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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARL DIXON, #191514,

Plaintiff,

CASE NO. 2:08-CV-14496

v. HONORABLE VICTORIA A. ROBERTS

JAN TROMBLEY, et al.,

Defendants.

______________________________________/

OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT AND

CONCLUDING THAT AN APPEAL CANNOT BE TAKEN IN GOOD FAITH

I. Introduction

Carl Dixon (“Plaintiff”), a Michigan prisoner, has filed a civil rights complaint pursuant

to 42 U.S.C. § 1983. The Court has granted Plaintiff’s application to proceed without

prepayment of the filing fee. See 28 U.S.C. § 1915(a). In his complaint, Plaintiff challenges his

criminal proceedings concerning convictions for prisoner possessing a weapon and for carrying a

weapon with unlawful intent which were imposed following an assaultive incident in 1999 while

he was confined at the Saginaw Correctional Facility in Freeland, Michigan. Plaintiff names

warden Jan Trombley, several prison officials, corrections officers, and medical personnel who

investigated the incident and treated the victim, defense attorney George C. Bush, prosecutor

Michael D. Thomas, court reporter Kathy Tagget, and Saginaw County Circuit Judge Robert L.

Kaczmarek as defendants in this action. He requests that his convictions be expunged and seeks

monetary damages and injunctive relief. Having reviewed the complaint, the Court dismisses it
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as frivolous/for failure to state a claim upon which relief may be granted and on the basis of

immunity. The Court also concludes that an appeal cannot be taken in good faith.

II. Discussion

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: (1) the defendant is a

person who acted under color of state or federal law, and (2) 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). Despite the liberal pleading standard accorded

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

Plaintiff’s complaint is subject to dismissal because he challenges his criminal

convictions arising from the 1999 incident and related imprisonment – which fails to state a
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claim upon which relief may be granted under 42 U.S.C. § 1983. A claim under § 1983 is an

appropriate remedy for a state prisoner challenging a condition of his imprisonment, see Preiser

v. Rodriguez, 411 U.S. 475, 499 (1973), not the validity of his continued confinement. See 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 duration.” Wilkinson v. Dotson, 544 U.S. 74,

81-82 (2005). If Plaintiff were to prevail on his claims, the validity of his convictions and his

continued confinement relative to those convictions would be called into question. Accordingly,

such claims are barred by Heck and must be dismissed.

Plaintiff’s complaint against defense lawyer George Bush is also subject to dismissal

because a public defender or court-appointed counsel, while acting in that capacity, is not a state

actor subject to suit under § 1983. See Polk Co. v. Dodson, 454 U.S. 312, 325 (1981) (“[A]

public defender does not act under color of state law when performing a lawyer’s traditional
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functions as counsel to a defendant in a criminal proceeding.”). Plaintiff’s complaint against

defendant Bush must therefore be dismissed.

Additionally, prosecutor Michael Thomas is absolutely immune from suit to the extent

that Plaintiff challenges his conduct in pursuing and prosecuting the disputed criminal charges. 

It is well-established that prosecutors are entitled to absolute immunity for conduct intimately

associated with the judicial phase of the criminal process. See Imbler v. Pachtman, 424 U.S.

409, 430 (1976). This immunity extends to a prosecutor’s decision to file a criminal complaint.

See, e.g., Ireland v. Tunis, 113 F.3d 1435, 1446 (6th Cir. 1997). Absolute prosecutorial

immunity exists even when a prosecutor acts wrongfully or maliciously. See Grant v.

Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989). Defendant Thomas is entitled to absolute

prosecutorial immunity for his actions in Plaintiff’s criminal proceedings.

Lastly, Saginaw County Circuit Court Judge Kaczmarek and court reporter Kathy Tagget

are also entitled to absolute immunity. Judges and judicial employees are entitled to absolute

judicial immunity on claims for damages. See Mireles v Waco, 502 U.S. 9, 9-10 (1991) (per

curiam) (judge performing judicial functions is absolutely immune from suit seeking monetary

damages even if acting erroneously, corruptly or in excess of jurisdiction); Collyer v. Darling, 98

F.3d 211, 221 (6th Cir. 1996). Moreover, the 1996 amendments to § 1983 extended absolute

immunity for state judicial personnel to requests for injunctive or equitable relief. See 42 U.S.C.

§ 1983 (“in any action brought against a judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was

violated or declaratory relief is unavailable”); see also Kipen v. Lawson, 57 Fed. Appx. 691 (6th

Cir. 2003) (discussing federal judges’ immunity); Kircher v. City of Ypsilanti, et al., 458 F.
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Supp. 2d 439, 446-47 (E.D. Mich. 2006) (Rosen, J.); accord Asubuko v. Royal, 443 F.3d 302,

304 (3rd Cir. 2006); Hass v. Wisconsin, et al., 109 Fed. Appx. 107, 113-14 (7th Cir. 2004); Bolin

v. Story, 225 F.3d 1234, 1240-42 (11th Cir. 2000). Allegations arising from Plaintiff’s

challenges to his state criminal proceedings involve the performance of judicial and quasijudicial duties. Judge Kaczmarek and reporter Tagget are absolutely immune from suit for such

conduct and the claims against them must be dismissed.

III. Conclusion

For the reasons stated, the Court concludes that Plaintiff has failed to state a claim upon

which relief may be granted under 42 U.S.C. § 1983, that defendant Bush is not subject to suit

under 42 U.S.C. § 1983, and that defendants Thomas, Tagget, and Kaczmarek are entitled to

immunity. Accordingly, the Court DISMISSES Plaintiff’s civil rights complaint. The Court

also 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); McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th

Cir. 1997).

IT IS SO ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: October 28, 2008
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The undersigned certifies that a copy of this

document was served on the attorneys of record

and Carl Dixon by electronic means or U.S. Mail

on October 28, 2008.

s/Carol A. Pinegar 

Deputy Clerk