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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOMINICK BOLDEN,

Plaintiff,

CASE NO. 2:09-CV-11020

v. HONORABLE VICTORIA A. ROBERTS

ROBERT HOLMES, et al.,

Defendants.

____________________________________/

OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT

AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

I. Introduction

The Court has before it Plaintiff Dominick Bolden’s pro se civil rights complaint filed

pursuant to 42 U.S.C. § 1983, as well as his motion for appointment of counsel. Plaintiff, a state

prisoner currently confined at the Ojibway Correctional Facility in Marenisco, Michigan, has

been granted leave to proceed without prepayment of the filing fee for this action. In his

complaint, he alleges that Detroit Police Officers and Carlos Chapman violated his civil rights by

arresting him without probable cause and by presenting false testimony and conspiring against

him at his parole revocation hearing. He names those officers and the Detroit Police Department

as defendants in this action. Plaintiff seeks monetary damages and other appropriate relief. 

Having reviewed the complaint, the Court dismisses it pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A(b)(1) for failure to state a claim upon which relief may be granted. The Court also

denies Plaintiff’s motion for appointment of counsel.

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II. Analysis

Under the Prison Litigation Reform Act of 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. 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 monetary

relief from a defendant who is immune from such relief. 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 claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was deprived

of a right, privilege, or immunity secured by the federal Constitution or laws of the United

States; and (2) the deprivation was caused by a person acting under color of state law. 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). Despite this liberal pleading standard, the Court finds that Plaintiff’s

complaint is subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

As noted, Plaintiff asserts that defendants Holmes and Chapman arrested him without

probable cause, lied at his parole revocation hearing, and conspired against him. A claim under

42 U.S.C. § 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). Plaintiff, however, actually

seeks habeas corpus relief because his parole revocation claims concern the validity of his

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continued confinement. Such claims are not properly brought in a § 1983 civil rights action. 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 conviction or 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

of a writ of habeas corpus); Schilling v. White, 58 F.3d 1081, 1085 (6th Cir. 1995). This holds

true regardless of the relief sought by the plaintiff. Heck, 512 U.S. at 487-89. The United States

Supreme Court has affirmed 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). Because Plaintiff challenges his

parole revocation and his continued imprisonment and the parole revocation decision has not

been overturned, his civil rights complaint must be dismissed.

The Court notes that a state prisoner may maintain a § 1983 action for procedural

challenges to a parole hearing where success in the action would not necessarily call for an

immediate or speedier release from custody. Id. at 82; see also Thomas v. Eby, 481 F.3d 434,

439-40 (6th Cir. 2007). In this case, however, Plaintiff’s illegal arrest, false testimony, and

conspiracy claims go to the propriety of the parole revocation itself, such that ruling on those

claims in Plaintiff’s favor would necessarily demonstrate the invalidity of his confinement. Such

claims are barred by Heck, supra. See Cochrane v. Wilson, No. 06-12504, 2007 WL 2221389,

*3-4 (E.D. Mich. July 31, 2007) (adopting magistrate judge’s report dismissing similar claims);

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accord Grant v. Hatchett, No. 1:08-CV-73, 2009 WL 467569, *9-10 (E.D. Tenn. Feb. 23, 2009). 

Plaintiff’s complaint must therefore be dismissed.

Lastly, the Court notes that Plaintiff’s complaint against the Detroit Police Department is

subject to dismissal for an additional reason. It is well-established that a civil rights plaintiff

must allege the personal involvement of a defendant to state a claim under 42 U.S.C. § 1983 and

that liability cannot be established based upon a theory of respondeat superior or vicarious

liability. See, e.g., Monell v. Department of Social Svs., 436 U.S. 658, 691-92 (1978); Leary v.

Daeschner, 349 F.3d 888, 903 (6th Cir. 2003); Taylor v. Michigan Dep’t. of Corrections, 69

F.3d 716, 727-28 (6th Cir. 1995) (plaintiff must allege facts showing that defendant participated,

condoned, encouraged, or knowingly acquiesced in alleged misconduct to establish liability). 

Plaintiff has made no factual allegations against the Detroit Police Department. His complaint

against the Department is thus subject to dismissal on this basis as well as Heck, supra.

III. Conclusion

The Court concludes that Plaintiff has failed to state a claim upon which relief may be

granted under 42 U.S.C. § 1983 as to each of the defendants in his complaint. Accordingly, the

Court DISMISSES his civil rights complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b)(1). Given this determination, the Court also DENIES Plaintiff’s motion for

appointment of counsel.

IT IS SO ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: April 6, 2009

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The undersigned certifies that a copy of this

document was served on the attorneys of record

and Dominick Bolden by electronic means or U.S.

Mail on April 6, 2009.

s/Linda Vertriest 

Deputy Clerk

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