Bush #379599 v. Heyns et al, No. 1:2013cv00347 - Document 5 (W.D. Mich. 2013)
Court Description: OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DOUGLAS P. BUSH, Plaintiff, Case No. 1:13-cv-347 v. Honorable Robert J. Jonker DANIEL H. HEYNS et al., Defendants. ____________________________________/ OPINION This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff has paid the entire civil action filing fee. 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. § 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, Plaintiff s action will be dismissed for failure to state a claim. Factual Allegations Plaintiff Douglas P. Bush presently is incarcerated with the Michigan Department of Corrections (MDOC) at the St. Louis Correctional Facility. He sues MDOC Director Daniel H. Heyns and Michigan Parole Board Director Barbara Sampson. Plaintiff makes the following allegations: Parole slated for July 3, 2012 was (SUSPENDED) for making threats because I explained to 8th Circuit Court Officials that, I know what you did and how you did it[. ] That I intended to file Criminal & Civil charges against the Court appointed attorney for CONSPIRING to (MALICIOUS PROSECUTION, OBSTRUCTION OF JUSTICE, FRAUD & PERJURY, thus forcing him to turn State Evidence against the other Court Officials. 1. I had another Parole Board Hearing on July 17, 2012. Decision was Deferred until August 17, 2012. 2. What was the decision rendered by the Parole Board? (NO RESPONSE.) ... This CIVIL TORTS CLAIM will show that MDOC Officials actions were PREJUDICIAL & DAMAGING to this inmate[ ]s future litigations. MALFEASANCE & MISFEASANCE as well as ACTUAL FRAUD shows that the MDOC Parole Board[ ]s (SUSPENDING) this inmate[ ]s Parole was intended to PUNISH Mr[.] Bush for his intent to make use of the LEGAL SYSTEM and prove the (CRIMINAL MISCONDUCT by 8th Circuit Court Officials). ABUSE OF PROCESS is yet another way to describe the actions of MDOC Officals as to their ULTERIOR PURPOSE of forcing Mr. Bush into dropping his claims of ACTUAL INNOCENCE and the CRIMINAL MISCONDUCT by Court Officials. EXTORTION IS ANOTHER LEGAL TERM that describes the Criminal intent of MDOC Officials. ... When the Court Officials went crying to MDOC Officials, He is threatening us[, ] NOT ONCE DID THEY DENY THE CLAIMS MADE AGA[IN]ST THEM! -2- (Compl., docket #1, Page ID##3-4.) Under the heading of the complaint entitled RELIEF, Plaintiff states as follows: S[i]nce this inmate is years past his minimum sentence sole[l]y because he has maintained his innocence, and the criminal misconduct of MDOC Officials and the 8th CIRCUIT COURT OFFICIALS, he should be release, TIME SERVED. In addition, because the Prosecutor stated that, It is my intention that Mr. Bush DIE IN PRISON[, ] this amounts to CONSPIRACY TO ATTEMPTED MURDER[, ] I request $20,000[,]000.00 as to General and Punitive Damages, however, because this is one big CONSPIRACY, the Court can and should go 10 times that amount. (Id., Page ID##4-5.) Discussion I. 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, 45-46 (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 -3- 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); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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). Plaintiff s complaint appears to challenge matters relating to his underlying conviction, as well as matters relating to the Michigan Parole Board s decision to deny him parole after it had already set a parole date. Specifically, he argues that he was actually innocent of his offense of conviction and that the prosecutor, by arguing that he intended to keep Plaintiff in prison for life, conspired to murder him. He also argues that he was slated for parole on July 4, 2012, but that his release was suspended following complaints from the Eighth Circuit about Plaintiff s threatening behavior. Plaintiff seeks both immediate release from prison and monetary damages. To the extent that Petitioner seeks immediate release from prison, either through an overturning of his sentence or immediate parole, his action is not the proper subject of a § 1983 action. 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 -4- 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 seeks immediate release from prison or otherwise 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 that Plaintiff seeks injunctive, declaratory and monetary relief for alleged violations of Constitutional rights, his claim is barred by Heck, 512 U.S. at 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 -5- 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. Moreover, even if his parole claim was not barred by Heck, Plaintiff s complaint falls far short of alleging a constitutional violation. First, beyond alleging a sweeping conspiracy by unnamed MDOC and Parole Board officials, Plaintiff alleges no active conduct by either of the Defendants named in his complaint. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). [A] plaintiff must plead that each Government-official defendant, through the official s own individual actions, has violated the Constitution. Iqbal, 556 U.S. at 676. Plaintiff -6- has failed to allege that Defendants Heyns or Sampson engaged in any active unconstitutional behavior. Further, to state a claim for conspiracy, a plaintiff must plead with particularity, as vague and conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by allegations of fact that support a plausible suggestion of conspiracy, not merely a possible one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985); Pukyrys v. Olson, No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). A civil conspiracy under § 1983 is an agreement between two or more persons to injure another by unlawful action. See Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012) (quoting Hooks v. Hooks, 771 F.2d 935, 94344 (6th Cir. 1985)). The plaintiff must show the existence of a single plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive the plaintiff of a federal right, and that an overt action committed in furtherance of the conspiracy caused an injury to the plaintiff. Id.; Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011). Plaintiff s allegations of conspiracy are conclusory and speculative. Construed generously, Plaintiff alleges that a panel of unidentified Parole Board members construed his written statements to the Eight Circuit as being threatening, a finding with which Plaintiff apparently disagrees. The panel apparently considered the threats to be a basis for denying Plaintiff release on parole, a decision with which Plaintiff again disagrees. Such allegations, however, fall far short of identifying any unlawful agreement, much less any agreement by these Defendants. He therefore fails to allege a conspiracy claim. -7- Moreover, Plaintiff fails to allege that the denial of parole implicated any right protected by due process. To establish a procedural due process violation, a plaintiff must prove that (1) he was deprived of a protected liberty or property interest, and (2) such deprivation occurred without the requisite due process of law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir. 2006); see also Swihart v. Wilkinson, 209 F. App x 456, 458 (6th Cir. 2006). Plaintiff fails to raise a claim of constitutional magnitude because he has no liberty interest in being released on parole. There is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991). In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994) (en banc), the Sixth Circuit, noting the broad powers of the Michigan authorities to deny parole, held that the Michigan system does not create a liberty interest in parole. In a recent published decision, the Sixth Circuit reiterated the continuing validity of Sweeton. See Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011). In Crump, the court held that the adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole release is mandated upon reaching a high probability of parole. See id.; see also Carnes v. Engler, 76 F. App x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument that the Due Process Clause is implicated when changes to parole procedures and practices have resulted in incarcerations that exceed the subjective expectation of the -8- sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan Supreme Court has recognized that there exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Until Plaintiff has served his 20-year maximum sentence, he has no reasonable expectation of liberty. The discretionary parole system in Michigan holds out no more than a mere hope that the benefit will be obtained. Greenholtz, 442 U.S. at 11. The Michigan Parole Board s failure or refusal to consider Plaintiff for parole, therefore, implicates no federal right. In the absence of a liberty interest, Plaintiff fails to state a claim for a violation of his procedural due process rights. Finally, even assuming that Plaintiff s interest in his parole was elevated to a liberty interest by a pre-release decision to grant parole that was subsequently suspended, Plaintiff fails to allege that he was deprived of procedural due process. Under the Due Process Clause, when a person is deprived of a protected liberty or property interest, he is entitled to the opportunity to convince an unbiased decision maker that, for example, he has been wrongly or falsely accused or that the evidence against him is false. The Due Process Clause does not guarantee that the procedure will produce a correct decision. It must be remembered that even if a state decision does deprive an individual of life, [liberty], or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual s right to due process. Martinez v. California, 444 U.S. 277, 284 n.9 (1980). [T]he deprivation by state action of a constitutionally protected interest in life, liberty or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original). -9- Here, Plaintiff does not allege that the Parole Board failed to provide him with the opportunity to be heard. Indeed, he specifically asserts that he received another parole hearing on July 12, 2012. The mere fact that Plaintiff disagrees with the ultimate decision of the parole board does not demonstrate that he was deprived of procedural due process. See Martinez, 444 U.S. at 284 n.9; Zinermon, 494 U.S. at 125. For all these reasons, Plaintiff s complaint will be dismissed for failure to state a claim. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff s action will be dismissed for failure to state a claim pursuant to 28 U.S.C. § 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 $455.00 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 $455.00 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: April 29, 2013 /s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE - 10 -
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