Opinion
Civil Action No. O2-CV-72379-DT
August 20, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL I. INTRODUCTION
This matter is before the court on plaintiff Herman L. Dixon's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is a prisoner currently confined at the Cooper Street Correctional Facility in Jackson, Michigan. Plaintiff reguests compensatory and punitive damages from each of the defendants, as well as declaratory and injunctive relief. The Court has reviewed plaintiff's complaint and now dismisses it for the reasons stated below.
II. STANDARD OF REVIEW
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) he or she was deprived of a right, privilege or immunity secured by the Federal Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law. Absent either element, a section 1983 claim will not lie. Hakken v. Washtenaw County, 901 F. Supp. 1245, 1249 (E.D. Mich. 1995). A pro se civil rights complaint is to be construed liberally. Middleton v. McGinnis, 860 F. Supp. 391, 392 (E.D. Mich. 1994). Under the Prison Litigation Reform Act of 1995 (PLRA), district courts are required to screen all civil cases brought by prisoners. See McGore v. Wriggiesworth, 114 F.3d 601, 608 (6th Cir. 1997). If a complaint fails to pass muster under 28 U.S.C. § 1915(e)(2) or § 1915A, the "district court should sue sponte dismiss the complaint." Id. at 612. Pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915(e)(2)(A), a district court must sue sponte dismiss an in forms pauperis complaint before service on the defendant if satisfied that the action is frivolous or malicious, that it fails to state a claim upon which relief may be granted, or that it seeks monetary relief from a defendant or defendants who are immune from such relief. McLittle v. O'Brien, 974 F. Supp. 635, 636 (E.D. Mich. 1997).
III. COMPLAINT
Plaintiff's complaint alleges different causes of action against thirty one defendants. For the purposes of brevity, the Court will summarize the nature of plaintiff's allegations.
The court notes that plaintiff's complaint involves claims which arise out of separate incidents and which involve different parties and unrelated issues. "concerns about management of a case in which plaintiffs are allowed to join claims arising from separate incidents each involving different parties and predominantly unrelated issues weigh heavily against exercising discretion, when any exists under the Federal Rules, to bring into one civil action such a complex array of claims and parties. This is an added reason for early case screening in which the court, in the exercise of case management authority, imposes some form of reasonably stringent particularity-of-claim requirement". Feliciano v. DuBois, 846 F. Supp. 1033, 1048 (D. Mass. 1994). Because plaintiff's unrelated claims are either without merit, noncognizable, or have not been properly exhausted, the court will address plaintiff's unrelated claims on the merits, rather than dismiss the complaint on this basis.
Plaintiff's main allegation is that while he was incarcerated in the St. Clair County Jail awaiting trial on an unspecified felony charge, certain parcels of land which plaintiff owned in Port Huron, Michigan were sold at a tax sale in May of 1998 for allegedly delinquent taxes. Plaintiff claims that he did not receive notice of this tax sale until eight months later. Plaintiff claims that he has attempted on numerous occasions to pay the delinquent taxes on his property or properties, but has been prevented from doing so because various of the defendants have either refused to provide him with tax statements for these properties or have given him tax statements which contain inaccurate or fraudulent amounts due and owing on these properties. Plaintiff further claims that on several occasions, various defendants have refused to accept checks that he tendered as payment for these back taxes.
Plaintiff further alleges that on January 21, 1998, defendant James M. Ladensack, the city inspector for the City of Port Huron, Michigan, issued a civil infraction against plaintiff for an alleged violation of Port Huron's blight ordinance. A hearing was set for February of 1998 before defendant Judge John G. Cummings, a district court judge in the 72nd District Court in Port Huron, Michigan. Plaintiff filed a motion to disqualify Judge Cummings from hearing the case because he was allegedly biased against plaintiff, but Judge Cummings refused to disqualify himself. Plaintiff claims that on April 8, 1998, Judge Cummings entered a "void" order which authorized several of the defendants to enter onto plaintiff's property and falsely arrest him and illegally seize his personal and income producing property. Plaintiff claims that these illegal acts were annexed to his property taxes for 1999, but offers no facts in support of this allegation.
Plaintiff further alleges that defendant Ladensack illegally seized property from plaintiff's homestead in October of 1999 and reported to defendant Kimberly A. Harmer, the Port Huron City Planning Director, that plaintiff's homestead was a dangerous and unsanitary structure and was a public nuisance. While confined at the Mound Correctional Facility in Detroit, Michigan, plaintiff received only forty eight hours notice that the Port Huron City Planning Commission would be taking adverse possession of his homestead. Plaintiff claims that this adverse possession also enhanced his property taxes for 2000.
Although not alleged in the body of the complaint, in his fourth cause of action, plaintiff claims that he was arrested without a warrant, denied the effective assistance of counsel, and convicted by a biased and prejudiced factfinder of an unspecified criminal offense in 1991.
Plaintiff has also filed a number of allegations against nine different defendants who are employed by the Michigan Department of Corrections (M.D.O.C.). To summarize these allegations, plaintiff first alleges that he was placed on suicide watch when he asked prison officials for permission to call defendant Harmer after he received notice that the Port Huron City Planning Commission would be taking possession of his property. Plaintiff claims that he has been retaliatorily transferred from cne prison facility to another facility on several occasions. Plaintiff also claims that various of the defendants at the Deerfield Correctional Facility, one of the facilities where he was transferred, refused to disburse a cashiers check to defendant Douglas B. Roberts, the Michigan State Treasurer, to be used to pay the delinquent taxes on plaintiff's property or properties. Plaintiff further claims that this check was wrongfully converted by M.D.O.C. officials.
Plaintiff claims that he filed a Step I grievance with Defendant Bill Martin the director of the M.D.O.C. on September 15, 2001, although he does not specify which claims he was filing a grievance for or which M.D.O.C. officials he was filing a grievance against. On November 19, 2001, plaintiff's Step I grievance was denied. On or about November 28, 2001, plaintiff filed a Step II grievance to defendant Carmen Palmer, the warden at the Deerfield Correctional Facility. On December 14, 2001, plaintiff filed a Step III grievance with Defendant Martin.
Plaintiff claims that he was transferred to the Egeler Correctional Facility on December 28, 2001, and was placed back into the prison system as a parole violator, even though he had never been before the Michigan Parole Board. While incarcerated at Egeler, plaintiff was forced to retake a test for tuberculosis, which made him sick. Plaintiff was also forced to double bunk in his cell. Plaintiff further claims that he received various pleadings from pending legal matters several months after the pleadings had been sent to him by the courts. Plaintiff claims that he filed several grievances which alleged the deprivation of personal and legal property, improper medical treatment, and retaliatory transfer. Plaintiff does not specify the dates that these grievances were filed, the precise nature of the claims alleged in each grievance, the persons whom the grievances were filed against, or when or how each grievance was resolved.
IV. DISCUSSION
A. Plaintiff's tax sale claim is barred from review by the Tax Injunction Act.
The Tax Injunction Act (TIA) states the following:
"The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."28 U.S.C. § 1341.
The TIA reflects "the fundamental principle of comity between federal courts and state governments that is essential to `Our Federalism,' particularly in the area of state taxation." Feir Assessment in Real Estete Ass'n v. McNary, 454 U.S. 100, 103 (1981). Although the TIA only expressly mentions injunctions, the policy of comity underlying the TIA bars declaratory judgment and 42 U.S.C. § 1983 damage actions as well. Fiedler v. State of New York, 925 F. Supp. 136, 138 (N.D.N.Y. 1996) (citing to McNary, 454 U.S. at 105). It is only when a state remedy is inadequate that a federal court may interfere with the state's tax processes. Id.
In Ayers v. Polk County, Ge., 697 F.2d 1375, 1376-1377 (11th Cir. 1983), the Eleventh Circuit held that a federal suit which challenged a county's levy and tax sale of a plaintiff landowner's properties and the related activities of the county sheriff and county attorney as being violative of the due process and equal protection clauses was barred under the principles of comity, where the plaintiff had a plain, adequate, and complete state remedy available to him. Likewise, in Pintozzi v. Scott, 436 F.2d 375, 377-378 (7th Cir. 1970), the Seventh Circuit held that a plaintiff's federal action to retain realty which had been seized by a receiver who had been appointed by a state judge was an action which involved the "levy or collection of taxes" within the meaning of § 1341, which prohibits a federal district court from enjoining the levy or collection of state taxes where a remedy may be had in the state courts.
In the present case, the language of the Tax Injunction Act and principles of comity bar plaintiff's lawsuit involving the tax sale of his properties and his attempts to regain them. Plaintiff has several available state remedies with which to regain his property. A property owner who loses his property in a tax sale or foreclosure is entitled to redeem that property from the tax sale purchaser. This right of redemption lasts for six months after the tax sale purchaser meets the statutory notice requirements. Halabu v. Benhke, 213 Mich. App. 598, 602, 541 N.W.2d 285 (1995) (citing to Mich. Comp. Laws § 211.140; Mich. Stat. Ann. § 7.198; Mich. Comp. Laws § 211.141; Mich. Stat. Ann. § 7.199). However, if proper notice is not served pursuant to Mich. Comp. Laws § 211.140, this six month period never begins to run and the property owner's right of redemption is not cut off. Ottaco, Inc. v. Kalport Development Co., Inc., 239 Mich. App. 88, 91, 607 N.W.2d 403 (1999). Because plaintiff alleges that he did not receive proper notice of the tax sale in this case, it is quite possible that the six month right to redemption did not begin to run in this case. In addition, Mich. Comp. Laws § 211.73; Mich. Stat. Ann. § 7. 118 provides that a civil action to set aside a tax sale may be brought within five years after the date of the purchase or the deed at the tax sale.
In the present case, plaintiff has adequate state remedies with which to either redeem his property or properties or to set aside the tax sale. Plaintiff is therefore barred, pursuant to the Tax Injunction Act and the principles of comity underlying that Act, from maintaining a § 1983 action for the actions surrounding the tax sale of his property and his attempts to redeem the property or have the tax sale set aside.
B. Plaintiff's other claims involving the alleged wrongful taking of his personal or real property are barred because plaintiff has failed to allege that his state remedies for compensation are inadequate.
Plaintiff also alleges that his real property was illegally seized by defendant Harmer for being a public nuisance. Plaintiff further claims that various defendants illegally seized personal property from him during searches of his premises in 1998 and 1999.
An unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful state post-deprivation remedy for the loss is available. Hudson v. Pelmer, 468 U.S. 517, 533 (1984); Bass v. Robinson, 167 F.3d 1041, 1049 (6th Cir. 1999) Likewise, a federal court cannot entertain a claim under the takings clause of the Fifth Amendment to the U.S. Constitution under § 1983 unless or until the complaining property owner has been denied an adequate post-deprivation remedy. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999). If there is compensation available for the taking of property through the state's administrative or judicial process, a landowner must have utilized that process and failed before he or she can bring a § 1983 action which alleges a violation of the takings clause of the Fifth Amendment to the U.S. Constitution. Calibre Spring Hill, Ltd. v. Cobb County, Ga., 715 F. Supp. 1577, 1581 (N.D. Ga. 1989)
In the present case, plaintiff has failed to plead the inadequacy of remedies in Michigan for him to obtain compensation for the alleged loss of his personal or real property, nor does he even indicate that he has attempted to obtain relief from any court or tribunal in Michigan. Because plaintiff does not allege the inadequacy of the post-deprivation remedies in the State of Michigan, his complaint is subject to dismissal. Bass v. Robinson, 167 F.3d at 1050.
C. Plaintiff's wrongful conviction claim is barred because he has failed to allege that this conviction has been set aside.
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 plaintiff 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 any of the defendants fail to state a claim for which relief may be granted and must, therefore, be dismissed. Weiss v. Sawyer, 28 F. Supp.2d 1221, 1230 (W.D. Okla. 1997)
D. Plaintiff's § 1983 claims against the M.D.O.C. defendants must be dismissed because he has failed to adequately allege the exhaustion of his administrative remedies.
The claims against the M.D.O.C. defendants must be dismissed because plaintiff has failed to prove that he exhausted his administrative remedies. 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act of 1996 (PLRA), provides that "Enjo action shall be brought with respect to prison conditions under section 1983 by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.'
A prisoner filing a 42 U.S.C. § 1983 case involving prison conditions must allege and show that he or she has exhausted all available state administrative remedies. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998); Mullins v. Smith, 14 F. Supp.2d 1009, 1011-1012 (E.D. Mich. 1998). Federal courts may enforce the exhaustion requirement sua sponte. Brown v. Toombs, 139 F.3d at 1104; See also Jones v. Smith, 266 F.3d 399, 400 (61h Cir. 2001). A prisoner's pro se § 1983 action is properly dismissed without prejudice in the absence of any indication in the complaint that the prisoner has properly exhausted his or her state administrative remedies as required by the PLRA. Brown v. Toombs, 139 F.3d at 1104.
In order to effectuate the language contained in § 1997e(a), a prisoner must plead his or her claims with specificity and show that they have been exhausted by attaching a copy of the applicable dispositions to the complaint, or in the absence of any documentation, describe with specificity the administrative proceeding and its outcome. Knuckles-El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). In the absence of particularized averments concerning exhaustion which show the nature of the administrative proceeding and its outcome, the action must be dismissed under § 1997e(a). Id.
In this case, plaintiff has neither attached any documentation showing that he has exhausted his administrative remedies with respect to the claims that he has alleged, nor has he pleaded with specificity the measures that he has taken to exhaust, or attempt to exhaust his remedies. Plaintiff's complaint has therefore not provided this Court with the particularized averments necessary for the Court to determine if plaintiff's claims have been exhausted. Thus, plaintiff's complaint should be dismissed. Knuckles-El v. Toombs, 215 F.3d at 642.
In the present case, although plaintiff alleges that he filed grievances with respect to some or all of his claims against the M.D.O.C. defendants, plaintiff has failed to adequately establish that he exhausted his available administrative remedies, because he has failed to identify which claims that he filed a grievance against nor has he provided documents for the final disposition of any grievance that he filed regarding those claims. See Julian-Bey v. Crowley, 24 Fed. Appx. 393, 394Z395 (6th Cir. 2001). The second problem with plaintiff's complaint is that he has failed to identify which of the M.D.O.C. defendants, if any, that he named in the grievances that he filed. Without any evidence from plaintiff that he identified any of these defendants in any administrative proceedings or that he had exhausted his administrative remedies with respect to each of these defendants, plaintiff would be unable to establish with particularity that he had exhausted his available administrative remedies against these defendants in order to maintain this complaint against the named defendants. See Gibbs v. Bolden, 151 F. Supp.2d 854, 857 (E.D. Mich. 2001). Plaintiff has therefore failed to show that he has exhausted his available administrative remedies with respect to his claims regarding the M.D.O.C. defendants.
V. ORDER
IT IS HEREBY ORDERED that plaintiff's complaint is DISMISSED.