Bogard #663861 v. Allegan, County of et al
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
VILLARD T. BOGARD,
Case No. 2:17-cv-58
Honorable Gordon J. Quist
COUNTY OF ALLEGAN et al.,
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, the Court will dismiss Plaintiff’s
complaint against Defendants Allegan County, Watts, Cronin, Kengis, State of Michigan, and the
Michigan Department of Corrections for failure to state a claim.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan.
Plaintiff sues the County of Allegan, Allegan County Clerk Joyce A. Watts, Attorney Kevin W.
Cronin, Attorney Roberts A. Kengis, the State of Michigan, and the Michigan Department of
Plaintiff states that he is filing a “CRIMINAL COMPLAINT / SETTOFF AND
COUNTERCLAIM / WITHIN THE ADMIRALTY” (ECF No. 1). Plaintiff alleges that he is
currently being detained in a quasi-military foreign penal colony known as the Chippewa
Correctional Facility. Plaintiff states that he sent a commercial letter of credit / tender of payment
to Defendants on February 16, 2017. Plaintiff claims that by failing to respond, Defendants are in
breach of their fiduciary duty and are liable for “the penal sum, with respect to a negotiable
instrument.” Plaintiff alleges:
This action is against the Respondents/Defendants for unlawful
taking of Plaintiff’s life, liberty, and property. Acts that [have]
caused an injury to the reputation of the plaintiff; in fact; which state
law and federal laws give a remedy to any man pursuant and under
United States Title 18 U.S.C. 241, 242; which states in part . . . under
Michigan Constitution, Art. I, Sect. 13 “A suitor in any court of this
state has the right to prosecute or defend his suit, either in his own
proper person or by an attorney.”
See ECF No. 1, PageID.3.
As noted above, Plaintiff states that Defendants’ conduct violated his rights under
federal and state law. Plaintiff seeks damages and equitable relief.
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 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)).
Initially, the Court notes that Plaintiff’s assertion that the Court has admiralty
jurisdiction over this case has no merit.
Whether this dispute falls within the scope of our jurisdiction under
28 U.S.C. § 1333(1) depends upon whether the underlying claims
arise under a “maritime contract,” which in turn “depends upon the
nature and character of the contract, and the true criterion is whether
[the contract] has reference to maritime service or maritime
transactions.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 24, 125
S.Ct. 385, 160 L.Ed.2d 283 (2004) (quotation marks, citations, and
editorial marks omitted).
New Hampshire Ins. Co. v. Home Sav. & Loan Co. of Youngstown, Ohio, 581 F.3d 420, 423 (6th
Cir. 2009). Plaintiff has not alleged any facts showing that his claims arise under a maritime
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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
Plaintiff seeks to indirectly challenge 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)).
To the extent Plaintiff seeks 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)
Plaintiff’s allegations call into question the validity of his conviction.
Therefore, his action is barred under Heck until his criminal conviction has been invalidated.
Finally, the Court notes that a dismissal of a claim on the basis that it is barred by
Heck v. Humphrey is properly considered a dismissal under 28 U.S.C. ' 1915(g) because it fails
to state a claim on which relief can be granted. See Hunt v. Michigan, 482 F. App’x 20, 22 (6th
Cir. 2012) (a claim barred by Heck is properly dismissed for failure to state a claim); Morris v.
Cason, 102 F. App’x 902, 903 (6th Cir. 2004) (same).
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Allegan County, Watts, Cronin, Kengis, State of Michigan, and
the Michigan Department of Corrections 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). This is a dismissal as described
by 28 U.S.C. § 1915(g).
An Order consistent with this Opinion will be entered.
Dated: October 18, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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