Harris 476889 v. Kitchka ( 2019 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ LARRY DEVONTE HARRIS, Plaintiff, Case No. 1:19-cv-954 v. Honorable Robert J. Jonker ERIN KITCHKA et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. 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(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 for failure to state a claim. Discussion I. Factual allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Michigan Reformatory (RMI) in Ionia, Ionia County, Michigan. However, the events about which he complains concern actions taken in Kent County to prosecute and bind him over to the circuit court on charges of third-offense domestic violence, Mich. Comp. Laws § 750.814, interfering with electronic communications, Mich. Comp. Laws § 750.540(5)(a), and assault with a dangerous weapon (felonious assault), Mich. Comp. Laws § 750.82. Plaintiff sues Judge William G. Kelly of the 62-B District Court in Kentwood, Michigan; Kent County Prosecutors Christopher Becker, Travis Early, and Alex Grimes; and City of Kentwood Police Detective Erin Kitchka. Plaintiff alleges that, on September 6, 2017, Defendant Kitchka signed an affidavit in support of warrant to arrest Plaintiff, averring that Plaintiff had committed the offenses of felonious assault and interfering with electronic communications. Plaintiff argues that the affidavit was false, because the police reports signed by responding officers originally listed the offense as assault and battery, not felonious assault. Plaintiff attaches the affidavit of probable cause (Ex. A to Compl., ECF No. 1-2, PageID.8-9) and the referenced police report (Ex. B to Compl., ECF No. 1-1, PageID.10-12).1 Plaintiff argues that Defendant Kitchka falsified the affidavit, that Defendants Early, Grimes, and Becker falsely pursued prosecution on the felonious-assault charge, and that Defendant Kelly wrongfully issued the arrest warrant on a false affidavit and improperly bound Plaintiff over for trial in the Kent County Circuit Court. In addition, Plaintiff complains that the affidavit in support of the warrant was not properly filed in the district court record and that the warrant did not contain a “corporate seal.” (Compl., ECF No. 1, PageID.4.) Plaintiff seeks to have the warrant invalidated and his criminal case abolished. He also seeks compensatory damages for his unlawful imprisonment. 1 The Court notes that, notwithstanding the discrepancy in the actual charges, the facts recited in the affidavit are fully consistent with those contained in the police report. (Compare Ex. A to Compl., ECF No. 1-1, PageID.8-9 with Ex. B. to Compl., ECF No. 1-1, PageID.11-13.) II. 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 (1994). III. Immunity Plaintiff sues Defendant Judge William Kelly and Defendant Prosecutors Early, Grimes, and Becker. Defendants are entitled to immunity for their actions. Plaintiff claims that Judge Kelly violated his due process rights when he signed the warrant based on a false affidavit when he improperly bound Plaintiff over for trial. 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 “the 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 clearly fail to implicate either of the exceptions to judicial immunity. There is no doubt that signing a warrant and determining whether to bind a defendant over for trial after a preliminary examination were judicial acts and that Judge Kelly was acting within his jurisdiction in taking those actions. Accordingly, Judge Kelly is absolutely immune from liability. Because Judge Kelly is clearly immune from liability in this case, Plaintiff may not maintain an action for monetary damages against him. 28 U.S.C. § 1915(e)(2)(B)(iii). Moreover, injunctive relief is also not available under § 1983, because, under the 1996 amendments to that statute, injunctive relief “shall not be granted” in an action against “a judicial officer for an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; accord Savoie v. Martin, 673 F.3d 488, 496 (6th Cir. 2012). Plaintiff does not allege that a declaratory decree was violated or that declaratory relief was unavailable. Consequently, his claim for injunctive relief is barred. Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999). Further, Defendant prosecutors are also entitled to absolute immunity for their actions in prosecuting the criminal case against Plaintiff. The Supreme Court embraces a functional approach to determining whether a prosecutor is entitled to absolute immunity. Kalina v. Fletcher, 522 U.S. 118, 127 (1997); Burns v. Reed, 500 U.S. 478, 486 (1991); Forrester v. White, 484 U.S. 219, 229 (1988); accord Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010); Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir. 1998). 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); Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 1989). 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, 870 F.2d at 1137. 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). Obviously, seeking a warrant, initiating a prosecution, and representing the government during the course of a criminal prosecution are all actions taken in the role of an advocate and are intimately associated with the judicial phase of a criminal process. Accordingly, the Defendants Early, Grimes, and Becker are entitled to prosecutorial immunity. IV. Action Barred by Heck v. Humphrey Even were Defendants Early, Grimes, Becker, and Kelly not immune from suit, Plaintiff’s civil rights action against all Defendants is barred by his outstanding criminal convictions on the charges about which he complains. Plaintiff effectively challenges the legality of 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 injunctive, declaratory and 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) (injunctive relief). Plaintiff’s allegations clearly call into question the validity of his felonious-assault conviction. Therefore, his action is barred under Heck until his criminal conviction has been invalidated. A court’s 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). However, such a dismissal should be without prejudice. Sampson v. Garrett, 917 F.3d 880, 882-83 (6th Cir. 2019) (citing Taylor v. First Am. Bank-Wayne, 973 F.2d 1284, 1289 (6th Cir. 1992)). Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff’s complaint will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 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 $505.00 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 $505.00 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. Dated: December 31, 2019 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE