Smith #212103 v. Granholm et al

Filing 5

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 3 and dismissing complaint ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

K E N N E T H SMITH #212103, P l a in tif f , F ile No. 2:08-CV-104 v. HON. ROBERT HOLMES BELL J E N N IF E R GRANHOLM, et al., D e f e n d a n ts . / O R D E R ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT O n June 5, 2008, United States Magistrate Judge Timothy P. Greeley issued a Report a n d Recommendation ("R&R") recommending that Plaintiff Kenneth Smith's 42 U.S.C. § 1983 prisoner civil rights complaint be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1 9 1 5 A (b ), and 42 U.S.C. § 1997e(c) for failure to state a claim. Plaintiff filed objections to th e R&R on June 11, 2008. This Court is required to make a de novo determination of those portions of the R&R to which objection has been made, and may accept, reject, or modify any or all of the M a g is t r a t e Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b ). The R&R recommends dismissal of Plaintiff's complaint because the allegations are to o broad and conclusory to deserve serious consideration, and because Plaintiff appears to

b e challenging his state court conviction, a challenge which should be brought as a petition f o r habeas corpus and not as a civil rights action. Plaintiff objects to the R&R's conclusion that he has failed to state a claim. However, in response to the R&R Plaintiff has alleged his claims against each Defendant with more p a rticu lar ity. Plaintiff also objects to the R&R because he denies that he is challenging his s ta te conviction or the fact or duration of his incarceration. Plaintiff's complaint, as supplemented by his objections, alleges that Defendants ( in c l u d in g the governor, judges, prosecuting attorneys, defense attorneys, and police officers) v io la te d his civil rights by obtaining his conviction through false evidence. He asserts that h e is innocent of the crime and that there is no physical or circumstantial evidence to support h is conviction. Plaintiff requests monetary damages as well as a new trial and relief from his ille g a l imprisonment. Notwithstanding Plaintiff's protestations, it is clear from his complaint and objections th a t he is challenging the constitutionality of his state court conviction. "Suits challenging th e fact or duration of confinement fall within the traditional scope of habeas corpus and a c co rd in g ly are not cognizable under § 1983." Lockett v. Suardini, 526 F.3d 866, 872 (6th C ir. 2008) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973)). Moreover, to the extent P la in tif f is seeking monetary damages for civil rights violations, his complaint is barred by H e c k v. Humphrey, 512 U.S. 477 (1994). In Heck the Supreme Court held that in order to recover damages for allegedly unconstitutional conviction or im p riso n m e n t, or for other harm caused by actions whose unlawfulness would 2

re n d e r a conviction or sentence invalid, a § 1983 plaintiff must prove that the c o n v ic tio n or sentence has been reversed on direct appeal, expunged by e x e cu tiv e order, declared invalid by a state tribunal authorized to make such d e te rm in a tio n , or called into question by a federal court's issuance of a writ of h a b e as corpus, 28 U.S.C. § 2254. A claim for damages bearing that re la tio n s h ip to a conviction or sentence that has not been so invalidated is not c o g n iz a b le under § 1983. Id . at 486-87 (footnote omitted). "Heck bars § 1983 plaintiffs from advancing claims that, if successful, would necessarily imply the invalidity of a prior conviction or sentence." S.E. v . Grant County Bd. of Educ., No. 07-6330, -- F.3d --, 2008 WL 4527524, at *5 (6th Cir. O c t. 10, 2008) (quoting Cummings v. City of Akron, 418 F.3d 676, 682 (6th Cir. 2005)). " T h is ensures that habeas corpus remains the exclusive remedy for criminal defendants who h a v e not obtained a favorable termination in their criminal proceedings and does not allow d u p lic a tiv e , collateral attack of convictions or sentences through § 1983 actions." Id. at *3. " `[ A ] challenge to a criminal investigation that led to a conviction necessarily challenges the v a lid ity of the conviction, and therefore falls within the Heck framework.'" (q u o tin g Morris v. City of Detroit, 211 F. App'x 409, 411 (6th Cir. 2006)). Plaintiff's § 1983 claims, if successful, would necessarily imply the invalidity of his p rio r conviction. Plaintiff has not obtained a favorable termination in his criminal Id. at *4

p ro c e ed in g . His § 1983 claims are accordingly barred by the Heck doctrine. Accordingly, I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 4) are DENIED. I T IS FURTHER ORDERED that the Report and Recommendation of the

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M a g i str a te Judge (Dkt. No. 3) is APPROVED and ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c). I T IS FURTHER ORDERED that this dismissal shall count as a STRIKE for p u rpo ses of 28 U.S.C. § 1915(g). I T IS FURTHER ORDERED that the Court finds no good-faith basis for appeal w ith in the meaning of 28 U.S.C. § 1915(a)(3).

Dated: October 30, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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