UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN LAWSON,

Plaintiff,

CASE NO. 14-12978

v. HON. JOHN CORBETT O’MEARA

DESIREE M. FERGUSON,

Defendant.

______________________________/

ORDER OF DISMISSAL

I. Introduction

This is a pro se civil rights action under 42 U.S.C. § 1983. Plaintiff

John Lawson is a state prisoner at Bellamy Creek Correctional Facility in

Ionia, Michigan. Defendant Desiree M. Ferguson was an attorney

employed by the State Appellate Defender Office during the time in

question.

The complaint and exhibits indicate that, in 2001, Plaintiff was

charged with first-degree murder. His trial attorney initially questioned

whether Plaintiff was criminally responsible for the murder due to his

mental state at the time of the crime. As a result, the attorney obtained a

court order appointing an independent psychiatric expert to interview

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 1 of 8 Pg ID 77
Plaintiff. Plaintiff claims that there was no independent examination before

trial. His trial attorney, nevertheless, maintained that Plaintiff had been

examined by an independent expert and had been found criminally

responsible and competent to waive his constitutional rights. As a result of

these findings, the attorney abandoned an insanity defense. On October

30, 2002, Plaintiff was found guilty as charged, and on November 13, 2002,

he was sentenced to mandatory life imprisonment. 

Ms. Ferguson was appointed to represent Plaintiff on appeal from his

conviction. Plaintiff allegedly informed Ms. Ferguson that he had not been

interviewed by an independent psychiatric expert. Ms. Ferguson then

agreed to investigate the matter. According to Plaintiff, Ms. Ferguson also

stated that, if Plaintiff did not see an independent psychiatric expert before

trial, she would move for appointment of an independent psychiatric expert

and Plaintiff would have to be examined by the independent expert. 

Ferguson maintained that these steps were necessary to prove that trial

counsel was ineffective for failing to obtain an independent evaluation of

Plaintiff’s mental state at the time of the offense. 

Ms. Ferguson’s office ultimately paid a licensed psychologist to

examine Plaintiff. The examination, however, occurred after Ms. Ferguson

2

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 2 of 8 Pg ID 78
filed her appellate brief in Petitioner’s case. Consequently, the appellate

brief did not raise an issue about trial counsel’s alleged failure to have

Plaintiff examined by an independent psychiatric expert.

On August 12, 2004, the Michigan Court of Appeals affirmed

Petitioner’s conviction, and on August 13, 2004, an independent licensed

psychologist interviewed Plaintiff. On September 7, 2004, the psychologist

concluded in a written report that Plaintiff was not mentally ill and that he

did not claim to be mentally ill at the time he committed the murder. 

Plaintiff now claims that Ms. Ferguson failed to disclose to him that

he should have been examined before trial, that she did not need a court

order for an independent psychiatric examination, that she did not apply for

the court order, and that she did not have a court order. He points out that

he already had a court order for appointment of an independent expert and

that Ms. Ferguson never attempted to obtain another order, opting instead

to pay for the expert’s services. Plaintiff further alleges that Ms. Ferguson

misled him into thinking that trial counsel was not ineffective for failing to

have him examined by an independent expert. Finally, Plaintiff claims that

Ms. Ferguson herself was ineffective for having him evaluated for the

insanity defense twenty-two months after he was convicted and for failing

3

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 3 of 8 Pg ID 79
to raise an appellate claim about trial counsel’s ineffectiveness. Plaintiff

seeks money damages and a declaratory judgment on the basis that Ms.

Ferguson’s acts and omissions caused him to suffer emotional distress,

lost wages, damage to reputation, and a sentence of life imprisonment. 

II. Legal Standard

Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), the Court must

dismiss a prisoner’s complaint if the Court determines that the action is

frivolous or malicious or fails to state a claim on which relief may be

granted. A complaint is frivolous if it lacks an arguable basis in law or in

fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). While a complaint

need not contain “detailed factual allegations,” the “[f]actual allegations

must be enough to raise a right to relief above the speculative level . . . on

the assumption that all the allegations in the complaint are true (even if

doubtful in fact) . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). “So, to survive scrutiny under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii),

‘a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.’” Hill v. Lappin, 630 F.3d.

468, 471 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). “A claim has facial plausibility when the plaintiff pleads factual

4

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 4 of 8 Pg ID 80
content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

III. Analysis 

Plaintiff’s complaint is frivolous and fails to state a claim for which

relief may be granted because it challenges his state conviction and

sentence. “[W]hen a state prisoner is challenging the very fact or duration

of his physical imprisonment, and the relief he seeks is a determination that

he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser

v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, Plaintiff’s claims are

“cognizable only in federal habeas corpus, with its attendant requirement of

exhaustion of state remedies.” Id. at 499 n.14. 

Furthermore,

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 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, 28 U.S.C. § 2254. A claim

for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under 1983. 

5

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 5 of 8 Pg ID 81
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnote

omitted)(emphasis in original). Heck and progeny, 

taken together, indicate that a state prisoner’s § 1983 action is

barred (absent prior invalidation) -- no matter the relief sought

(damages or equitable relief), no matter the target of the

prisoner’s suit (state conduct leading to conviction or internal

prison proceedings) -- “if success in that action would

necessarily demonstrate the invalidity of confinement or its

duration.

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis in original). 

Plaintiff has not shown that his conviction or sentence was

invalidated by state officials or called into question by a federal court on

habeas corpus review, and success on his claim about his former appellate

attorney would necessarily demonstrate the invalidity of his confinement. 

Thus, his complaint is barred by Heck and Dotson. 

The complaint is subject to dismissal for an additional reason. To

prevail in a § 1983 action, a plaintiff must prove two elements: “(1) that he

or she was deprived of a right secured by the Constitution or laws of the

United States; and (2) that the deprivation was caused by a person acting

under color of law.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). 

The sole defendant in this case was Plaintiff’s court-appointed

6

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 6 of 8 Pg ID 82
appellate attorney. Defense attorneys, even those appointed by the court,

do not act under color of law when performing traditional functions as

counsel to a defendant in a criminal proceeding. See Polk County v.

Dodson, 454 U.S. 312, 325 (1981) (public defenders); Mulligan v.

Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (private attorneys appointed

by the court). Thus, Ms. Ferguson is not a proper defendant in this lawsuit,

and Plaintiff has failed to prove an essential element of a civil rights action

under § 1983.

IV. Conclusion

Plaintiff’s allegations lack an arguable basis in law and, therefore, are

frivolous. The allegations also fail to state a plausible claim for which relief

may be granted. Accordingly, the complaint is summarily dismissed under

28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). An appeal from this order

would be frivolous and could not be taken in good faith. 

s/John Corbett O’Meara 

United States District Judge

Date: August 19, 2014

7

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 7 of 8 Pg ID 83
I hereby certify that a copy of the foregoing document was served

upon the parties of record on this date, August 19, 2014, using the ECF

system and/or ordinary mail.

s/William Barkholz 

Case Manager

8

5:14-cv-12978-JCO-MKM Doc # 5 Filed 08/19/14 Pg 8 of 8 Pg ID 84