UNITEDSTATESDISTRICTCOURT EASTERN DISTRICT OF MICHIGAN SOUTHERNDIVISION SAMUEL DIXON, JR., Plaintiff, CaseNumber23-12667 HonorableDavidM.Lawson v. MICHIGANDEPARTMENTOF CORRECTIONS, Defendant. / OPINIONANDORDERVACATINGORDERTO CORRECT DEFICIENCIES, GRANTINGMOTIONTOPROCEEDWITHOUTPREPAYMENTOFFEES,AND DISMISSINGCOMPLAINTWITHPREJUDICE Plaintiff Samuel Dixon, Jr., a prisoner in the custody of the Michigan Department of Corrections, filed this lawsuit under 42 U.S.C. ' 1983 alleging that his constitutional rights were violated when he was “excluded by militia,” presumably from membership in an unorganized militia. Dixon is not represented by an attorney. His complaint does not contain much factual content. He did apply to proceed in this court without prepayment of fees. He satisfies the indigency criteria. However, after conducting the screening required by the Prison Litigation ReformAct (PLRA),itappearsthatthe complaint must be dismissedasfrivolous. I. The complaint contains very little inthe wayof factual allegations. Dixon asserts that the rights being violated are those found under a section of the Michigan Military Act titled “Organized militia; unorganized militia.” Mich. Comp. Laws § 32.509. This section states that “[t]heunorganizedmilitiaconsistsofallotherable-bodiedcitizensofthisstateandallotherable- bodied citizens who are residents of this state who have or shall have declared their intention to become citizens of the United States, who shall be age 17 or over and not more than age 60,” distinguishing it fromthe “organized militia,” which includes national guard units, among others. Ibid. Dixon states four times in his complaint that he is being excluded from the Michigan
Militia. Compl. at 4, 5, 7, ECF No. 1, PageID.4, 5, 7. He does not attribute this exclusion to the Michigan Department of Corrections or any other person or entity. Dixon asserts he is familiar with the militia, and that his claim arose at Michigan State University in Spring 2010 and at the Oaks Correctional Facility in December 2016. Id. at 6, PageID.6. He describes his injuries as “identity theft,” and the remedy he seeks is “[r]estoration” with no further elaboration. Id. at 8, PageID.8. Dixonfiledapetitiontoproceedwithoutprepaymentofthefilingfeesbutfailedtoprovide the required certified institutional trust account statement. He also filed a letter with the Court explainingthatthe“MDOCwillnotprocess”hisrequestfortheaccountstatement. Themagistrate
judge enteredanorderrequiringhimtocorrect thedeficiency. ECFNo.6. II. When, as here, a plaintiff has asked the Court to waive fees and costs because he cannot affordtopaythem,theCourt hasanobligationto screen thecaseformerit and dismissthecaseif it “(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)(B). Also, the Prison Litigation Reform Act (PLRA) requires the Court to examine a prisoner’scomplaintwhenitisfiledandtodismissitbeforeserviceonadefendantiftheactionis 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. 42 U.S.C. § 1997e(c). The same screening is required when the complaint seeks redress against government entities, officers, and employees. 28U.S.C.§1915A. Acomplaintisfrivolousifitlacksanarguablebasiseitherinlaw or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dixon’s complaint suffers from a number of defects. First, the complaint must be dismissedbecausethesolenameddefendant,theMichiganDepartmentofCorrections,isimmune fromsuit. LawsuitsagainsttheMichiganDepartmentofCorrectionsare“‘barredbytheEleventh Amendment, unless [the State] has consented to the filing of such a suit,’ or unless Congress has expressly abrogated Eleventh Amendment immunity.” Harrison v. Michigan, 722 F.3d 768, 771 (6thCir.2013)(citingAlabamav.Pugh,438U.S.781,782(1978);PennhurstStateSch.&Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). “Michigan has not consented to the filing of civil rights suits against it in federal court.” Ibid. (citing Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986)). And Congress did not abrogate state sovereign immunity when it enacted 42 U.S.C. §
1983. Chaz Const., LLC v. Codell,137F.App’x735,743(6thCir.2005). Second, Dixon does not outline a cause of action in his complaint that this Court can redress. He appears to invoke the federal civil rights statute, 42U.S.C. §1983, as the basis of his lawsuit. To state a claim under that statute, a plaintiff must allege that (1) he was deprived of a right, privilege,or immunity securedby the federalConstitution or laws of the United States; and (2)thedeprivationwascausedbyapersonactingundercolorofstatelaw. FlaggBros.v.Brooks, 436 U.S. 149, 155-57 (1978); Harris v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). Additionally, a plaintiff must allege that the deprivation of his rights was intentional. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986); Daniels v. Williams, 474 U.S. 327, 333-36 (1986). Dixon alleges that he was excluded from the state militia, and he cites Michigan statutes for the rights he believes have been violated. But section 1983 does not itself create rights; it merely provides access to federal courts to vindicate the violation of rights created by “the Constitution and laws” of the United States. 42 U.S.C. § 1983. It“doesnotapplytostatelawclaims.” Savagev.CityofPontiac,743F.Supp.2d678,683
(E.D. Mich. 2010), aff'd, 483 F. App’x 943 (6th Cir. 2012) (citing Braley v. City of Pontiac, 906 F.2d220,223(6thCir.1990)). Third, Dixon’s complaint does not describe a redressable cause of action. A complaint filedbyanunrepresentedparty istobeconstruedliberally. Haines v.Kerner, 404U.S.519,520- 21 (1972). However, Federal Rule of Civil Procedure 8(a) requires that all complaints must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” BellAtlanticCorp.v.Twombly,550U.S.544,555(2007)(quotingConleyv.Gibson,355U.S.41,
47 (1957) and Fed. R. Civ. P. 8(a)(2)). This notice pleading standard does not require detailed factualallegations,butitdoesrequiremorethanthebareassertionoflegalconclusions. Twombly, 550U.S.at555.
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UNITEDSTATESDISTRICTCOURT EASTERN DISTRICT OF MICHIGAN SOUTHERNDIVISION SAMUEL DIXON, JR., Plaintiff, CaseNumber23-12667 HonorableDavidM.Lawson v. MICHIGANDEPARTMENTOF CORRECTIONS, Defendant. / OPINIONANDORDERVACATINGORDERTO CORRECT DEFICIENCIES, GRANTINGMOTIONTOPROCEEDWITHOUTPREPAYMENTOFFEES,AND DISMISSINGCOMPLAINTWITHPREJUDICE Plaintiff Samuel Dixon, Jr., a prisoner in the custody of the Michigan Department of Corrections, filed this lawsuit under 42 U.S.C. ' 1983 alleging that his constitutional rights were violated when he was “excluded by militia,” presumably from membership in an unorganized militia. Dixon is not represented by an attorney. His complaint does not contain much factual content. He did apply to proceed in this court without prepayment of fees. He satisfies the indigency criteria. However, after conducting the screening required by the Prison Litigation ReformAct (PLRA),itappearsthatthe complaint must be dismissedasfrivolous. I. The complaint contains very little inthe wayof factual allegations. Dixon asserts that the rights being violated are those found under a section of the Michigan Military Act titled “Organized militia; unorganized militia.” Mich. Comp. Laws § 32.509. This section states that “[t]heunorganizedmilitiaconsistsofallotherable-bodiedcitizensofthisstateandallotherable- bodied citizens who are residents of this state who have or shall have declared their intention to become citizens of the United States, who shall be age 17 or over and not more than age 60,” distinguishing it fromthe “organized militia,” which includes national guard units, among others. Ibid. Dixon states four times in his complaint that he is being excluded from the Michigan
Militia. Compl. at 4, 5, 7, ECF No. 1, PageID.4, 5, 7. He does not attribute this exclusion to the Michigan Department of Corrections or any other person or entity. Dixon asserts he is familiar with the militia, and that his claim arose at Michigan State University in Spring 2010 and at the Oaks Correctional Facility in December 2016. Id. at 6, PageID.6. He describes his injuries as “identity theft,” and the remedy he seeks is “[r]estoration” with no further elaboration. Id. at 8, PageID.8. Dixonfiledapetitiontoproceedwithoutprepaymentofthefilingfeesbutfailedtoprovide the required certified institutional trust account statement. He also filed a letter with the Court explainingthatthe“MDOCwillnotprocess”hisrequestfortheaccountstatement. Themagistrate
judge enteredanorderrequiringhimtocorrect thedeficiency. ECFNo.6. II. When, as here, a plaintiff has asked the Court to waive fees and costs because he cannot affordtopaythem,theCourt hasanobligationto screen thecaseformerit and dismissthecaseif it “(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)(B). Also, the Prison Litigation Reform Act (PLRA) requires the Court to examine a prisoner’scomplaintwhenitisfiledandtodismissitbeforeserviceonadefendantiftheactionis 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. 42 U.S.C. § 1997e(c). The same screening is required when the complaint seeks redress against government entities, officers, and employees. 28U.S.C.§1915A. Acomplaintisfrivolousifitlacksanarguablebasiseitherinlaw or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dixon’s complaint suffers from a number of defects. First, the complaint must be dismissedbecausethesolenameddefendant,theMichiganDepartmentofCorrections,isimmune fromsuit. LawsuitsagainsttheMichiganDepartmentofCorrectionsare“‘barredbytheEleventh Amendment, unless [the State] has consented to the filing of such a suit,’ or unless Congress has expressly abrogated Eleventh Amendment immunity.” Harrison v. Michigan, 722 F.3d 768, 771 (6thCir.2013)(citingAlabamav.Pugh,438U.S.781,782(1978);PennhurstStateSch.&Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). “Michigan has not consented to the filing of civil rights suits against it in federal court.” Ibid. (citing Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986)). And Congress did not abrogate state sovereign immunity when it enacted 42 U.S.C. §
1983. Chaz Const., LLC v. Codell,137F.App’x735,743(6thCir.2005). Second, Dixon does not outline a cause of action in his complaint that this Court can redress. He appears to invoke the federal civil rights statute, 42U.S.C. §1983, as the basis of his lawsuit. To state a claim under that statute, a plaintiff must allege that (1) he was deprived of a right, privilege,or immunity securedby the federalConstitution or laws of the United States; and (2)thedeprivationwascausedbyapersonactingundercolorofstatelaw. FlaggBros.v.Brooks, 436 U.S. 149, 155-57 (1978); Harris v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009); Brock v. McWherter, 94 F.3d 242, 244 (6th Cir. 1996). Additionally, a plaintiff must allege that the deprivation of his rights was intentional. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986); Daniels v. Williams, 474 U.S. 327, 333-36 (1986). Dixon alleges that he was excluded from the state militia, and he cites Michigan statutes for the rights he believes have been violated. But section 1983 does not itself create rights; it merely provides access to federal courts to vindicate the violation of rights created by “the Constitution and laws” of the United States. 42 U.S.C. § 1983. It“doesnotapplytostatelawclaims.” Savagev.CityofPontiac,743F.Supp.2d678,683
(E.D. Mich. 2010), aff'd, 483 F. App’x 943 (6th Cir. 2012) (citing Braley v. City of Pontiac, 906 F.2d220,223(6thCir.1990)). Third, Dixon’s complaint does not describe a redressable cause of action. A complaint filedbyanunrepresentedparty istobeconstruedliberally. Haines v.Kerner, 404U.S.519,520- 21 (1972). However, Federal Rule of Civil Procedure 8(a) requires that all complaints must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” as well as “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” BellAtlanticCorp.v.Twombly,550U.S.544,555(2007)(quotingConleyv.Gibson,355U.S.41,
47 (1957) and Fed. R. Civ. P. 8(a)(2)). This notice pleading standard does not require detailed factualallegations,butitdoesrequiremorethanthebareassertionoflegalconclusions. Twombly, 550U.S.at555. Rule8“demandsmorethananunadorned,thedefendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ibid. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’devoidof‘furtherfactualenhancement.’” Ibid.(quotingTwombly,550U.S.at557). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations and footnote omitted). Dixon has made no allegations that link the soledefendant—theMichiganDepartmentofCorrections—tohisexclusionfromtheMichigan Militia. Fourth, the events that Dixon describes in his complaint allegedly occurred in 2010 and 2016. If the allegations in a complaint show that relief is barred by the applicable statute of
limitations,thecomplaintissubjecttodismissalforfailuretostateaclaimuponwhichreliefmay be granted. Jones v. Bock, 549 U.S. 199, 215 (2007); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Jones and holding that if, on the face of a complaint, the allegations show that relief is barred by an affirmativedefense(lackofexhaustion),thecomplaintissubjecttodismissalforfailuretostatea claim). The Court may raise the statute of limitations issue on its own when screening a civil rights complaint. Norman v. Granson, No. 18-4232, 2020 WL 3240900, *2 (6th Cir. March 25, 2020)(“Whereastatuteoflimitationsdefectisobviousfromthefaceofthecomplaint,suasponte dismissal is appropriate.”) (citing Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir.
1988)); Scruggs v. Jones, 86 F. App’x 916, 917 (6th Cir. 2004) (affirming district court’s sua sponte dismissal of civil rights complaint on statute of limitations grounds); Watson v. Wayne Cnty.,90F.App’x814,815(6thCir.2004)(holdingthatacourtmayraisethestatuteoflimitations issue suaspontewhenthedefenseisapparentonthe faceofthe pleadings). As noted above, the plaintiff’s claim is brought via 42 U.S.C. § 1983. Section 1983 does not provide a statute of limitations. Instead, the appropriate statute of limitations to be applied in all section 1983 actions is the state statute of limitations governing actions for personal injury in the forum state. McCune v. City of Grand Rapids, 842 F.2d 903, 905-06 (6th Cir. 1988) (citing Wilson v. Garcia, 471 U.S. 261, 276-80 (1985)). Michigan’s three-year statute of limitations for personalinjuryclaims,Mich.Comp.Laws§600.5805(8),“governssection1983actionswhenthe causeofactionarisesinMichigan,” McCune, 842F.2d at905. Thestatuteoflimitationsbeginstorunwhenthecauseofactionaccrues,which,inasection 1983 action, “is a question of federal law.” Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 635 (2007) (citing Kuhnle Bros., Inc. v. Cnty. of Geauga, 103 F.3d 516, 519 (6th
Cir. 1997)). “[I]t is the standard rule that accrual occurs when the plaintiff has a complete and present cause of action ... that is, when the plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (citing Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal.,522U.S.192,201(1997)(quotationmarksandcitationsomitted)). DixonsaysthathewasexcludedfromthemilitiaatMichiganStateUniversityintheSpring of2010andwhileattheOaksCorrectionalFacilityinDecember2016. NothinginDixon’sfiling suggests that he recently became aware of these exclusions, and it appears that he had adequate information available to him to complain about them at the time. So he should have brought his claim, if he had a claim, by the Spring of 2013 and by December 2019, respectively. However,
hiscomplaintwasnotfiled inthiscourt until October 20,2023. Michigan amended its laws in 1993 to eliminate imprisonment as a disability that would toll the statute of limitations. See Mich. Comp. Laws § 600.5851(9). Nor does Michigan law encourage equitable tolling of a period of limitations; rather tolling must be based on a statute. TheMichiganSupremeCourthasallowedthat“[e]quitabletolling.. .hasalegalbasisarisingout of our common law, and it may be invoked when traditional equitable reasons compel such a result.” McDonald v. Farm Bureau Ins. Co., 480 Mich. 191, 204, 747 N.W.2d 811, 819 (2008). But that court also has asserted that equity does not “trump an unambiguous and constitutionally valid statutory enactment.” Devillers v. Auto Club Ins. Ass’n, 473 Mich. 562, 591, 702 N.W.2d 539,556(2005). Ithasreasonedthat “ifcourtsarefreetocastasideaplainstatuteinthenameof equity, even in ... tragic case[s] ..., then immeasurable damage [would] be caused to the separation of powers mandated by our Constitution.” Trentadue v. Buckler Lawn Sprinkler Co, 479 Mich. 378, 406-07, 738 N.W.2d 664, 680 (2007) (citing Devillers, 473 Mich. at 591, 702 N.W.2dat556-57).
The statute of limitations applicable to prisoner civil rights complaints under 42 U.S.C. § 1983 is tolled while a prisoner exhausts the administrative grievance process because the PLRA requiresaprisonertoexhaust“administrativeremedies”beforefilingsuitunder§1983. Surlesv. Andison, et al., 678 F.3d 452, 458 (6th Cir. 2012); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000). However, there is no indication that the plaintiff even pursued available administrative remedies before filing this action. And the MDOC’s grievance policy provides a timeline for the filing of grievances, appeals, and responses that would span a maximum of five months. (A Step Igrievancemustbefiledwithin5businessdaysofthefailureofaninformalattemptatresolution; a response must be filed within 15 days with a possible 15-day extension; then a Step II appeal
must be filed within 10 days, and a response must be filed within 15 days with a possible 15-day extension; then a Step III appeal must be filed within 10 days, with a response generally filed within 60 days. See MDOC Policy Directive 03.02.130.) Allowing for the maximum exhaustion time periods, the plaintiff’s October20,2023filingstillwouldbelate. Because oftheseseveral defects,Dixon’s complaintmust bedismissed. III. Dixonfiledapetitiontoproceedwithoutprepaymentofthefilingfee,butthatpetitionwas notinfullcompliancewiththerequirementsof28U.S.C.§1915(a)(2). Hewasorderedtocorrect the lack of a certified trust account statement, but he responded with an explanation that he was unable to obtain such astatement from the MDOC. ECF No. 4. ItappearsthatDixonattemptedtoobtaintherequiredstatementbutwasunsuccessful. As anotherCourtwithinthisDistrictobservedwhenitgrantedDixoninformapauperisstatus,Dixon reportshisgrosspayis$11.84permonthandhehasnoothersourceofincome[,]”andhehasonly
$137.00 in a savings or checking account. See Dixon v. Michigan Dep’t of Corrs. Control Ctr., No.23-12668,Order,ECFNo.4,PageID.21. Dixonhasdemonstratedhisindigency,andtheorder requiring him to correct his filingdeficiencywillbe vacated. IV. The plaintiff’s complaint is frivolous because it seeks relief from a defendant that is immune from suit, it is untimely, and it fails to state a claim upon which relief may be granted. ThePLRA,28U.S.C.§§1915(e)(2)(B)and1915A(b), thereforerequiresthe Courttodismissthe case summarily. Accordingly, it is ORDERED that the Order directing plaintiff to correct a filing
deficiency(ECFNo.6)isVACATED,andhisapplicationtoproceedinformapauperis(ECFNo. 2) is GRANTED. It isfurtherORDERED that complaint is DISMISSEDWITHPREJUDICE. s/DavidM.Lawson DAVIDM. LAWSON United States District Judge Date: January 16,2024