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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHNNY DAR EAGLE,

Plaintiff, Civil Action No. 5:08-13822

v. HONORABLE JOHN CORBETT O’MEARA

UNITED STATES DISTRICT COURT

(UNKNOWN) LASKOWSKI, et. al.,

Defendants,

________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. Introduction

Before the Court is Plaintiff Johnny Dar Eagle’s pro se civil rights complaint filed

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

Correctional Facility in Freeland, Michigan. For the reasons stated below, 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 

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

 A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams,
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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; Goodell v. Anthony, 157 F. Supp. 2d 796, 799 (E.D. Mich. 2001).

 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).

III. Complaint

Plaintiff challenges various alleged irregularities with respect to his criminal conviction

and sentence out of the Oakland County Circuit Court. Plaintiff seeks monetary and possibly

injunctive and declarative relief. 

IV. Discussion

Plaintiff’s complaint is subject to dismissal for several reasons.

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

conviction, he would be unable to obtain such damages absent a showing that his 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). A § 1983 suit in which a plaintiff seeks damages in connection with
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proceedings leading to his allegedly wrongful state court conviction is not cognizable where the

plaintiff’s conviction has never been reversed or otherwise invalidated. See Patrick v. Laskaris,

25 F. Supp. 2d 432, 433 (S.D.N.Y. 1998). Because plaintiff does not allege that his conviction

has been overturned, expunged, or called into question by a writ of habeas corpus, his allegations

relating to his 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 his criminal convictions 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). Section 1983 cannot serve as a

basis to challenge the fact of a plaintiff’s criminal conviction; the proper instrument for bringing

such a challenge would be either on direct appeal, a state post-conviction relief motion, or a

petition for a federal writ of habeas corpus. See Messa v. Rubin, 897 F. Supp. 883, 885 (E.D. Pa.

1995); See also Bey v. Gulley, 2002 WL 1009488, * 2 (E.D. Mich. May 6, 2002). An action

which is properly one for habeas relief does not state a cognizable claim under § 1983. See

Benson v. New Jersey State Parole Bd., 947 F. Supp. 827, 831 (D.N.J. 1996). When the effect of

granting equitable relief under the civil rights statute would be to substitute § 1983 for a petition

for writ of habeas corpus to attack a state court conviction, a prisoner fails to state a claim under
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§ 1983. Palmer v. Nebraska Supreme Court, 927 F. Supp. 370, 371 (D. Neb. 1996)(quoting

Eutzy v. Tesar, 880 F. 2d 1010, 1011 (8th Cir. 1989)). A plaintiff therefore cannot seek

declaratory or injunctive relief relating to his conviction in a § 1983 action. Nelson v. Campbell,

124 S. Ct. 2117, 2122 (2004). 

To the extent that plaintiff is asking this Court to reverse his criminal conviction, his

complaint would stand in habeas corpus, and not under the civil rights statute. The current

defendants would therefore not be the proper respondent. See Urrutia v. Harrisburg County

Police Dept., 91 F. 3d 451, 462 (3rd Cir. 1996)(citing to Rule 2(a), Rules Governing § 2254

Cases). Instead, the proper respondent would be Lloyd Rapelje, the warden at the Saginaw

Correctional Facility. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also

Rule 2(a), 28 foll. U.S.C. § 2254. 

To the extent that 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, 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 his 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
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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 former course of action is not an adjudication on the

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

invalidated. See Murphy, 343 F. Supp. 2d at 609. Therefore, because this Court is dismissing

plaintiff’s § 1983 complaint under Heck, the dismissal will 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)). 

V. ORDER

 Accordingly, it is ORDERED that the complaint is DISMISSED WITHOUT

PREJUDICE. 

sJohn Corbett O’Meara 

United States District Judge

Date: September 9, 2008
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I hereby certify that a copy of the foregoing document was served upon the parties of record on this

date, September 9, 2008, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager