UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAVERE LEE-BRYANT,

Plaintiff,

v. Case No. 08-14200

Honorable Paul D. Borman

JOHN PRINCE, et. al.,

Defendants.

________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. Introduction

Plaintiff Lavere Lee-Bryant, a state inmate, currently confined at the Baraga Maximum

Correctional Facility in Baraga, Michigan, has filed a pro se civil rights complaint, pursuant to

42 U.S.C. § 1983. This case was originally filed in the United States District Court for the

Western District of Michigan but was transferred to this Court because Plaintiff’s allegations

occurred as a result of his confinement in the St. Louis Correctional Facility in St. Louis,

Michigan, which is in this Court’s jurisdiction. 28 U.S.C. § 2241(d). In addition to this

complaint, Plaintiff has seven complaints pending in the Western District. 

In his pleadings, Plaintiff alleges that he was placed in a segregation unit in prison in

September of 2002 for major misconducts–possession of a weapon and substance abuse, which

he contends were falsified by Defendants. Plaintiff also argues that Defendants should be found

to have violated the Thirteenth and Fourteenth Amendments of the United States Constitution, as

well as the policies of the Michigan Department of Corrections. He seeks monetary damages. 

Having reviewed the complaint, the Court will dismiss it for failure to state a claim upon
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which relief may be granted. The Court also finds that an appeal cannot be taken in good faith.

II. Discussion

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) states: 

(2) 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– 

(A) the allegation of poverty is untrue; or

(B) the action or appeal: 

(I) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or 

(iii) seeks monetary relief against a defendant who is

immune from such relief. 

28 U.S.C. § 1915(e)(2).

Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)

(“PLRA”), the Court is required to sua sponte dismiss an in forma pauperis complaint before

service on a defendant if it determines that the action is frivolous or malicious, fails to state a

claim upon which relief can be granted, or seeks monetary relief against a defendant who is

immune from such relief. See 42 U.S.C. § 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The Court is

similarly required to dismiss a complaint seeking redress against government entities, officers,

and employees which it finds to be frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks relief from a defendant who is immune from suit. See 28 U.S.C. 

§ 1915A. A complaint is frivolous if it lacks an arguable basis either in law or in fact. See

Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

To state a federal civil rights claim, a plaintiff must show that the defendant is a person
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who acted under color of state or federal law and the defendant’s conduct deprived the plaintiff

of a federal right, privilege, or immunity. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57

(1978); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). A pro se civil rights complaint is

to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Jones v. Duncan,

840 F.2d 359, 361 (6th Cir. 1988). In this case, despite the liberal pleading standard accorded

pro se plaintiffs, the Court finds that Plaintiff’s complaint is subject to summary dismissal.

In this case, Plaintiff seeks monetary damages for the alleged false imprisonment. 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, 486-87 (1994)

(holding that a state prisoner does not state a cognizable civil rights claim challenging his

imprisonment if a ruling on his claim would necessarily render his continuing confinement

invalid, until and unless the reason for his continued confinement has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal, or has been called into

question by a federal court’s issuance or a writ of habeas corpus under 28 U.S.C. § 2254). This

holds true regardless of the relief sought by the plaintiff. Id. at 487-89. Heck and other Supreme

Court cases, when “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
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duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). 

In this case, Plaintiff filed a grievance, which was not reversed. Rather, the hearing

officer found Plaintiff did knowingly possess a concealed weapon in his locker–a toothbrush

with a razor blade wrapped inside, and that Plaintiff also possessed a prison pipe, which smelled

of marijuana. Thus, pursuant to Heck, Plaintiff has failed to state a claim for a § 1983 action;

Plaintiff’s conviction or sentence was not 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. 

Against that backdrop, this Court finds that Plaintiff has failed to state a claim upon

which relief can be granted, and the Court will therefore dismiss the complaint. However, any

dismissal of a § 1983 complaint under Heck should be without prejudice. Diehl v. Nelson, 198

F.3d 244, 1999 WL 1045076 (6th Cir. November 12, 1999) (citing to Fottler v. United States, 73

F.3d 1064, 1065 (10th Cir. 1996)).

Additionally, any claims for damages for mental or emotional injuries alleged by Plaintiff

must also be dismissed because he has failed to demonstrate that he suffered any physical injury

as a result of Defendants’ actions. 42 U.S.C. 1997e(e) states:

No federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of

physical injury.

42 U.S.C. § 1997e(e) precludes claims for emotional injury without any prior physical

injury, regardless of the statutory or constitutional basis of the legal wrong. Davis v. District of

Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998). In addition, a physical injury must be more

than de minimis to support a claim for mental or emotional suffering under the Eighth
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Amendment and § 1997e(e). Robinson v. Corrections Corp. of America, 14 Fed.Appx. 382, 383

(6th Cir. 2001) (citing Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), modified by, 216

F.3d 970 (11th Cir. 2000); Harper v. Showers, 174 F.3d 716, 719-20 (5th Cir. 1999)). Plaintiff’s

complaint likewise alleges only a de minimis injury that would not support the award of damages

for mental and emotional injury under § 1997e(e).

Under § 1997e(e), Plaintiff would be unable to recover for emotional distress for being

placed in segregation, unless he first suffered a physical injury that was a result of her being

confined in segregation, rather than in the general population. West v. McCaughtry, 971 F.Supp.

1272, 1276 (E.D. Wis. 1997). Because Plaintiff has made no allegation of receiving any

physical injury as a result of being placed in segregation, he cannot recover for any alleged

emotional distress that he may have suffered as a result of being placed in segregation. Id. See

also Taormina v. Phillips, 2000 WL 1923511 (E.D. Mich. Nov. 30, 2000).

III. Conclusion

For the reasons stated, the Court concludes that Plaintiff has failed to state any claims

upon which relief may be granted under 42 U.S.C. § 1983. Accordingly, the Court DISMISSES

WITHOUT PREJUDICE Plaintiff’s civil rights complaint. Additionally, the Court concludes 

that an appeal from this order would be frivolous and therefore cannot be taken in good faith. 

See 28 U.S.C. § 1915(a)(3); see also McGore, 114 F.3d at 610-11.

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: October 21, 2008
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CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

October 21, 2008.

s/Denise Goodine 

Case Manager