UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TAMIKA DAVIS-EVANS,

 

Plaintiff, Civil No. 2:15-CV-12491

HONORABLE ARTHUR J. TARNOW

v. UNITED STATES DISTRICT JUDGE

CHIEF DONALD F. PUSSENL, et. al.

Defendants,

________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. Introduction

Tamika Davis-Evans, (“Plaintiff”), confined at the Huron Valley Women’s

Correctional Facility in Ypsilanti, Michigan, filed a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983. For the reasons that follow, the complaint is

DISMISSED WITHOUT PREJUDICE. 

II. Standard of Review

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). 

However, 28 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 

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 (iii) seeks monetary relief against a defendant who is immune from such

relief. 

 

28 U.S.C. § 1915(e)(2)(B).

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 Neitzke, 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.” Id. at 867. Sua sponte

dismissal is appropriate if the complaint lacks an arguable basis when filed.

McGore, 114 F. 3d at 612.

To establish a prima facie case under 42 U.S.C. § 1983, a civil rights

plaintiff must establish 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). “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).

III. Complaint

Plaintiff claims that the defendants failed to properly investigate criminal

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charges against her in Saginaw Township, Michigan, which lead to her wrongful

criminal convictions. Plaintiff seeks monetary damages and the expungement of

her convictions from her records. Plaintiff does not specify what charges that she

was convicted of, but the Michigan Department of Corrections’ Offender Tracking

Information System (OTIS), which this Court is permitted to take judicial notice of,

See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004),

indicates that plaintiff was convicted of attempted forgery, attempted uttering and

publishing, several counts of illegal use of a financial transaction device, and

larceny in a building, for which she is currently serving a prison sentence.

IV. Discussion

Plaintiff’s complaint is subject to dismissal.

Plaintiff is unable to obtain monetary damages arising from her criminal

conviction absent a showing that her criminal conviction had been overturned. To

recover monetary damages for an allegedly unconstitutional conviction or

imprisonment, a § 1983 plaintiff must prove that the conviction or sentence was

reversed on direct appeal, expunged by executive order, declared invalid by a

state tribunal, or called into question by the issuance of a federal writ of habeas

corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994); See also Alkire v.

Irving, 330 F.3d 802, 816, n. 10 (6th Cir. 2003). Because plaintiff does not allege

that her conviction has been overturned, expunged, or called into question by a

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writ of habeas corpus, her allegations relating to her criminal prosecution,

conviction, and incarceration against the defendants fail to state a claim for which

relief may be granted and must, therefore, be dismissed. See Adams v. Morris,

90 Fed. Appx. 856, 858 (6th Cir. 2004); Dekoven v. Bell, 140 F. Supp. 2d 748,

756 (E.D. Mich. 2001). 

To the extent that plaintiff is seeking to have her criminal conviction

vacated or set aside in this civil rights action, the civil rights complaint is subject

to dismissal. Where a state prisoner is challenging the very fact or duration of his

or her physical imprisonment and the relief that he or she seeks is a

determination that he or she is entitled to immediate release or a speedier

release from that imprisonment, his or her sole federal remedy is a petition for

writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A plaintiff

cannot seek injunctive relief relating to his or her criminal conviction in a § 1983

action. Nelson v. Campbell, 541 U.S. 637, 643 (2004). Instead, “§ 1983 must

yield to the more specific federal habeas statute, with its attendant procedural

and exhaustion requirements, where an inmate seeks injunctive relief challenging

the fact of his conviction or the duration of his sentence.” Id. 

To the extent that plaintiff is seeking to be released from custody, her

action should be filed as a petition for a writ of habeas corpus and not a civil

rights suit under § 1983. This Court will not, however, convert the matter to a

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petition for a writ of habeas corpus. When a suit that should have been brought

under the habeas corpus statute is prosecuted instead as a civil rights suit, it

should not be “converted” into a habeas corpus suit and decided on the merits.

Pischke v. Litscher, 178 F. 3d 497, 500 (7th Cir. 1999). Instead, the matter

should be dismissed, leaving it to the prisoner to decide whether to refile it as a

petition for writ of habeas corpus. Id. This Court cannot treat plaintiff's complaint

as an application for habeas corpus relief because the Court has no information

that the plaintiff has exhausted her state court remedies, as required by 28 U.S.C.

§ 2254(b) & (c), to obtain federal habeas relief. Parker v. Phillips, 27 Fed. Appx.

491, 494 (6th Cir. 2001). Moreover, any habeas petition would be subject to

dismissal because plaintiff has failed to name the appropriate state official as the

respondent. See Clemons v. Mendez, 121 F. Supp. 2d 1101, 1102 (E.D. Mich.

2000). Finally, Heck clearly directs a federal district court to dismiss a civil rights

complaint which raises claims that attack the validity of a conviction; it does not

direct a court to construe the civil rights complaint as a habeas petition. See

Murphy v. Martin, 343 F. Supp. 2d 603, 610 (E.D. Mich. 2004).

When a prisoner’s civil rights claim is barred by the Heck v. Humphrey

doctrine, the appropriate course for a federal district court is to dismiss the claim

for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), rather

than to dismiss the complaint with prejudice as being frivolous, because the

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former course of action is not an adjudication on the merits and would allow the

prisoner to reassert his or her claims if the conviction or sentence is later

invalidated. See Murphy v. Martin, 343 F. Supp. 2d at 609. Therefore, because

the Court is dismissing plaintiff’s § 1983 complaint under Heck, the dismissal will

be without prejudice. See e.g. Finley v. Densford, 90 Fed. Appx. 137, 138 (6th

Cir. 2004). 

V. ORDER

Based upon the foregoing, IT IS ORDERED that the complaint is DISMISSED

WITHOUT PREJUDICE.

S/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

Dated: August 27, 2015

I hereby certify that a copy of the foregoing document was served upon

parties/counsel of record on August 27, 2015, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Assistant

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