Opinion
Case No. 1:03-cv-813
January 13, 2004
JUDGMENT
In accordance with the memorandum opinion issued herewith:
IT IS ORDERED that plaintiff's motions (docket #'s 6, 12, 19, 20, 27) are DENIED.
IT IS FURTHER ORDERED that plaintiff's claim against defendant Todd Miller relating to conditions of confinement at the Calhoun County jail are dismissed for lack of exhaustion pursuant to 42 U.S.C. § 1997e.
IT IS FURTHER ORDERED that the remainder of plaintiff's complaint is dismissed for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915 A.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.
MEMORANDUM OPINION
This is a civil rights action brought pro se by a state prisoner pursuant to 42 U.S.C. § 1983. (Complaint ¶¶ 1, 2). Plaintiff is an inmate at the Calhoun County jail. ( Id. ¶ 2). In 2003, plaintiff was convicted of criminal charges in Calhoun County Circuit Court related to guns and marijuana discovered during a search of plaintiff's home on July 5, 2000. (Complaint ¶¶ 38, 46 citing Calhoun County Case No. 03-507FH). Plaintiff states that he pleaded "no contest" to the criminal charges "to avoid 8 to 20 years" imprisonment. ( Id. p. 22). Judge Conrad Sindt sentenced plaintiff to serve seven months' incarceration in the Calhoun County jail, followed by three years of probation. ( Id. ¶ 47). Plaintiff's attorney filed an appeal of plaintiff's criminal conviction to the Michigan Court of Appeals on November 26, 2003. See People v. Southwell, case no. 251581 (Mich.Ct.App.).Plaintiff filed this pro se lawsuit on November 10, 2003. The four named defendants are Calhoun County Deputy Sheriff Todd Miller and three City of Battle Creek police officers: Officer Andrew Horn; Officer Thomas Miller; and Sergeant John Chernenkov. Plaintiff claims that defendants' actions in connection with the search of plaintiff's home resulting in his criminal conviction violated his rights under the 2d 4 th, 5th, 6th, and 14th Amendments, state-law trespass, other state-law torts, and the state-law crime of "felonious assault." Although Judge Sindt is not named as a defendant, plaintiff complains that Judge Sindt should have granted a motion to quash the seized evidence, recused himself, granted other motions made in the criminal case, and sentenced plaintiff to a shorter sentence. Plaintiff asks this court for the following relief: (1) order a "writ of release" pending the outcome of this lawsuit; (2) order that defendants serve no less jail time than plaintiff must now serve as the result of his criminal conviction; and (3) order an award of monetary damages against defendants.
The matter is before the court upon five motions by plaintiff: motion for injunctive relief (docket # 6); motion for sanctions against Calhoun County Correctional Facility (docket #12); motion for release upon bond pending resolution of plaintiff's civil rights lawsuit (docket # 20); and "motion for a writ of superintending control." (docket # 27). Upon review, all plaintiff's motions will be denied.
The matter is also before the court for screening pursuant to 28 U.S.C. § 1915A and 42 U.S.C. § I997e. See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997); see also Portis v. Michigan Dep't of Corrections, No. 03-1414, 2003 WL 22746081, at* 1 (6th Cir. Nov. 19, 2003) ("The screening procedures established by § 1915A apply whether the plaintiff has paid the entire filing fee or is proceeding 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. 28 U.S.C. § 1915 A. 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). 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). 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 pursuant to 28 U.S.C. § 1915A, with the exception of plaintiff's claim against defendant Todd Miller arising from plaintiff's loss of his job as a "trustee/inmate worker" at the Calhoun County Jail. This claim will be dismissed pursuant to 42 U.S.C. § 1997e for lack of exhaustion.
Discussion of Plaintiff's Motions
Plaintiff's motions require little discussion. Plaintiff's "Motion for a Writ of Superintending Control" asks this court to "immediately order the [state court to] release of Donald Dale Southwell from confinement." This court does not have direct supervisory authority over the state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). Plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983, which is not an appropriate vehicle to seek release from state custody. This court will not construe plaintiff's civil rights claim as a habeas corpus petition to avoid the potential adverse impact under the PLRA of having a subsequent challenge to plaintiff's criminal conviction dismissed as a second or successive petition. See Castro v. United States, 124 S.Ct. 786, 792 (2003); see also Parker v. Phillips, No. 01-5325, 2001 WL 1450704, at * 2 (6th Cir. Nov. 7, 2001). Plaintiff's motion for a writ of superintending control will be denied. Plaintiff's motion for release on bond pending a decision upon the present lawsuit (docket # 20) and plaintiff's motion for injunctive relief (docket # 6) will be denied for the same reasons. Plaintiff's "motion for sanctions" (docket # 12) complains about various aspects of confinement within the Calhoun County Jail, and then asks this court to order that plaintiff be placed in "home confinement" as his preferred alternative to jail. Such sentencing decisions are clearly for the state courts.Plaintiff's "Motion for Production of Documents" (docket #19) does not seek production of documents from any of the four named defendants. Instead, plaintiff seeks an order from this court compelling non-party attorney Matthew Glaser, the attorney who defended plaintiff in state court on the criminal charges, to produce all documents in the attorney's possession, custody, or control relating the criminal case against plaintiff. The validity of plaintiff's criminal conviction and the actions taken by defense counsel are not properly before this court for review. Plaintiff's motion will be denied.
Having addressed plaintiff's motions, the court will proceed to the screening of plaintiff's complaint.
Facts
Plaintiff alleges that on July 5, 2002, at approximately 11:00 p.m., defendants Horn and Thomas Miller pulled their police car into the driveway of plaintiff's residence on 91/2 Mile Road in Battle Creek, Michigan. Plaintiff alleges that he lives in a rural area. He alleges that when the police arrived, he was standing in his front yard approximately one hundred feet from the front of his home and "was talking with a cab driver who had arrived to give [plaintiff] a ride to another location." The officers indicated that they were responding to a report of shots having been fired and inquired whether anyone had been shooting at plaintiff's home and whether plaintiff had heard any shots fired. Officer Thomas Miller asked plaintiff to identify himself. Plaintiff claims that he identified himself, then told the officers that they were on private property, that they were trespassing, and that they should leave. Plaintiff claims that Thomas Miller then drew his gun and attempted to coerce permission from plaintiff to search plaintiff's house. Plaintiff states that he objected to any search being conducted without a search warrant and that he told Officer Thomas Miller that he wanted to call an attorney and the Michigan State Police. (Complaint ¶¶ 16-18). Officer Horn purportedly pointed a gun at plaintiff's chest while Officer Thomas Miller went inside plaintiff's house and conducted a search. Approximately seven to ten minutes after entering the house, Thomas Miller came out, stating that he had located several guns and a couple of marijuana plants in the basement. Plaintiff states that Horn then backed up the patrol car and started loading plaintiff's "personal items" into it. ( Id. ¶ 22). Sergeant Chernenkov then arrived and took charge of the crime scene. Plaintiff states that when he made known to Chernenkov his complaints of trespass, assault, illegal search and seizure, Chernenkov responded that he could go wherever he wanted and do whatever he wanted because he had "eminent domain." Plaintiff repeated to Chernenkov his request for an attorney and the presence of the Michigan State Police. ( Id. ¶¶ 27-28).
Plaintiff alleges that he was coerced into pleading no contest to the criminal charge. He claims that prior to plaintiff's arrest, Todd Miller, then a detective with Calhoun County's cold case homicide team, told plaintiff that he would not be prosecuted for "charges from the events of July 5th 2002" in exchange for plaintiff's testimony against Curt Hoffman concerning a 1986 murder. Plaintiff claims that defendant Todd Miller threatened harm to plaintiff and his family if plaintiff did not cooperate. Plaintiff states that he went to Judge Lines of the Calhoun County District Court "to express his concerns" about Miller. Judge Lines purportedly told plaintiff to go home and that he would make some telephone calls. Plaintiff complains that "the next day, Miller again came to my home and was very upset. He yelled and badgered me with threats of prison. Said if I ever went to Judge Line again I would be found in a body bag and that I was in his cross hairs, and that I had until 3:00 p.m. that afternoon to confirm what testimony I would give against Curt Hoffman or he would see me go to prison." Plaintiff states that the next day he was "arrested by the cold case murder team from the events of July 5th 2002." ( Id. ¶ 37). Later in the same paragraph, plaintiff mentions some sort of charge against him for threatening Judge Lines. Plaintiff states that he was able to post a $ 10,000 cash bond, but it is unclear from plaintiff's complaint whether he was referring to posting bond on a charge of threatening Judge Lines or the charge of being a felon in possession of a firearm. ( Id.).
Plaintiff alleges that Todd Miller's wife worked as "judicial clerk/secretary for Judge Sindt and that Judge Sindt was a former prosecutor for Calhoun County and had prosecuted plaintiff on prior cases from back in 1975. . . ." ( Id. ¶ 39). "Plaintiff respectfully submits that Judge Sindt should have recused himself from setting [sic] in judgment of this matter and also that rulings in [sic] motions to quash, dismiss, correct the PSI and to adjourn or defer sentence were all denied showing extreme prejudice and bias." ( Id. ¶ 40).
Plaintiff alleges that non-party City of Battle Creek failed to return personal property the police seized on July 5, 2003. ( Id. ¶ 43). Plaintiff admits that he is familiar with the state-court procedure available to him to seek the return of his personal property. Plaintiff alleges that in 1996 he initiated civil proceedings in Calhoun County Circuit Court (Case No. 95-3210 CF), obtained a court order, and items that had been seized by police were returned to him. ( Id. ¶ 44).
Paragraph 48 of plaintiff's complaint makes the following allegations against defendant Todd Miller concerning the conditions of confinement at the Calhoun County jail.
48. Then after plaintiff was placed in the County jail he became a trustee/inmate worker in the kitchen. 4 days later the defendant Todd Miller who now works as a Sgt. in the jail went to a Lt. Darisham and had plaintiff placed back into his cell, showing further harassment, intimidation, and an attempt to still cause mental anguish and fear as well as an abuse of authority and power.
( Id. ¶ 48).
Discussion
Plaintiff lacks standing to initiate criminal charges against the police officers involved in the search of his home. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) (private citizen lacks standing to initiate criminal proceedings); Associated Builders Contractors v. Perry, 16 F.3d 688, 692-93 (6th Cir. 1994) (private party lacks standing to compel the state to pursue criminal or civil actions); People v. Veenstra, 60 N.W.2d 309, 311 (Mich. 1953). Plaintiff's purported criminal claims against all defendants have no legal basis and must be dismissed.Plaintiff has obvious remedies available in state court to seek return of items seized by the police. Plaintiff's complaint fails to state a claim upon which relief can be granted. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986); Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); see also Carlton v. Jondreau, No. 03-1430, 2003 WL 22146140, at * 1 (6th Cir. Sept. 16, 2003); Davis v. Clinton, No. 02-6323, 2003 WL 21801476, at * 3 (6th Cir. Aug. 4, 2003).
Plaintiff objects to Judge Sindt's denial of his motion to suppress, the denial of other motions, and the length of the sentence imposed against him. Judge Sindt is not a party to this lawsuit. Even if Judge Sindt had been named as a defendant, he would be entitled to absolute judicial immunity upon rulings he made in the criminal case against plaintiff. Mireles v. Waco, 502 U.S. 9, 11 (1991). Plaintiff is obviously dissatisfied with the results he has achieved in state court. The recourse available to plaintiff in response to adverse state-court decisions was to pursue a timely appeal in the Michigan Court of Appeals, thereafter seek leave to appeal to the Michigan Supreme Court, and if necessary apply for a writ of certiorari to the United States Supreme Court. This court lacks jurisdiction to review the state-court decisions plaintiff attempts to challenge in this lawsuit. See District of Columbia Circuit Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923)
Plaintiff's complaint, like his motions previously addressed herein, asks the court to order his immediate release from jail. Plaintiff did not bring this lawsuit pursuant to 28 U.S.C. § 2254 seeking federal habeas corpus relief from his state-court criminal conviction. This court will not construe plaintiff's civil rights claim as a habeas corpus petition given the potential adverse impact under the PLRA of having a straightforward challenge to his criminal conviction dismissed as a second or successive petition. See Castro v. United States, 124 S.Ct. 786, 792 (2003); see also Parker v. Phillips, No. 01-5325, 2001 WL 1450704, at * 2 (6th Cir. Nov. 7, 2001).
Although the issue is not now before the court, it is apparent that plaintiff has not yet exhausted his available state-court remedies for challenging his criminal conviction.
Plaintiff claims that defendants violated his Fourth Amendment rights when they conducted the July 5, 2003 search and seizure. Plaintiff alleges that police recovered firearms and marijuana plants during the search which formed the basis of the criminal charges against plaintiff. Plaintiff plead no contest and Judge Sindt imposed a sentence of incarceration. Plaintiff claims violation of his Fifth and Sixth Amendment rights when the police failed to comply with plaintiff's demands for an attorney. Plaintiff claims a violation of is rights under the Due Process Clause of the Fourteenth Amendment because his plea of nolo contendere was coerced. Plaintiff's attempt to mount constitutional challenges under § 1983 are obviously barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, a state prisoner brought a section 1983 action against two state prosecutors and a state police investigator, claiming that they knowingly destroyed exculpatory evidence and caused the use of an illegal voice-identification procedure at trial. Heck sought compensatory and punitive damages. The Supreme Court held that Heck could not recover damages under section 1983 because he failed to 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus." 512 U.S. at 486-87. Thus, if judgment in favor of a plaintiff in a section 1983 action would imply the invalidity of the conviction or sentence, the complaint must be dismissed unless the plaintiff can show the conviction or sentence has already been invalidated. Id. at 487. Under the doctrine of Heck v. Humphrey, a plaintiff must first be successful in setting aside his state conviction before he may bring a section 1983 claim that calls into question the validity of the conviction or sentence. See Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir. 1999). In the present case, plaintiff has failed to allege that his sentence has been invalidated on state appeal or by collateral state review. Therefore, under the square holding of Heck v. Humphrey, plaintiff may not maintain a civil rights action implying the invalidity of his state sentence unless and until he is successful in invalidating that sentence on direct or collateral review.
At this point, it is appropriate to note that plaintiff's plea waived any objections to non-jurisdictional defects. See Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003) (Under Michigan law, a plea of nolo contendere waives issues that could have been raised on appeal, such as search and seizure claims or Fifth Amendment claims.); see also Howard v. White, No. 03-1042, 2003 WL 22146139, at *2 (6th Cir. Sept. 16, 2003) ("A nolo contendere plea stands on equal footing with a guilty plea" and it "constitutes a waiver of all pre-plea non-jurisdictional constitutional deprivations."); Terrell v. Trippett, No. 94-1934, 1995 WL 140836, at * 2 (6th Cir. Mar. 29, 1995); accord United States v. Bell, 350 F.3d 534, 536 (6th Cir. 2003).
Plaintiff's claim that defendant Todd Miller's actions cost plaintiff his job as a "trustee/inmate worker" at the Calhoun County Jail must be dismissed for other reasons. Plaintiff did not enjoy any federally protected right to jail employment. It is well established that loss of such employment is not an atypical and significant hardship in relation to the ordinary incidents of confinement. See Sandin v. Conner, 515 U.S. 472, 484 (1995); see also, Williams v. Wilkinson, Nos. 01-3082, 01-3234, 2002 WL 31558075, at *4 (6th Cir. Nov. 15, 2002). To the extent that plaintiff is now attempting to assert a claim of retaliation or some other claim, plaintiff has not alleged that he has exhausted his administrative remedies with regard to such a claim. Accordingly, this claim against defendant Todd Miller will be dismissed pursuant to 42 U.S.C. § 1997e for lack of administrative exhaustion. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999); see also Anderson v. Meeks, No. 03-5312, 2003 WL 22435648, at * 2 (6th Cir. Oct. 23, 2003); Jones v. Warren County, No. 02-6433, 2003 WL 21456206, at * 1 (6th Cir. June 20, 2003).
Conclusion
For the reasons set forth herein, plaintiff's motions (docket #'s 6, 12, 19, 20, 27) will be denied. Plaintiff's claim against defendant Todd Miller with regard to Miller's alleged actions at the Calhoun County Jail resulting in the loss of plaintiff's jail employment will be dismissed for lack of administrative exhaustion pursuant to 42 U.S.C. § I997e. Plaintiff's remaining claims against all defendants will be dismissed for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A. For the same reasons, any appeal of this decision would be frivolous. Leave to appeal in forma pauperis will therefore be denied.