Opinion
Case No. 1:00-cv-503
October 2, 2000
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. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321(1996) ("PLRA"), 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. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2), 1915A. 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 for failure to state a claim.
Discussion I. Factual allegations
Plaintiff is currently incarcerated in the Brooks Correctional Facility; however, his complaint does not concern the conditions of his confinement. Plaintiff claims that the following defendants conspired to manufacture false criminal charges against him: Muskegon County Prosecutor Victor Fitz, City of Muskegon Police Detective Kenneth Wansten, City of Muskegon Police Detective Burnham, City of Muskegon Police Officer Leah Fenwick, Muskegon Central Dispatcher Roger Rolph, and Sue Berguis, a civilian residing in Muskegon. Plaintiff claims that he "was accused of committing a criminal act where no eye-witnesses were available, and, the prosecutor manufactured a separate charge for an incident that was fictional." According to plaintiff, defendants Wansten, Burnham, and Fenwick falsified reports to support the "fictional incident." Plaintiff further alleges that defendant Rolph produced a fabricated 911 tape and transcript for trial and Sue Berghuis claimed to have observed the "fictional incident." Plaintiff claims that he was not prosecuted on the "fictional incident," but the false evidence was used to obtain a conviction in the other case where there was no eye-witness. The complaint does not provide any further details regarding the nature of the "fictional incident" or the offense for which plaintiff was ultimately convicted.
Plaintiff indicates that he has a habeas corpus action pending in the Eastern District of Michigan in which he asserts that the charges were manufactured. (See Shaw v. White, No. 2:99-cv-75322 (E.D.Mich.)). Petitioner's habeas corpus action was dismissed without prejudice on June 30, 2000, because petitioner failed to exhaust his state court remedies.
For relief, plaintiff requests an investigation that will lead to prosecution of the defendants. Plaintiff also seeks an award of compensatory and punitive damages against defendants.
II. Failure to state a claim
A complaint fails to state a claim upon which relief can be granted when it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint.Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993), cert. denied, 510 U.S. 1177 (1994). 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. Corrections Corp. of America, 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 (1994).A. Sue Berghuis
Plaintiff identifies defendant Sue Berghuis as a "civilian" and claims that she participated in the manufacturing of evidence against him by claiming that she witnessed the "fictional incident." In order for a private party's conduct to be under color of state law, it must be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d at 814. There must be "a sufficiently close nexus between the State and the challenged action of [the defendant] so that the action of the latter may be fairly treated as that of the State itself." Skelton v. Pri-Cor. Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)),cert. denied, 503 U.S. 989 (1992). Plaintiff has not presented any allegations by which Berghuis' conduct could be fairly attributed to the State. Accordingly, he fails to state a § 1983 claim against defendant Berghuis.
B. Other Defendants
The remaining defendants are employees of the City of Muskegon or Muskegon County. Plaintiff has not specified whether he sues these defendants in their official or individual capacities. Alleging capacity is a "basic pleading essential," even for pro se litigants whose complaints are held to a less stringent pleading standard. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). When a pro se plaintiff fails to allege capacity, the Sixth Circuit presumes that the suit is against the defendant in his official capacity. Wells, 891 F.2d at 592-93; see also Whittington v. Milby, 928 F.2d 188, 193 (6th Cir.), cert. denied, 502 U.S. 883 (1991) (relying on Wells; Harvest v. Randolph, No. 95-3619, 1996 WL 733130, at *2 (6th Cir. Dec. 18, 1996) (where complaint "does not clearly state that the official is sued in his individual capacity, the court must treat lawsuit as one against the defendant in his official capacity"). Thus, the court presumes that plaintiff intends to sue the remaining defendants in their official capacities.
A suit against an individual in his official capacity is equivalent to a suit brought against the governmental entity; in this case, the City of Muskegon or Muskegon County. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Carter v. Cornwell, 983 F.2d 52, 55 n. 5 (6th Cir. 1993). The City of Muskegon or Muskegon County may only be liable under § 1983 when its policy or custom causes the injury. Monell v. New York City Department of Social Services, 436 U.S. 658, 694 (1978); see also Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (a governmental entity is not liable in a section 1983 case against public servants in their official capacity unless the entity's official policy or custom played a part in the alleged violation of federal law). In a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe v. Claiborne County, 103 F.3d 495, 509 (6th Cir. 1996). The policy or custom must be the moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to the governmental entity and show that the particular injury was incurred because of the execution of that policy. Doe, 103 F.3d at 508-509; Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994).
Here the complaint does not allege, nor does the evidence proffered support, a cause of action based on the "policy or custom" standard ofMonell. Where a plaintiff fails to allege that a policy or custom existed, dismissal of the action for failure to state a claim is appropriate. Moreno v. Metropolitan General Hospital, No. 99-5205, 2000 WL 353537, at *3 (6th Cir. March 28, 2000); Rayford v. City of Toledo, No. 86-3260, 1987 WL 36283, at * 1 (6th Cir. 1987); see also Bilder v. City of Akron, No. 92-4310, 1993 WL 394595, at *2 (6th Cir. 1993) (affirming dismissal of § 1983 action when plaintiff allegation of policy or custom was conclusory, and plaintiff failed to allege facts tending to support the allegation). Therefore, the court will dismiss plaintiff's action because he has failed to state a claim upon which relief may be granted.
Conclusion
Having conducted the review now required by the Prison Litigation Reform Act, the court determines that plaintiff's action fails to state a claim and will therefore be dismissed pursuant to 28 U.S.C. § 1915 (e)(2), 1915A(b); 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 $105 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 $105 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.
JUDGMENT
In accordance with the opinion filed this date:
IT IS ORDERED that plaintiff's action be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915 (e), § 1915A, and 42 U.S.C. § 1997e(c).
For the same reasons that the court dismisses the action, the court discerns no good-faith basis for an appeal. 28 U.S.C. § 1915(a)(3);McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This is a dismissal as described by 28 U.S.C. § 1915(g).