Parker #210492 v. Colombo 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
MICHAEL C. PARKER,
Case No. 2:17-cv-63
Honorable Gordon J. Quist
ROBERT J. COLOMBO, JR. 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 Robert J. Colombo, Jr., Unknown Colombo, John H. Gillis, Jr.,
Unknown Gillis, Kym L. Worthy, and Unknown Worthy for failure to state a claim.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. The events
about which he complains, however, occurred prior to his incarceration. Plaintiff sues Wayne
County 3rd Judicial Circuit Court Judge Robert J. Colombo, Jr. and his spouse Unknown Colombo,
Wayne County 3rd Judicial Circuit Court Judge John H. Gillis, Jr. and his spouse Unknown Gillis,
and Prosecuting Attorney Kym L. Worthy and her spouse Unknown Worthy.
In Plaintiff’s original and supplemental complaints (ECF Nos. 1 and 6), he alleges
that he served Defendants with a “Criminal Complaint & Affidavit of Obligation Claim” via
certified mail, asserting criminal acts and human rights violations committed by Defendants in the
Wayne County 3rd Judicial Circuit Court in Case Numbers 89-13474 and 89-13475. Plaintiff
attaches a copy of his Judgment of Sentence in each case to his complaint, which show that Plaintiff
received two life sentences for first-degree murder, two sentences of 2 years imprisonment for
felony firearm, a sentence of 40 to 60 years imprisonment for armed robbery, and a sentence of 40
to 60 years imprisonment for assault with intent to rob. See ECF No. 1-3. Plaintiff states that
Defendants failed to respond to his complaint. Plaintiff now seeks an order entering a default
judgment against Defendants, which would entitle Plaintiff to 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)).
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’s “Criminal Complaint & Affidavit of Obligation” is clearly an attempt to
indirectly challenge his state court criminal convictions. Therefore, the instant lawsuit, in which
Plaintiff seeks to enforce his “Criminal Complaint,” is also an attempt to challenge those
convictions. The federal courts are courts of limited jurisdiction, and Plaintiff has the burden of
proving the Court’s jurisdiction. United States v. Horizon Healthcare, 160 F.3d 326, 329 (6th Cir.
1998). Even where subject matter jurisdiction is not raised by the parties, the Court must consider
the issue sua sponte. See City of Kenosha v. Bruno, 412 U.S. 507, 511 (1973); Norris v. Schotten,
146 F.3d 314, 324 (6th Cir. 1998); Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184,
189 (6th Cir. 1993).
This Court lacks subject matter jurisdiction over Plaintiff=s claims.
district court has no authority to review final judgments of state-court judicial proceedings.
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413, 415B16 (1923). A loser in the state court may not be heard in the federal
district court on complaints of injuries by a state-court judgment rendered before the federal
proceeding commenced. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84
(2005). “The pertinent question in determining whether a federal district court is precluded under
the RookerBFeldman doctrine from exercising subject-matter jurisdiction over a claim is whether
the ‘source of the injury’ upon which plaintiff bases his federal claim is the state court judgment.”
In re Cook, 551 F.3d at 548. In this case, the source of Plaintiff’s injury is his state court
convictions. Therefore, Plaintiff’s claims are barred.
Moreover, to the extent Plaintiff seeks monetary relief for alleged violations of
Constitutional rights that occurred during his state criminal trial, 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
clearly call into question the validity of his conviction. Therefore, his action is barred under Heck
until his criminal conviction has been invalidated.
In addition, Defendants Robert J. Columbo, Jr. and John H. Gillis, Jr. are state court
judges. Generally, a judge is absolutely immune from a suit for monetary damages. Mireles v.
Waco, 502 U.S. 9, 9-10 (1991) (“[I]t is a general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising the authority vested in him, shall be
free to act upon his own convictions, without apprehension of personal consequences to himself.”)
(internal quotations omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v.
Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in
only two instances. First, a judge is not immune from liability for non-judicial actions, i.e., actions
not taken in the judge’s judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484
U.S. 219, 229 (1988) (noting that immunity is grounded in Athe nature of the function performed,
not the identity of the actor who performed it”). Second, a judge is not immune for actions, though
judicial in nature, taken in complete absence of all jurisdiction. Id. at 12.
Plaintiff’s allegations do not appear to implicate either of the exceptions to judicial
immunity. Actions taken during the trial and sentencing of a criminal defendant are a judicial act.
Accordingly, Judges Columbo, Jr. and Gillis, Jr. are absolutely immune from liability.
Consequently, Plaintiff may not maintain an action for monetary damages against them. 28 U.S.C.
Prosecutor Kym L. Worthy is also entitled to absolute immunity for her actions in
prosecuting the criminal action against Plaintiff. The Supreme Court embraces a functional
approach to determining whether a prosecutor is entitled to absolute immunity. Van de Kamp v.
Goldstein, 555 U.S. 335, 343 (2009); Kalina v. Fletcher, 522 U.S. 118, 127 (1997); accord
Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010). Under a functional analysis, a
prosecutor is absolutely immune when performing the traditional functions of an advocate. Kalina,
522 U.S. at 130; Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2003); D'Alessandro v. City
of New York, No. 17-594-CV, 2017 WL 4641256, at *3 (2d Cir. Oct. 17, 2017). The Supreme
Court has held that a prosecutor is absolutely immune for the initiation and pursuit of a criminal
prosecution. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Lomaz, 151 F.3d at 497. Acts which
occur in the course of the prosecutor’s role as advocate are entitled to protection of absolute
immunity, in contrast to investigatory or administrative functions that are normally performed by
a detective or police officer. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 276-78 (1993); Grant v.
Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 1989). In the Sixth Circuit, the focus of the inquiry is
how closely related the prosecutor’s conduct is to his role as an advocate intimately associated
with the judicial phase of the criminal process. Spurlock, 330 F.3d at 797; Ireland v. Tunis, 113
F.3d 1435, 1443 (6th Cir. 1997). Plaintiff has failed to allege any specific facts showing that the
actions of Defendant Kym L. Worthy were taken outside her role as an advocate in the judicial
phase of the criminal process. Therefore, she is entitled to immunity from damages.
Finally, the Court notes that Plaintiff’s claims against Defendants Unknown
Colombo, Unknown Gillis, and Unknown Worthy are based solely on the fact that they are married
to the other named Defendants. Where a person is named as a defendant without an allegation of
specific conduct, the complaint is subject to dismissal, even under the liberal construction afforded
to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004)
(dismissing complaint where plaintiff failed to allege how any named defendant was involved in
the violation of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing
plaintiff’s claims where the complaint did not allege with any degree of specificity which of the
named defendants were personally involved in or responsible for each alleged violation of rights);
Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring
allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010,
1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are
without a basis in law as the complaint is totally devoid of allegations as to them which would
suggest their involvement in the events leading to his injuries”).
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Robert J. Colombo, Jr., Unknown Colombo, John H. Gillis, Jr.,
Unknown Gillis, Kym L. Worthy, and Unknown Worthy 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).
A Judgment 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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