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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MOURICE NEAL,

Plaintiff, Civil Action No. 2:09-cv-13168

v. HONORABLE STEPHEN J. MURPHY, III

KAREN FORT HOOD, et. al.,

Defendants,

__________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

Before the Court is Plaintiff Mourice Neal’s pro se civil rights complaint filed pursuant

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

Correctional Facility in St. Louis, Michigan. For the reasons stated below, the complaint

is DISMISSED WITHOUT PREJUDICE. 

STANDARD OF REVIEW

Mr. Neal 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.

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 The Court obtained some of this information from the Michigan Department of

Corrections’ Offender Tracking Information System (OTIS), which this Court is permitted

to take judicial notice of. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821, n. 3

(E.D. Mich. 2004).

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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. West v. Atkins, 487 U.S. 42,

48 (1988); See also Havard v. Puntuer, 600 F. Supp. 2d 845, 850 (E.D. Mich. 2009). “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).

COMPLAINT

Mr. Neal was convicted of first-degree criminal sexual conduct in the Wayne County

Circuit Court, in violation of M.C.L.A. 750.520h(1)(A). 1 Mr. Neal contends that his criminal

conviction should be vacated, because the statute that he had been convicted under had

not been properly enacted in accordance with Mich. Const. 1963, Art. 4, §§ 23, 24. Mr.

Neal seeks to have his criminal conviction set aside. Mr. Neal also seeks monetary

damages.

DISCUSSION

Mr. Neal’s complaint is subject to dismissal for several reasons.

First, to the extent that Mr. Neal seeks monetary damages arising from his criminal

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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 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 Mr. Neal 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 Mr. Neal 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 a direct appeal, a state

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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, No. 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 § 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); St. Germain v. Isenhower, 98 F. Supp. 2d 1366, 1373 (S.D. Fla.

2000). 

Since Mr. Neal asks 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 Nick J. Ludwick, the warden at the St.

Louis Correctional Facility. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich.

2006).

To the extent that Mr. Neal 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

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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 Mr. Neal'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 Mr. Neal

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 Mr. Neal’s § 1983 complaint under Heck, the dismissal will be

without prejudice. Diehl v. Nelson, 198 F. 3d 244, No. 1999 WL 1045076 (6th Cir. November

12, 1999)(citing to Fottler v. United States, 73 F. 3d 1064, 1065 (10th Cir. 1996)).

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ORDER

 Accordingly, it is ORDERED that the complaint [docket entry 1] is DISMISSED

WITHOUT PREJUDICE. 

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 30, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 30, 2009, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager

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