegations on a litigant’s behalf.’” Martin, 391 F.3d
at 714 (quoting Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001) (dismissing a § 1983 suit
brought as a § 2254 petition)). The Sixth Circuit has held that where, as here, the claims about the
conditions of confinement are not cognizable in an action under § 2254, the district court must
dismiss the habeas action without prejudice to allow the petitioner to raise his potential civil rights
claims properly in a § 1983 action. Martin, 391 F.3d at 714.1
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a claim that is cognizable in a habeas action.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989)
(it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant service
The Court notes that Petitioner has filed dozens of “habeas” actions in this Court and the Eastern District of
Michigan. This is not the first occasion on which this Court or the Eastern District of Michigan have dismissed such
actions because a habeas proceeding is not the proper vehicle for raising his claims about the conditions of his
confinement. See, e.g., Smith v. Dietz et al., No. 1:17-cv-314 (W.D. Mich. Apr. 18, 2017); Smith v. Heyns et al.,
No. 1:13-cv-1305 (W.D. Mich. Dec. 19, 2013); Smith v. Harry, No. 1:17-cv-10285 (E.D. Mich. Feb. 21, 2017).
under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate
would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). In applying this standard, the Court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
A Judgment and Order consistent with this Opinion will be entered.
September 25, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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