Opinion
Case No. 03-10231-BC.
July 30, 2004
ORDER OF DISMISSAL
The plaintiff, Holland Hardaway, found no success challenging his state court convictions for murder and a weapons offense on direct appeal or collateral review in the state and federal courts. He has now turned to the federal civil rights statute, 42 U.S.C. § 1983, in his quest for relief and he has named two state courts and some of its judges as defendants in his pro se complaint. The plaintiff alleges that he has been denied the constitutional right to access to the courts because his direct appeal to the state intermediate appellate court was dismissed when his court-appointed attorney failed to file an appellate brief on time. The plaintiff has been allowed to proceed in forma pauperis here and this Court has reviewed the complaint to determine if the claims are frivolous under portions of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915(e)(2) and 1915A. Because the Court finds that the complaint is frivolous and devoid of merit, the Court will dismiss the complaint sua sponte.
I.
Holland Hardaway is an inmate currently confined at Mound Correctional Facility in Detroit, Michigan. He has filed a pro se civil rights complaint under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. The caption to the complaint names the Michigan Court of Appeals and the former Recorder's Court for the City of Detroit as defendants. The body of the complaint names former state circuit court Judge Karen Fort Hood and Michigan Court of Appeals Judges Harold Hood, Kurtis T. Wilder, and Brian K. Zahra as additional defendants.The plaintiff alleges in his complaint that he has been convicted of second-degree murder and possession of a firearm during the commission of a felony. He filed a claim of appeal through counsel, but his attorney failed to perfect the appeal by filing a timely brief. As a result, the appeal was dismissed. The plaintiff then hired an attorney who filed a delayed application for leave to appeal, but a panel of the Michigan Court of Appeals dismissed it under the state appellate rules because more than twelve months had elapsed between entry of the judgment of sentence and the filing of the delayed application for leave to appeal. The plaintiff applied to the Michigan Supreme Court for relief, but the supreme court denied leave to appeal because it was not persuaded that the questions merited review. The supreme court stated that the court of appeals lacked authority to grant the delayed application for leave to appeal, but the plaintiff could file a motion for relief from judgment in the trial court and argue in such a motion that his first appellate attorney's neglect established "good cause" for failing to raise his current issues in the appeal of right.
The plaintiff followed that advice and filed a motion for relief from judgment, which Judge Karen Hood denied on the merits in a written opinion. The plaintiff appealed Judge Karen Hood's decision, but a different panel of the Michigan Court of Appeals consisting of Judges Kurtis T. Wilder, Harold Hood, and Brian K. Zahra denied leave to appeal for lack of merit in the grounds presented. The Michigan Supreme Court subsequently denied leave to appeal because, once again, it was not persuaded to review the plaintiff's claims.
The plaintiff then sought relief in federal court by filing a petition for the writ of habeas corpus. A United States District Court Judge dismissed the plaintiff's habeas corpus petition as time-barred, and the United States Court of Appeals for the Sixth Circuit denied a certificate of appealability. The United States Supreme Court denied the plaintiff's petition for a writ of certiorari.
The plaintiff contends here that he was denied effective assistance of counsel when his attorney failed to file a timely brief in the Michigan Court of Appeals and delayed informing the plaintiff that his appeal of right had been dismissed. He asserts that Judge Karen Hood did not make any findings of fact or conclusions of law with respect to the plaintiff's ineffective-assistance-of-counsel claim. He contends that the Michigan Court of Appeals and its judges denied him access to the courts by failing to provide an appeal of right or meaningful review of his claims and by not considering an obvious Sixth Amendment violation claim. The plaintiff seeks a declaratory judgment stating that he was denied his constitutional right to an appeal and an injunction requiring the Michigan Court of Appeals to restore his appeal of right.
II.
The plaintiff has been allowed to proceed without prepayment of fees. See 28 U.S.C. § 1915(a); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997). His complaint states that he seeks relief against a state court and its judicial officials acting in their official capacity. Title 28 Sections 1915A(a) and (b), United States Code, provide that "in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, . . . the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint — (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Further, 25 U.S.C. § 1915(e)(2)(B) states:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). "A complaint lacks an arguable basis in law or fact if it . . . is based on legal theories that are indisputably meritless." Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (citing Neitkze, 490 U.S. at 327-28). A complaint fails to state a claim "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown, 207 F.3d at 867. Sua sponte dismissal is appropriate if the complaint lacks an arguable basis when filed. McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997).
A pro se litigant's complaint is to be construed liberally, Middleton v. McGinnis, 860 F. Supp. 391, 392 (E.D. Mich. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); that is, pro se pleadings are held to a "less stringent standard" than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). Such complaints, however, must plead facts sufficient to show a legal wrong has been committed from which plaintiff may be granted relief. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F. Supp. 2d 748, 755 (E.D. Mich. 2001).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must show that: (1) the defendant acted under color of state law and (2) the offending conduct deprived the plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). "If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail." Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
In this case, the plaintiff contends that the state courts and their judges failed to make specific findings on the plaintiff's allegations that his retained appellate counsel was ineffective for failing to file a timely appellate brief; the state post-conviction remedy was inadequate; and therefore his rights under the Sixth and Fourteenth amendments were violated. He seeks a declaration as such and an injunction requiring reinstatement of his appeal and appointment of a lawyer.
The plaintiff's claims against the Detroit Recorder's Court and the Michigan Court of Appeals lack an arguable basis in law because "[a] state court is not a `person' for purposes of 42 U.S.C. § 1983 and hence is not subject to lawsuit under that statute." Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997). In addition, the Eleventh Amendment bars civil rights actions against a state and its departments unless the state has waived its immunity. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Alabama v. Pugh, 438 U.S. 781, 782 (1978). The plaintiff has not alleged that the State or its court of appeals waived immunity, and the Court has no reason to believe that either entity is a willing party to this lawsuit. Furthermore, Eleventh Amendment immunity "bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984), by citizens of another state, foreigners or its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890)." Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993). Therefore, the plaintiff has not stated a viable claim against the Detroit Recorder's Court and the Michigan Court of Appeals.
The plaintiff's complaint is subject to dismissal for several other reasons. To the extent that the plaintiff is challenging his criminal convictions, a civil rights lawsuit under 42 U.S.C. § 1983 would not be the appropriate remedy. A claim under 42 U.S.C. § 1983 is an appropriate remedy for a state prisoner challenging a condition of his confinement, Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), but not the validity, i.e., the constitutionality, of the plaintiff's confinement. If a judgment in favor of the plaintiff on the merits would necessarily imply the invalidity of his conviction or sentence, including the process by which those convictions became final, the claim would be improper under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), where the Supreme Court held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless plaintiff can demonstrate that the conviction or sentence has already been invalidated.Id. at 487. See also Schilling v. White, 58 F.3d 1081, 1085 (6th Cir. 1995) (holding that "in order to recover damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove 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 a determination, or called into question by a federal court's issuance of a writ of habeas corpus.") (internal quotation omitted). Although the plaintiff is not seeking damages here, the principle is the same in a suit under Section 1983 for an injunction, as the Supreme Court determined in Preiser, 411 U.S. at 499.
The Court also notes that plaintiff's complaint names a Michigan state Recorder's Court and court of appeals judges as defendants. To the extent that plaintiff's complaint seeks money damages, it is frivolous. "Judges are generally absolutely immune from civil suits for money damages." Ireland v. Tunis, 113 F.3d 1435, 1439 (6th Cir. 1997) (citing Mireles v. Waco, 502 U.S. 9, 9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997)). Moreover, a judge is entitled to immunity from actions brought under 42 U.S.C. § 1983 for alleged deprivation of civil rights. Stern v. Mascio, 262 F.3d 600, 606 (6th Cir. 2001). Judicial immunity is abrogated in only two situations:
First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.Mireles, 509 U.S. at 11-12.
Whether an action is judicial depends on the "`nature' and `function' of the act, not the `act itself.'" Id. at 13 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). This functional analysis generally turns on two factors set forth by the Supreme Court in Stump. First, rather than looking at a particular act in isolation, courts should "look to the particular act's relation to a general function normally performed by a judge." Mireles, 502 U.S. at 13. Second, courts must assess whether the parties dealt with the judge in his or her judicial capacity. Stump, 435 U.S. at 362.
In this case, the plaintiff's complaint is directed solely at the various judges' rulings in the plaintiff's direct appeal and collateral review motions. Rulings of this nature are "function[s] normally performed by a judge." Further, the plaintiff has sued Judges Karen Hood, Harold Hood, Wilder, and Zarha solely in their judicial capacities. Thus, both factors compel the conclusion that the plaintiff is complaining of judicial acts by those judges. Consequently, the plaintiff's action against the individual judges also must be dismissed because the judges are entitled to absolute judicial immunity. See 28 U.S.C. § 1915(e)(2)(B)(iii); 28 U.S.C. § 1915A; Neitzke, 490 U.S. at 327 (A complaint which seeks damages is frivolous and must be dismissed as to any defendant who is immune from such relief).
III.
The complaint lacks an arguable basis in law, and the Court ought not permit the plaintiff to amend his complaint to avoid a sua sponte dismissal. McGore, 114 F.3d at 612. "If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court should sua sponte dismiss the complaint." Id.
Accordingly, it is ORDERED that the plaintiff's complaint is DISMISSED as frivolous.
It is further ORDERED that the plaintiff's motions to appoint counsel [dkt #6], for preliminary injunction [dkt #7], and for a hearing [dkt #8 and #9] are DENIED as moot.