                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0315n.06

                                            No. 09-5480                                    FILED
                                                                                       May 12, 2011
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


YOUNG BOK SONG,                                            )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellant,                                )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE MIDDLE
v.                                                         )        DISTRICT OF TENNESSEE
                                                           )
BRETT M. GIPSON, Detective; JOHN DOE, I; JOHN              )                 OPINION
DOE, II, Police Officers in Nashville, Tennessee.          )
                                                           )
       Defendants-Appellees.                               )



BEFORE: MARTIN, NORRIS, and COOK, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. This appeal obliges us to re-examine the parameters

of the “liberal pleading” standard accorded to pro se litigants. Specifically, appellate pro bono

counsel contend that the district court erred when it failed sua sponte to re-characterize pro se

plaintiff’s complaint, which was specifically styled a section 1983 action, as a petition for a writ of

habeas corpus. Counsel urges us to remand the matter with instructions that the district court

reconsider the complaint as a habeas petition. For the reasons that follow, we decline this invitation

and affirm the judgment of the district court.



                                                  I.

       Plaintiff Young Bok Song is a Korean national who relocated to the United States in 1994.

On September 17, 2004, a Tennessee jury convicted him of seven counts of rape of a child and four
No. 09-5480
Song v. Gipson

counts of aggravated sexual battery. State v. Song, No. M2004-02885-CCA-R3-CD, 2005 WL

2978972 at *1 (Tenn. Crim. App. Nov. 4, 2006). He received a sentence of sixty-five years of

incarceration. Id. The opinion of the Tennessee Court of Criminal Appeals contains an extensive

factual recitation, which does not affect the resolution of this appeal. Id. at *1-5. Suffice it to say

that plaintiff was convicted of repeatedly raping the daughter of the woman with whom he was

living. These sexual assaults spanned several years and culminated when the victim was twelve

years old.

       Plaintiff appealed his conviction throughout the courts of Tennessee, including a petition for

post-conviction relief. Song v. State, No. M2007-00404-CCA-R3-PC, 2008 WL 624926 (Tenn.

Crim. App. Mar. 4, 2008). In his post-conviction petition plaintiff alleged that his trial counsel

rendered ineffective assistance by not retaining an interpreter. Id. at *8. The Court of Criminal

Appeals rejected that claim and affirmed the conviction.

       On March 5, 2009, plaintiff filed a pro se complaint in federal district court. Plaintiff used

a pre-printed form styled, “Complaint for Violation of Civil Rights (42 U.S.C. § 1983).” Section

IV of this form requires a statement of the claims. Plaintiff asserted that his English was limited and

requested the appointment of a “certified” interpreter or translator. He also submitted a handwritten

“Korean Complaint.”

       The named defendants included Detective Brett Gipson of the Nashville police department

and two unnamed “John Doe” police officers who assisted in the transportation of plaintiff from

Fayetteville, North Carolina, where he was arrested, to Nashville, where the charges had been filed.

Plaintiff sought relief in the form of two million dollars from Detective Gipson and one million each

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from the John Doe defendants. Attached to the complaint are all manner of documents, ranging from

the Universal Declaration of Human Rights to the incident report submitted by Detective Gipson.

       The district court responded by ordering plaintiff to submit an English-language complaint

within twenty days. Plaintiff then filed motions for appointment of counsel and an interpreter, as

well as a motion construed as a motion for an extension of time. The district court granted a 30-day

extension but denied appointment of counsel or an interpreter.

       The following month, plaintiff filed an “English Composition of the Complaint by the Order

of the Court.” Like his first complaint, it included numerous attachments. This document does not

explicitly invoke section 1983. Plaintiff asserts his rights under the Vienna Convention on Consular

Relations. The complaint contains the following general allegations:

              I was arrested for what I did not commit, 2003/11/18, when I was 40 years
       old. But In America I just was like 10 years old boy in English, in America Culture,
       and in America Law System, and so far.

               My arresting was at North Carolina.

               After arresting, around a week later I was moved to Tennessee/Nashville.
       That time I met two Nashville Police. They did not tell me their name so I don’t
       know. Later I knew that they are Police in Fusitive [sic] Section in Nashville. They
       did not tell me about my Rights or Miranda or any. They did not tell me about the
       Vienna Convention on Consular Relations Notification. They hand cup [sic] me in
       back and they shackle my legs, and put me in the back of the car, and drive almost
       10-15 hours, and put me in Jail at Tennessee/Nashville (C.J.C.?). And after that I
       have long-tough-enslavement.

               Other than this two Police, I found later, that there was one more police who
       control all of this. He was Det. Brett M. Gipson. He knew from the beginning of this
       case my cell-phone #. But he never even try to call me to listen my story he just
       issued the Indictment and made me a refusee, escapee, or some. And he made false
       criminal record for me and issued the Indictment easily. And all they knew that I was
       Korean Foreigner, and all they knew that I was a minister they never try to talk to me

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       before issue the Indictment. And they never inform me about the Vienna Convention
       Notification Matter.

             Because of their violation I was Violated my Fundamental Human Rights to
       Defend from the very beginning.

              I am not talking about some special rights. But I am just talking about My-
       already existing-God-given-Fundamental-Human-rights to defend myself properly
       or in meaningful way.

Later in the complaint, plaintiff asserts that his lack of English language competency, coupled with

the failure of the trial court to provide an interpreter, compromised his defense.

       Four days after the amended complaint was filed, the district court dismissed it sua sponte

for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). The crux of the district court’s

reasoning is the following:

              In order for the plaintiff to obtain § 1983 relief for an allegedly
       unconstitutional conviction or confinement, he must first prove that the conviction
       or confinement has been reversed on direct appeal, expunged by executive order,
       declared invalid by a state tribunal authorized to make such a determination, or called
       into question by a federal court’s issuance of a writ of habeas corpus. Heck v.
       Humphrey, 512 U.S. 477 (1994). The plaintiff has offered nothing to suggest that his
       conviction has already been declared invalid. Therefore, the plaintiff’s claims are not
       yet cognizable in a § 1983 action.

                                                 II.

       Appellate counsel contend that the gravamen of the complaint and the procedural posture of

the case indicate that plaintiff intended to seek a writ of habeas corpus, not to vindicate his civil

rights through a section 1983 action.       In support of that contention, they point to several

considerations. First, plaintiff exhausted all available appeals of his conviction in the courts of

Tennessee thereby making his habeas petition ripe for filing. Second, his amended complaint


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requests a new trial as a form of relief; a new trial is not a remedy available under section 1983 but

is available in habeas corpus. Third, pro se plaintiffs are subject to a less stringent pleading

standard. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Fourth, plaintiff’s complaint was filed

within the one-year statute of limitations that applies to habeas petitions, 28 U.S.C. § 2244(d);

because the district court did not treat it as a habeas petition, however, plaintiff is now precluded by

the statute of limitations from filing a habeas petition. If nothing else, counsel contend that justice

and equity require that plaintiff be afforded an opportunity to pursue habeas relief.

       Counsel direct us to cases in which the trial court’s decision to re-characterize a pro se filing

as a habeas petition has been upheld provided that the prisoner is warned that such a characterization

may preclude a subsequent petition. For instance, this circuit held that a district court could treat a

pro se federal prisoner’s motion “to dismiss for lack of territorial jurisdiction” as a § 2255 motion

to vacate. In Re Shelton, 295 F.3d 620, 621 (6th Cir. 2002). However, because the district court did

not inform the prisoner of its intention to do so, a subsequent § 2255 motion was not a barred by the

statutory limitation on successive motions. Id. at 622. The United States Supreme Court reached

the same conclusion the next year. Castro v. United States, 540 U.S. 375, 377 (2003). The Court

noted that “[f]ederal courts sometimes will ignore the legal label that a pro se litigant attaches to a

motion and recharacterize the motion in order to place it within a different legal category.” Id. at

381. When a district court does so, however, it must “notify the pro se litigant . . . that this

recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on

‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or

to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 383. Both Shelton

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Song v. Gipson

and Castro involved federal habeas claims. However, this circuit has applied this rule in the context

of a habeas petition from a state conviction. Martin v. Overton, 391 F.3d 710, 713 (6th Cir. 2004).

        While these cases make clear that the district court may on its own initiative re-characterize

a pro se pleading provided it gives notice to the litigant of potential adverse collateral consequences,

they do not stand for the proposition that a district court must sua sponte re-characterize a motion

or complaint. Defense counsel point to an unpublished decision from this court, Simpson v. Caruso,

355 F.App’x 927 (6th Cir. 2009), for the broad proposition that a district court must parse all claims

in the interest of fairness and the underlying policy of avoiding serious consequences to the

petitioner. In Simpson, the district court dismissed the prisoner’s complaint in toto as a section 1983

action even though it made mention of habeas corpus. This court affirmed that re-characterization

as to one claim but reversed and remanded a second claim that sounded in habeas because it invoked

unlawful custody in violation of an extradition treaty:

        Given that Simpson’s complaint (i) failed to cite § 1983 and instead cited the All
        Writs Act as a jurisdictional basis, (ii) referred to his motion for a writ of habeas
        corpus, and (iii) requested immediate release as relief, the district court erred in
        construing Simpson’s complaint as a § 1983 action rather than a habeas petition.
        This conclusion is also supported by the fact that the proper procedure for
        challenging his confinement as violating an extradition treaty is a habeas petition;
        and that pro se complaints are to be construed liberally, see Haines v. Kerner, 404
        U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam).

Id. at 930.

        While pro bono counsel have done a commendable job advocating on behalf of their client,

the line of cases, including Simpson, that they rely upon are readily distinguishable. Unlike the

petitioner in Simpson, plaintiff cited section 1983 in his original complaint, sought monetary


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damages, and sued individual police officers who had little or nothing to do with his conviction or

current incarceration. Moreover, in every other case relied upon by plaintiff, the district court re-

characterized the complaint or motion; here, the district court simply treated the complaint as it was

originally styled. Finally, Caruso and related cases are primarily concerned with protecting pro se

litigants from the adverse consequences of judicial re-characterization – specifically respecting

successive habeas petitions. The adverse consequence in this case is that plaintiff has forfeited his

ability to file a habeas petition within the statute of limitations because he ill-advisedly filed a section

1983 action instead. That is truly unfortunate, but it does not result from an action taken by the

district court. To hold in favor of plaintiff would impose an affirmative duty on district courts to

scrutinize pro se complaints to determine whether there is a cause of action other than the one

pleaded by the plaintiff that is more advantageous to him. While trial courts are already instructed

to construe pro se pleadings liberally, Haines, supra, and to warn plaintiffs of adverse collateral

consequences before re-characterizing those pleadings, Caruso, supra, we decline to affirmatively

require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would

that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into

advocates for a particular party. While courts are properly charged with protecting the rights of all

who come before it, that responsibility does not encompass advising litigants as to what legal

theories they should pursue.

                                                    III.

        The judgment of the district court is affirmed.



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