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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN A. CORRION,

Plaintiff, Civil Action No. 2:09-11404

v. HONORABLE VICTORIA A. ROBERTS

UNITED STATES DISTRICT COURT

DAVID L. MORSE, et. al.,

Defendants,

________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. Introduction

Before the Court is Plaintiff John A. Corrion’s pro se civil rights complaint filed

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

Bellamy Creek Correctional Facility in Ionia, 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 

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 (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, 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 was convicted of solicitation to murder and being a second-felony

habitual offender in the Livingston County Circuit Court in Circuit Court Case # 06-

016087-FC and sentenced to 21 years and 10 months to 40 years in prison. Petitioner had

previously been convicted of assault with intent to do great bodily harm less than murder

for assaulting his ex-wife in Livingston County Circuit Court under Case # 05-015154-

FH. Plaintiff’s solicitation to murder conviction was affirmed on appeal. See People v.

Corrion, No. 2008 WL 4332096 (Mich.Ct. App. September 23, 2008); lv. den. 759 N.W.

2d 359 (2009). By his own admission, Plaintiff has filed a petition for writ of habeas

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corpus challenging his solicitation to murder conviction, which remains pending. Corrion

v. McKee, U.S.D.C. No. 2:09-CV-10696 (E.D. Mich.)(Lawson, J.). Plaintiff claims that

he has filed a motion to withdraw his guilty plea with respect to his assault with intent to

do great bodily harm conviction, but there is no indication that the motion has been

denied or whether Plaintiff has appealed the denial of such motion to the Michigan

appellate courts. 

Plaintiff claims that the defendants have withheld transcripts and other materials

that would assist him in obtaining relief from both of his convictions. Plaintiff seeks

monetary and injunctive 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

convictions, he would be unable to obtain such damages absent a showing that his

criminal convictions 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 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

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

convictions have 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

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a claim under § 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). Courts have held that a

plaintiff cannot seek injunctive relief under Section 1983 to obtain his or her trial

transcripts, where the plaintiff’s sole basis for doing so is to facilitate an attack on his or

her criminal conviction. Scruggs v. Moellering, 870 F. 2d 376, 379 (7th Cir. 1989); Boone

v. Weizel, 917 F. Supp. 518, 520 (N.D. Ohio 1996). Because Plaintiff seeks his

transcripts and other documents for the purpose of attacking his criminal convictions, he

cannot maintain a Section 1983 to do so.

Since Plaintiff appears to be asking this Court to reverse his criminal convictions,

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 Kenneth

McKee, the warden at the Bellamy Creek 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

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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. 

To the extent that Plaintiff is seeking habeas relief on his solicitation to murder

conviction, his complaint is subject to dismissal as being duplicative of his habeas

petition that remains pending before Judge Lawson. See e.g. Barapind v. Reno, 72 F.

Supp. 2d 1132, 1145 (E.D. Cal. 1999)(internal citations omitted). 

In addition, this Court cannot treat Plaintiff's complaint as an application for

habeas corpus relief regarding his assault with intent to do great bodily harm conviction

because the Court has no information that the Plaintiff has exhausted his state court

remedies with regard to this conviction, 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);

Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998). 

Moreover, any habeas petition would be subject to dismissal because 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).

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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. 

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: April 22, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and John A. Corrion by electronic means or U.S.

Mail on April 22, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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