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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DUSTIN KOT,

Plaintiff, Civil Action No. 2:08-14402

v.

HONORABLE STEPHEN J. MURPHY, III

ERIC LARSEN, et. al.,

Defendants,

________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

Introduction

Before the Court is Plaintiff Dustin Kot’s pro se civil rights complaint filed

pursuant to 42 U.S.C.§ 1983. Plaintiff is a state prisoner currently confined at the Gus

Harrison Correctional Facility in Adrian, Michigan. For the reasons stated below, the

complaint is dismissed without prejudice. 

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 

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

relief. 
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 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). 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) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “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).

Complaint

Plaintiff claims that he left Project Rehab in Grand Rapids, Michigan on

September 14, 2008 with a thirty day supply of Seroquel, an anti-psychotic medication. 

Plaintiff claims that he was prescribed this medication because he has been diagnosed

as being bi-polar. On October 14, 2008, plaintiff claims that he ran out of his supply of

medication. Plaintiff claims that he attempted without success to obtain more

medication from his parole agent, as well as the psychiatrist at Project Rehab. Plaintiff

claims that after he ran out of Seroquel, he experienced headaches, sleeplessness,

anxiety, and “an overpowering urge to use marijuana, my drug of choice.” When he

was unable to find marijuana, plaintiff began using alcohol, which lead to the revocation

of his parole. Plaintiff alleges that had he not run out of his prescribed medication, his

the circumstances which lead to his parole revocation would not have occurred. Plaintiff

now seeks penal damages. It is unclear whet Discussion her plaintiff seeks injunctive relief. 
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Plaintiff’s complaint is subject to dismissal for several reasons.

First, to the extent that plaintiff seeks monetary damages arising from the

revocation of his parole, he would be unable to obtain such damages absent a showing

that his parole revocation 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). The holding

in Heck “applies to proceedings that call into question the fact or duration of parole or

probation.” Noel v. Grzesiak. 96 Fed. Appx. 353, 354 (6th Cir. 2004) (quoting Crow v.

Penry, 102 F.3d 1086, 1087 (10th Cir. 1996)). Because plaintiff does not allege that his

parole revocation has been overturned, expunged, or called into question by a writ of

habeas corpus, his allegations relating to his parole revocation and subsequent

incarceration against the defendants fail to state a claim for which relief may be granted

and must, therefore, be dismissed. See, e.g., Norwood v. Michigan Department of

Corrections, 67 Fed. Appx. 286, 287 (6th Cir. 2003). 

Second, to the extent that plaintiff is seeking to have his parole revocation

vacated or set aside in this civil rights action, his complaint is also 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). If a prisoner claims to be entitled to probation, bond, or parole,
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his or her proper route for relief is to file a petition for writ of habeas corpus rather than a

civil rights suit. See Graham v. Broglin, 922 F. 2d 379, 381 (7th Cir. 1991). A petition for

writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is therefore the proper

avenue for plaintiff to challenge the revocation of his parole. See Norwood, 67 Fed.

Appx. at 288.

Thus, to the extent that the plaintiff is seeking to be released from custody, his

action should have been 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 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, there are significant

reasons not to “convert” it into a habeas corpus suit for disposition on the merits. See

Pischke v. Litscher, 178 F. 3d 497, 500 (7th Cir. 1999). Instead, it is best to dismiss the

matter, leaving it to the prisoner to decide whether to refile it as a petition for writ of

habeas corpus. Id. 

Additionally, this Court cannot treat plaintiff's complaint as an application for

habeas corpus relief because the plaintiff has not pleaded that has exhausted his state

court remedies, as is required by 28 U.S.C. § 2254(b) & (c) in order to obtain federal

habeas relief. Parker v. Phillips, 27 Fed. Appx. 491, 494 (6th Cir. 2001). Moreover,

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 Heck v. Humphrey, 512 U.S. 477,

487 (1994).

When a prisoner’s civil rights claim is barred by the Heck doctrine, the best
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course for a 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 a jurisdiction-related dismissal is not an adjudication on the

merits and would allow the prisoner to reassert his claims if his conviction or sentence is

latter invalidated. Murphy, 343 F. Supp. 2d at 609; e.g., Diehl v. Nelson, no. 98-21408,

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

1064, 1065 (10th Cir. 1996)). Therefore, because this Court is dismissing plaintiff’s §

1983 complaint under Heck, the dismissal will be without prejudice. 

ORDER

 Accordingly, it is ORDERED that the complaint is DISMISSED WITHOUT

PREJUDICE. 

 

s/Stephen J. Murphy, III 

Stephen J. Murphy, III

United States District Judge

Dated: October 24, 2008

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

and/or counsel of record on October 24, 2008, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager