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People v. Walker (On Reh’g), 374 Mich. 331, 132 N.W.2d 87 (1965).

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT W. TATE,

Plaintiff, CASE NO. 09-CV-12234

v. JUDGE PAUL D. BORMAN

UNITED STATES DISTRICT COURT

HON. LEONARD TOWNSEND, et. al.,

Defendants.

___________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

I. INTRODUCTION

Plaintiff Robert W. Tate, a state inmate, currently confined at the Thumb Correctional

Facility in Lapeer, Michigan, filed a pro se civil rights complaint, pursuant to 42 U.S.C. § 1983. In

his pro se pleadings, Plaintiff alleges that Defendants, The Honorable Leonard Townsend, Cathy

M. Garrett, Wayne County Clerk, David R. Cripps, appointed counsel on his appeal of right, Laura

Cook, Assistant Attorney General, and Wylene Abdullah, Court Reporter, purposefully withheld the

transcripts from his Walker1 hearing in an attempt to deny him a fair and full appellate review,

thereby violating his Fourteenth Amendment rights under both the federal and state Constitutions.

Plaintiff is requesting that the Court remand his case for a jury trial, and he is seeking monetary

damages. Having reviewed Plaintiff’s complaint, the Court will dismiss it on the basis of judicial,

prosecutorial, and quasi-judicial immunity, and for failure to state a claim upon which relief may

be granted. The Court also finds that an appeal cannot be taken in good faith.

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II. DISCUSSION

A. Standard of Review 

Plaintiff has been allowed to proceed without prepayment of fees [dkt. # 3]. 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) states: 

(2) 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–

(A) the allegation of poverty is untrue; or

(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.

28 U.S.C. § 1915(e)(2).

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(a) and (e)(2). 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)

(citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).

B. Judicial Claim–Against Judge Leonard Townsend

The Court finds that Defendant Wayne County Circuit Court Judge Leonard Townsend is

entitled to absolute immunity in this case. 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)

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(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) (citing Mireles, 502 U.S. at 9); see also Kipen v. Lawson, 57 Fed.App’x. 691 (6th

Cir. 2003) (discussing federal judges’ immunity); Kircher v. City of Ypsilanti, 458 F.Supp. 2d 439,

446-47 (E.D. Mich. 2006) (judges are entitled to absolute judicial immunity).

The Sixth Circuit has described the immunity from suit enjoyed by judges as follows:

“[J]udges of courts of superior or general jurisdiction are not liable

to civil actions for their judicial acts, even when such acts are in

excess of their jurisdiction, and are alleged to have been done

maliciously or corruptly.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335,

351, 20 L.Ed. 646 (1872). This immunity applies to actions brought

under 42 U.S.C. § 1983 to recover for alleged deprivation of civil

rights. See Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 18

L.Ed.2d 288 (1967). The Supreme Court explained: “If judges were

personally liable for erroneous decisions, the resulting avalanche of

suits, most of them frivolous but vexatious, would provide powerful

incentives for judges to avoid rendering decisions likely to provoke

such suits. The resulting timidity would be hard to detect or control,

and it would manifestly detract from independent and impartial

adjudication . . . . Most judicial mistakes or wrongs are open to

correction through ordinary mechanisms of review, which are largely

free of the harmful side-effects inevitably associated with exposing

judges to personal liability.” Forrester v. White, 484 U.S. 219,

226-27, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).

Stern v. Mascio, 262 F.3d 600, 606 (6th Cir. 2001).

Plaintiff’s challenge to the proceedings involve the performance of judicial duties by

Defendant Judge Townsend. For the reasons stated, Defendant Judge Townsend is absolutely

immune from suit for such conduct and the claim against him must be dismissed on that basis.

C. Claims Against Assistant Attorney General Laura A. Cook; Court Reporter

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Wylene Abdullah; and County Clerk Cathy M. Garrett

Plaintiff has also sued Defendant Laura A. Cook, Assistant Attorney General, in both her

individual and official capacity. Claims against her in her official capacity are barred by the

Eleventh Amendment. Pennhurst v. State School & Hosp. v. Halderman, 465 U.S. 89, 99-101

(1984) (citing Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945) (the Eleventh

Amendment bars a suit against state officials when “the state is the real, substantial party in

interest)).

Plaintiff’s claim against Defendant Cook in her individual capacity are barred by the doctrine

of absolute prosecutorial immunity. The United States Supreme Court has extended absolute

immunity to shield prosecuting attorneys who are sued under 42 U.S.C. § 1983 for alleged

deprivations of constitutional rights committed in performing their prosecutorial functions. Imbler

v. Pachtman, 424 U.S. 409, 427-28 (1976). The Imbler Court noted that those activities “intimately

associated with the judicial phase of the criminal process, and thus [are] functions to which the

reasons for absolute immunity apply with full force.” Id. at 430. Moreover, “[a]bsolute

prosecutorial immunity is not defeated by a showing that the prosecutor acted wrongfully or even

maliciously,” or “the decision to prosecute . . . ‘even if malicious and founded in bad faith, is

unquestionably advocatory and at the heart of the holding in Imbler.’” Grant v. Hollenbach, 870

F.2d 1135, 1138 (6th Cir.1989). In this case Defendant Cook is entitled to absolute prosecutorial

immunity as a matter of law.

Whether Defendant Abdullah, the Judge’s court reporter, also enjoys quasi-judicial immunity

is less obvious. In Antoine v. Byers & Anderson, 508 U.S. 429 (1993), the Supreme Court held that

court reporters are not entitled to absolute, quasi-judicial immunity, based on the fact that their

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duties are ministerial, not discretionary in nature. Id. at 436-437 (citing McLallen v. Henderson, 492

F.2d 1298, 1299 (8th Cir. 1974)). However, when a court reporter acts at the direction of a judge,

he or she is protected by qualified immunity. Green v. Maraio, 722 F.2d 1013, 1018 (2nd Cir. 1983)

(the court reporter acted pursuant to [] explicit instructions and thus is immunized from liability

under section 1983 by the defense of qualified immunity for actions carried out within the scope of

those instructions). See also, James v. Scavoni, 229 F.3d 1152 (Table) (6th Cir. 2000) (citing Green,

722 F.2d at 1018-19); Hargis v. Jones, 986 F.2d 1421 (Table) (6th Cir.1993) (the court reporter is

being sued in his capacity as an individual carrying out a judicially-directed function and is therefore

immune from suit in this context).

Likewise, in this case, because Plaintiff alleges that Defendant Abdullah’s actions were

carried out in furtherance of a conspiracy directed by Judge Townsend, qualified immunity is

available. See Snyder v. Nolen, 380 F.3d 279, 287 (7th Cir. 2004) (“[W]hen functions that are more

administrative in character have been undertaken pursuant to the explicit direction of a judicial

officer, we have held that [the] officer’s immunity is also available to the subordinate”).

Accordingly, claims against Defendant Abdullah should be dismissed. Lyle v. Jackson, 49 Fed.

App’x 492, 494 (6th Cir. Sept. 17, 2002) (quasi-judicial immunity applied to claims against state

court clerks who allegedly failed to provide prisoner with requested copies of previous filings and

transcripts); Sharp v. Traynor, 114 F.3d 1188 (6th Cir. 1997) (court reporter was entitled to

immunity under Mich. Comp. Laws § 691.1407(2) as long as the reporter was acting within the

scope of his authority and his conduct did not amount to gross negligence).

Additionally, Plaintiff’s suit for monetary damages against Defendant, Clerk of the Wayne

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County Circuit Court, Cathy M. Garrett, must also be dismissed on the grounds of quasi-judicial

immunity. In Smith v. Shelby County, Tenn., 3 Fed.App’x. 436, 437-38 (6th Cir. 2001), the Sixth

Circuit held that a county court clerk was protected by absolute quasi-judicial immunity in a § 1983

action in which a state prisoner alleged that the clerk had violated his rights by delaying adjudication

of his petition for post-conviction relief and motion to set aside guilty pleas. Similarly, here, the

Court finds that Defendant Garrett would be protected by absolute quasi-judicial immunity for

monetary damages for any failure to timely provide plaintiff with a copy of the transcript from the

Walker hearing.

Plaintiff’s claim against Defendant Garrett fails for another reason. To establish an access

to the courts violation under § 1983, a plaintiff must prove that the violation was intentional, not

merely negligent. See Wojnicz v. Davis, 80 Fed.App’x. 382, 384 (6th Cir. 2003); Garrison v. Corr,

26 Fed.App’x. 410, 411 (6th Cir. 2001).

In the present case, Plaintiff’s allegations, at best, establish merely that Defendant Garrett

may have been negligent in failing to send him a copy of the Walker hearing transcript. Except for

Plaintiff’s “empty allegations,” he has presented no evidence that Defendant Garrett acted

deliberately or maliciously in failing to provide him a copy of that transcript. See Kampfer v.

Vonderheide, 216 F.Supp.2d 4, 7 (N.D.N.Y. 2002). Conclusory, unsupported allegations of a

constitutional deprivation do not state a § 1983 claim. Johnson v. Freeburn, 29 F.Supp.2d 764, 767

(E.D.Mich. 1998). Plaintiff’s claim against Defendant Garrett is therefore subject to dismissal.

D. Claim Against Attorney David R. Cripps 

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Plaintiff’s claim against Attorney Cripps must also be dismissed for failure to state a claim.

A complaint may be dismissed for failure to state a claim if it fails to give the defendant fair notice

of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 561-62 (2007) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The standard requires that

a “complaint must contain either direct or inferential allegations respecting all the material elements

to sustain a recovery under some viable legal theory.” Glassner v. R.J. Reynolds Tobacco Co., 223

F.3d 343, 346 (6th Cir. 2001). While a complaint need not contain detailed factual allegations, a

plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555-56;

Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir. 1998) (holding that a court need not

accept as true legal conclusions or unwarranted factual inferences). Twombly was reaffirmed in

Ashcroft v. Igbal, ___U.S. ___, 129 S.Ct. 1937, 1953 (2009) (“Our decision in Twombly expounded

the pleading standard for ‘all civil actions,’ . . . .”). The Court must determine whether the

complaint contains enough facts to state a claim to relief that is plausible on its face. Twombly, 550

U.S. at 571.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right

secured by the federal Constitution or laws and must show that the deprivation was committed by

a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.

Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal

rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify

the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).

1. State Actor

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As stated above, a plaintiff must allege the violation of a right secured by the federal

Constitution or laws and must show that the deprivation was committed by a person acting under

color of state law to state a claim under 42 U.S.C. § 1983. See West, 487 U.S. at 48; Street, 102 F.3d

at 814. In order for a private party’s conduct to be under color of state law, it must be “fairly

attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d

at 814. There must be “a sufficiently close nexus between the State and the challenged action of [the

defendant] so that the action of the latter may be fairly treated as that of the State itself.” Skelton

v. 

Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S. 345,

351 (1974)).

Plaintiff cannot show that Attorney Cripps acted under color of state law. In Polk County

v. Dodson, 454 U.S. 312 (1981), the Supreme Court held that defense counsel perform a private, not

an official, function:

In our system[,] a defense lawyer characteristically opposes the

designated representatives of the State. The system assumes that

adversarial testing will ultimately advance the public interest in truth

and fairness. But it posits that a defense lawyer best serves the

public, not by acting on behalf of the State or in concert with it, but

rather by advancing “the undivided interest of his client.” This is

essentially a private function, traditionally filled by retained counsel,

for which state office and authority are not needed.

454 U.S. at 318-19 (footnotes omitted). The Polk County Court further held that this is true even

of the state-appointed and state-paid public defender. Id. at 321. That Court said that, once a lawyer

undertakes the representation of an accused, the duties and obligations are the same whether the

lawyer is privately retained, appointed, or serves in a legal aid or defender program. Id. at 323. The

Polk County Court held that, even though a public defender is paid by the state, he or she does not

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act under color of state law in representing the accused. Id. at 325. Rather, defense counsel,

whether privately retained or paid by the state, acts purely on behalf of the client and free from state

control. Id. The Sixth Circuit has adhered to the holding in Polk County in numerous unpublished

decisions. See, e.g., Carswell v. Hughes, 215 F.3d 1325 (Table) (6th Cir. May 9, 2000); Blake v.

Kane, 208 F.3d 212 (Table) (6th Cir. Mar. 14, 2000); Rodgers v. Stacey, No. 99-3408, 2000 WL

190100, at *1 (6th Cir. Feb. 7, 2000); Watson v. Carreer, 202 F.3d 271 (Table) (6th Cir. Dec. 27,

1999); Pagani-Gallego v. Escobedo, 149 F.3d 1184 (Table) (6th Cir. June 23, 1998); Carson v.

Giovanni, 860 F.2d 1078 (6th Cir. Oct.14, 1988). Accordingly, Attorney Cripps did not act under

color of state law, and, thus, no claim under § 1983 can be maintained against him.

E. Heck Bar

Additionally, Plaintiff’s claims are barred by the Heck v. Humphrey, 512 U.S. 477 (1994)

doctrine. While Plaintiff declares that he is not challenging his convictions or sentence, his

allegations clearly call into question his convictions and sentences. The crux of Plaintiff’s argument

is that he was unconstitutionally charged. A challenge to the fact or duration of confinement should

be brought as a petition for habeas corpus and is not the proper subject of a civil rights action

brought pursuant to Sections 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (the essence

of habeas corpus is an attack by a person in custody upon the legality of that custody and the

traditional function of the writ is to secure release from illegal custody). Therefore, to the extent that

Plaintiff’s complaint challenges the fact or duration of his incarceration, it must be dismissed. See

Barnes v. Lewis, 12 F.3d 211 (6th Cir. Dec. 10, 1993) (dismissal is appropriate where § 1983 action

seeks equitable relief and challenges fact or duration of confinement); see also Moore v. Pemberton,

110 F.3d 22, 23-24 (7th Cir. 1997) (reasons for not construing a § 1983 action as one seeking habeas

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relief include potential application of Heck v. Humphrey, 512 U.S. 477 (1994)).

To the extent Plaintiff seeks monetary relief for alleged violations of Constitutional rights,

his claim is barred by Heck. Heck, 512 U.S. at 486-87. In Heck, the Supreme Court held that a state

prisoner cannot make a cognizable claim under § 1983 for an alleged unconstitutional conviction

or for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid”

unless a prisoner shows that the conviction or sentence has been “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id.

at 486-87 (footnote omitted). Thus, Plaintiff’s claims under 42 U.S.C. § 1983 are barred under Heck

until his criminal convictions have been invalidated.

F. Plaintiff’s Claims Are State Law Claims

To the extent that Plaintiff asserts claims of fraud, misrepresentation, legal malpractice and

negligence, those claims arise solely under state law. Section 1983 does not provide redress for a

violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.1995); Sweeton v. Brown, 27

F.3d 1162, 1166 (6th Cir.1994). The Sixth Circuit has stated that district courts should generally

decline to exercise supplemental jurisdiction over state law claims under these circumstances. See

Landefeld v. Marion Gen. Hosp., 994 F.2d 1178, 1182 (6th Cir.1993); Hawley v. Burke, 149 F.3d

1183 (6th Cir. June 18, 1998). 

III. CONCLUSION

 For the reasons stated, IT IS ORDERED that the claim against The Honorable Leonard

Townsend is dismissed on the basis of judicial immunity;

IT IS FURTHER ORDERED that the claim against Assistant Attorney General Laura A.

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Cook is dismissed on the basis of prosecutorial immunity;

IT IS FURTHER ORDERED that the claims against Wayne County Clerk Cathy M.

Garrett and Court Reporter Wylene Abdullah are dismissed on the basis of qualified and quasijudicial immunity;

IT IS FURTHER ORDERED that the claim against David R. Cripps is dismissed for

failure to state a claim under 42 U.S.C. § 1983. 

Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s federal civil

rights complaint. The Court declines to exercise jurisdiction over his state law claims. Additionally,

the Court 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); see also McGore, 114 F.3d at 610-11.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: July 13, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on July

13, 2009.

S/Denise Goodine 

Case Manager

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