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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EDDIE DILLARD, #254178,

Plaintiff,

CASE NO. 2:09-CV-10702

v. HONORABLE DENISE PAGE HOOD

NATIONAL UNION FIRE INS. CO., et al., 

Defendants.

____________________________________/

OPINION AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT,

DENYING MOTION FOR APPOINTMENT OF COUNSEL, AND

CONCLUDING THAT AN APPEAL CANNOT BE TAKEN IN GOOD FAITH

I. Introduction

Eddie Dillard (“Plaintiff”), a Michigan prisoner, has filed a civil rights complaint

pursuant to 42 U.S.C. § 1983, as well as a motion for appointment of counsel. This 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 the validity of his criminal proceedings and

names three state court judges and an insurance company as the defendants in this action. He

seeks monetary damages and a declaratory judgment stating that his restraint is unconstitutional. 

Having reviewed the complaint, the Court now dismisses it as frivolous, for failure to state a

claim upon which relief may be granted under 42 U.S.C. § 1983, and on the basis of immunity. 

The Court also denies Plaintiff’s request for counsel and concludes that an appeal cannot be

taken in good faith.

II. Discussion

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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. § 1997e(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, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); Neitzke v. Williams,

490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (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, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (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); El Bey v. Roop, 530 F.3d 407, 413 (6th Cir. 2008). Despite the liberal

pleading standard accorded pro se plaintiffs, the Court finds that the complaint is subject to

summary dismissal.

In his complaint, Plaintiff alleges that the defendant judges misrepresented themselves as

constitutionally sound judges and acted without appropriate authority, thereby challenging the

validity of his state criminal proceedings and his continued imprisonment. As such, he fails to

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state a claim upon which relief may be granted under § 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, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), not the validity of his

continued confinement. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L.

Ed. 2d 383 (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, 125 S. Ct. 1242, 161 L.

Ed. 2d 253 (2005). If Plaintiff were to prevail on the claims arising from his criminal

proceedings, the validity of his continued confinement would be called into question. 

Accordingly, his complaint is barred by Heck and must be dismissed.

Additionally, to state a claim under § 1983, a plaintiff must demonstrate that the conduct

which caused his alleged injury is “fairly attributable to the State.” Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). Conduct which deprives a party of

a federally protected right can be said to be fairly attributable to the state when: (1) the

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deprivation is caused by the exercise of a state-created right or privilege, by a state-imposed rule

of conduct, or by a person for whom the state is responsible, and (2) the party charged with the

deprivation may be fairly described as a state actor. Id. The named insurance company

defendant is a private party and not a state actor subject to suit under § 1983. See, e.g., Britt v.

Fox, 110 Fed. Appx. 627, 628 (6th Cir. 2004); Naething v. Covington, 73 Fed. Appx. 825, 826

(6th Cir. 2003); accord Wagner v. Washington Co., 493 F.3d 833, 836 (7th Cir. 2007) (“although

the county’s insurance company may be obliged to indemnify county officials found liable in a

suit under § 1983, the insurer is not an appropriate party to the suit because it is not a state actor,

nor did it deprive [the plaintiff] of any constitutional rights while acting under the color of a state

statute”). Plaintiff has also failed to allege facts establishing that insurance company deprived

him of any constitutional rights while acting under state law. His complaint against the

insurance company defendant is therefore frivolous and must be dismissed for this additional

reason.

Lastly, the state court judges named as defendants in this action are entitled to absolute

immunity. Judges and judicial employees are entitled to absolute judicial immunity from suit on

Plaintiff’s claim for damages. See Mireles v Waco, 502 U.S. 9, 9-10, 112 S. Ct. 286, 116 L. Ed.

2d 9 (1991) (per curiam) (judge performing judicial functions is absolutely immune from suit

seeking monetary damages even if acting erroneously, corruptly or in excess of authority);

Collyer v. Darling, 98 F.3d 211, 221 (6th Cir. 1996). Moreover, the 1996 amendments to § 1983

extended absolute immunity for state judges 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

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was violated or declaratory relief was 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. Supp. 2d 439, 446-47 (E.D. Mich. 2006) (Rosen, J.); accord Azubuko v. Royal, 443 F.3d

302, 304 (3d 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). Plaintiff’s allegations against the

judges who presided over his state criminal proceedings concern their judicial duties. Those

defendants are absolutely immune from suit. Accordingly, Plaintiff’s complaint against the

defendant judges must also be dismissed based upon immunity.

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, his claims against the insurance company

are frivolous, and the state judges are immune from suit. Accordingly, the Court DISMISSES

the civil rights complaint [Docket No. 1, filed Feb. 25, 2009]. Given this determination, the

Court also DENIES Plaintiff’s motion for appointment of counsel [Docket No. 6, filed March

27, 2009]. Lastly, the Court concludes that an appeal from this order would be frivolous and

cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); see also McGore v. Wrigglesworth,

114 F.3d 601, 610-11 (6th Cir. 1997).

IT IS SO ORDERED.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: May 27, 2009

I hereby certify that a copy of the foregoing document was served upon Eddie Dillard,

Reg. No. 254178, Ionia Maximum Correctional Facility, 1576 W. Blueater Hwy., Ionia, MI

48846 and counsel of record on May 27, 2009, by electronic and/or ordinary mail.

S/William F. Lewis 

Case Manager

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