HUGH W. BRENNEMAN, Jr., Magistrate Judge.
This is a pro se civil rights action brought by John Earl Easley, a former inmate at the Ingham County Jail, pursuant to 42 U.S.C. § 1983. This matter is now before the court on defendant Judge Amy Krause's motion to dismiss (docket no. 24); defendant Russel Church's motion to dismiss (docket no. 31); and defendant Rich Dietrich and Daryl McCulloch's motion for summary judgment (docket no. 35).
The court summarized plaintiff's complaint and dismissed some of plaintiff's claims in its opinion screening the complaint pursuant to the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), providing in pertinent part as follows:
Opinion at pp. 4-6 (docket no. 11).
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
Defendants Judge Krause
Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted).
In resolving motions to dismiss, the court has a duty to construe a pro se complaint liberally. See Haines v. Kerner, 404 U.S. 519 (1972); Kent v. Johnson, 821 F.2d 1220, 1223-24 (6th Cir. 1987). However, there are limits to the court's "liberal construction" of a pro se complaint. For example, the court cannot rewrite a complaint to include claims that were never presented, "conjure up unpled allegations" or "create a claim." Rogers v. Detroit Police Dept., 595 F.Supp.2d 757, 766 (E.D. Mich. 2009). To hold otherwise would require the district court to explore all potential claims of a pro se plaintiff and thrust the court into the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party. Id.
Plaintiff's complaint suggests that he was subject to a false arrest and that defendants Judge Krause (the trial judge) and Mr. Church (the prosecutor) engaged in a conspiracy to give him a "false record". Plaintiff's complaint omits allegations regarding the conviction which lies at the heart of this lawsuit, On October 14, 2010, plaintiff was found guilty of domestic violence, second offense, M.C.L. § 750.81(3), and sentenced to 270 days in jail, a $100.00 fine and court costs. See People v. Easley, No. 10-04749 SM (54-A District Court) (Misdemeanor Complaint and Judgment of Sentence) (docket no. 35-4).
The Rooker-Feldman doctrine arose from two Supreme Court decisions interpreting U.S.C. § 1257(a), a statute which "is designed to prohibit end-runs around state court judgments that might occur when parties go into federal court essentially seeking a review of a state-court decision." Kovacic v. Cuyahoga County Department of Children and Family Services, 606 F.3d 301, 308 (6th Cir. 2010). Application of the Rooker-Feldman doctrine "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corporation v. Saudi Basic Industries Corporation, 544 U.S. 280, 284 (2005). "The pertinent question in determining whether a federal district court is precluded under the Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a claim is whether the source of the injury upon which plaintiff bases his federal claim is the state court judgment." In re Cook, 551 F.3d 542, 548 (6th Cir. 2009) (internal quotation marks omitted). "This is true regardless of whether the party challenges the validity of the state court judgment on constitutional grounds." Id.
Here, plaintiff is seeking to have this court review and overturn the October 14, 2010 Judgment of Sentence entered by the 54-A District Court. The "source" of plaintiff's injury is this state court judgment. There is no evidence that plaintiff appealed this adverse decision. Plaintiff's federal lawsuit appears to be an attempt to make an "end-run" around the Michigan state courts by seeking direct federal review of that court's order, the type of review prohibited by the Rooker-Feldman doctrine. Plaintiff's allegation that Judge Krause and Mr. Church violated his federal constitutional rights during the course of the state proceedings does not change this result. See, e.g., Coleman v. Governor of Michigan, 413 Fed. Appx. 866, 872 (6th Cir. 2011) (plaintiff's attempt to have federal district court review the state circuit court's application of a state statute to the plaintiff "would amount to an appellate review of the state court's decision on this matter" in violation of the Rooker-Feldman doctrine; the plaintiff's proper recourse for a constitutional challenge to the state court's decision "must be [found in] the Michigan state court system and ultimately the Supreme Court of the United States"); Bush v. Director of Meigs County Ohio, CSEA, No. 2:08-cv-537, 2009 WL 891740 at *3 (March 30, 2009) (where a constitutional issue could have been reviewed on direct appeal by the state appellate courts, a litigant may not seek to reverse or modify the state court judgment by bringing a constitutional claim in federal district court pursuant to § 1983); Blackburn v. Jansen, 241 F.Supp.2d 1047, 1049 fn. 2 (D.Neb. 2003) (after noting that federal district courts do not have jurisdiction "over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional" (quoting Feldman, 460 U.S. at 486), the district court found that "insofar as the plaintiff seeks in this case to challenge his conviction for a domestic-violence misdemeanor, the `Rooker-Feldman doctrine' bars this court from correcting a state court judgment, and no relief is available in this court to do so.").
Plaintiff's claim against Judge Krause and Mr. Church, seeking injunctive relief from these defendants to overturn the state court's judgment and "expunge" his domestic violence conviction, should be dismissed for lack of jurisdiction under the Rooker-Feldman doctrine.
Plaintiff's claims against the remaining two defendants, police officers Dietrich and McCulloch, appear to be for a false arrest in violation of his Fourth Amendment rights. These two defendants have moved for summary judgment pursuant to Fed. Rules Civ. Proc. 56. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by":
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the burden of proof in deciding a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the court is not bound to blindly adopt a non-moving party's version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
Plaintiff's false arrest claim fails because he was subsequently convicted of charge arising from his arrest. "A plaintiff bringing a constitutional claim of false arrest under the Fourth Amendment must show that there was not probable cause for the arrest." Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997). However, this claim cannot stand if the plaintiff is convicted after the arrest. Such a result is precluded by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 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, 28 U.S.C. § 2254." Heck, 512 U.S. at 486-87 (footnote omitted). This court has previously held that an unlawful arrest claim brought pursuant to § 1983, like plaintiff's, is subject to the Heck bar when the plaintiff is subsequently convicted:
Richards v. Kent County Sheriff's Department, No. 1:09-cv-748, 2009 WL 3837192 at *4 (W.D. Mich. Nov. 16, 2009).
The court's rationale expressed in Richards, Schreiber, DiFoggi and Barton is applicable to this case. After his arrest, plaintiff was charged with domestic violence and convicted of that crime. Because plaintiff's false arrest claim implies the invalidity of his state-court conviction and sentence, his false arrest claim seeking damages is barred by Heck. Accordingly, Officers Dietrich and McCulloch are entitled to summary judgment on this claim.
Based on plaintiff's cryptic complaint, the only injunctive relief he seeks is against Officers Dietrich and McCulloch directing these officers to expunge his conviction. Plaintiff seeks relief that is not available. Under Michigan law, the procedure to set aside ("expunge") a conviction is set forth in M.C.L. § 780.621 and is commenced by the filing of an application to set aside the conviction in the convicting court. The decision to grant or deny an application under M.C.L. § 780.621 is within the trial court's discretion. People v. Van Heck, 252 Mich.App. 207, 210 fn. 3, 651 N.W.2d 174 (2002). Officers Dietrich and McCulloch are not authorized to expunge plaintiff's conviction. Accordingly, they are entitled to summary judgment to the extent that plaintiff seeks this injunctive relief from them as parties.
The Sixth Circuit has recognized a Fourth Amendment claim for malicious prosecution. See generally, Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006); Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003). This type of claim encompasses a wrongful investigation, prosecution, conviction and incarceration. Id. The Sixth Circuit, however, has not determined the elements of this constitutional violation. See Thacker, 328 F.3d at 259 ("[a]lthough this Court has yet to resolve the elements of a federal malicious prosecution claim, it is clear that a plaintiff must show, at a minimum, that there was no probable cause to justify [his] arrest and prosecution)" (internal quotation marks omitted). In Miller v. Sanilac County, 606 F.3d 240, 247-48 (6th Cir. 2010), the Sixth Circuit "affirmed without deciding" the district court's determination that state law was the proper standard to be used in deciding a malicious prosecution claim under § 1983. The Sixth Circuit relied on the elements of malicious prosecution as set forth in Walsh v. Taylor, 263 Mich.App. 618, 632-33, 689 N.W.2d 506 (2004):
Walsh, 263 Mich. App. at 632-33.
Although the Sixth Circuit has not explicitly adopted the elements of malicious prosecution as outlined in Miller, the tort of malicious prosecution, as that tort is understood in our jurisprudence, requires a plaintiff to demonstrate that the criminal proceedings terminated in his favor. See, e.g., Theriot v. Wayne County Prosecutor, No. 11-13413, 2011 WL 3799661 at *2 (Aug. 29, 2011) (noting that a Fourth Amendment claim for malicious prosecution under § 1983 does not exist unless the underlying criminal case is terminated in the plaintiff's favor) (citing Miller, 606 F.3d at 247). In this regard, the Supreme Court looked to the tort of malicious prosecution and its requirement of a favorable termination as the "model" for the Heck bar to § 1983 actions. See Wallace v. Kato, 549 U.S. 384, 394 (2007). See also, Heck, 512 U.S. at 484-85 ( "One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused . . . We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution"). Plaintiff has neither alleged nor demonstrated that the criminal proceedings were terminated in his favor. Therefore, defendants are entitled to summary judgment on his claim of malicious prosecution.
For these reasons, I respectfully recommend that defendants' motions to dismiss and for summary judgment (docket nos. 24, 31 and 35) be
