Johnson #312836 v. Micolo
Filing
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OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LYONELL JOHNSON,
Plaintiff,
v.
Case No. 2:14-cv-161
Honorable Gordon J. Quist
JOSEPH MICOLO,
Defendant.
_______________________/
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, and Plaintiff will pay the initial
partial filing fee when funds become available. 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 Lyonell Johnson presently is incarcerated with the Michigan Department
of Corrections at the Chippewa Correctional Facility. Plaintiff sues Joseph Micolo, Chief of the
Kinross District Police Department. Plaintiff’s claim appears to center around Defendant’s allegedly
false testimony during a preliminary hearing and bind over in connection with Plaintiff’s probation
violation. Specifically, Plaintiff alleges that Defendant
knowingly and deliberately as the lead arresting officer . . . verbally
committed an extrinsic circumstance while under oath on September 16,
2013 during the requested scheduled preliminary examination held in the
91st District Court of Chippewa County Michigan, before the Honorable
Chief Judge Elizabeth Church.
(Compl., docket #1, Page ID#3.) Defendant testified that a bank employee advised him that four
suspects entered the bank and cashed a check in the amount of $988.00. Plaintiff alleges that this
was false testimony as the bank employee never told Defendant that four suspects entered the bank.
Plaintiff alleges that he never entered the bank, he was never identified by a bank
employee as one of the people who entered the bank, and that the preliminary examination and bind
over were based on testimony alone as no physical evidence was produced.
Plaintiff alleges that Defendant provided false and incriminating information to the
Oakland County Probation agent Michael Tilley, who is not a defendant, concerning the criminal
investigation involving Plaintiff which caused Plaintiff to incur a probation violation in 2013.
Defendant falsely informed Tilley that Plaintiff used a fraudulent identification card to cash a
fraudulent check.
As relief Plaintiff seeks a criminal investigation and removal of Defendant as Kinross
Township Chief of Police, criminal charges against Defendant and money 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
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
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As best as can be understood, Plaintiff alleges that Defendant provided false
testimony which resulted in Plaintiff being detained for a probation violation and, presumably,
sentenced for his original offense, and charged with, and convicted of, a new offense. Although
Plaintiff does not expressly seek release from custody, were Plaintiff to prevail in this action he
would have to demonstrate that Defendant gave false testimony, which would call into question the
validity of his probation violation and sentence, and his new conviction and sentence.
To the extent Plaintiff claims that his probation violation and sentence rest on
Defendant’s false testimony and that he never violated probation, he fails to state a claim cognizable
under § 1983. 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, 493 (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). Likewise, to the extent Plaintiff claims that his new conviction
rests on Defendant’s false testimony, and that he did not commit the underlying offense, he fails to
state a claim cognizable under § 1983. See id. Therefore, to the extent that Plaintiff’s complaint
challenges the fact or duration of his incarceration, it must be dismissed. See Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005) (stating that “a state prisoner’s § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings) - if success in that
action would necessarily demonstrate the invalidity of confinement or its duration.”).
Additionally, 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
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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 probation violation conviction and his conviction based on the crime which resulted
in his probation violation, as both convictions are based on Defendant’s allegedly false testimony.
Therefore, Plaintiff’s action is barred under Heck until his convictions have been invalidated.
Finally, although Plaintiff seeks to compel authorities to bring criminal charges
against Defendant, he has no right to do so. A private citizen “lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” Diamond v. Charles, 476 U.S. 54, 63 (1986).
Simply put, Plaintiff cannot compel a criminal prosecution of Defendant because private citizens,
whether or not they are incarcerated, cannot compel a criminal prosecution of another. See
Diamond, 476 U.S. at 64-65; Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); Martin v.
Koljonen, No. 03-2169, 2004 WL 445720, at *1 (6th Cir. Mar. 9, 2004).
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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 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: September 17, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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