Koubriti v. Convertino et al

Filing 14

MOTION to Dismiss by Richard Convertino. (Mullen, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,
Case No. 2:07-cv-13678
v.
HONORABLE MARIANNE O. BATTANI
RICHARD CONVERTINO,
MICHAEL THOMAS, and HARRY
RAYMOND SMITH, jointly and
severally, and in their individual
capacities,
Defendants.
________________________________________________________________________
Ben M. Gonek (P43716)
Ben M. Gonek, P.C.
615 Griswold Street
1300 Ford Building
Detroit, MI 48226
[phone]
Attorney for Plaintiff

Thomas W. Cranmer (P25252)
Matthew F. Leitman (P48999)
Gerald J. Gleeson, II (P53568)
David D. O’Brien (P65532)
Miller, Canfield, Paddock & Stone, P.L.C.
840 West Long Lake Road, Suite 200
Troy, Michigan 48098
[phone]
Attorneys for Defendant Harry Raymond Smith

Robert S. Mullen (P54827)
Progressive Legal Services
800 Starkweather St
Plymouth, MI 48170
[phone]
Attorney for Defendant Richard Convertino
________________________________________________________________________
DEFENDANT RICHARD CONVERTINO’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
NOW COMES Defendant, Richard Convertino, by and through counsel, Robert
S. Mullen, pursuant to Fed. R. Civ. P. 12(b)(6), and respectfully requests this Honorable
Court to dismiss this matter due to Plaintiff’s failure to state a claim upon which relief
can be granted, based upon the following:

1.

Plaintiff Karim Koubriti has filed a three-count Complaint and Jury

Demand pursuant to 42 U.S.C. § 1983, alleging claims arising under the Fourth, Fifth,
and Fourteenth Amendments to the United State Constitution.
2.

Mr. Koubriti is currently on pre-trial release status under the supervision

of Pretrial Services, awaiting trial for Conspiracy to Commit Mail Fraud, 18 U.S.C. § 371
under a Fourth Superseding Indictment issued in the same prosecution that is the subject
of this action.
3.

Defendant Richard Convertino was the Assistant United States Attorney

who obtained Mr. Koubriti’s criminal conviction under the Third Superseding Indictment
in that action.
4.

The gist of the Complaint and Jury Demand is that Defendant Richard

Convertino maliciously prosecuted Mr. Koubriti by conspiring with Defendant Michael
Thomas and Defendant Harry Raymond Smith to manufacture evidence against him and
that Defendant Convertino further manufactured evidence against Mr. Koubriti, withheld
exculpatory evidence showing that Mr. Koubriti was not guilty of terrorist related
charges, and failing to turn over exculpatory evidence and prosecuting him on terrorism
related charges.
5.

Plaintiff’s Complaint and Jury Demand fails to state a claim upon which

relief can be granted because Plaintiff’s Fifth Amendment due process malicious
prosecution claim requires that the alleged deprivation occur as a result of federal action,
but liability under 42 U.S.C. § 1983 requires that the alleged deprivation occur as a result
of state action.

2

6.

Plaintiff’s Complaint and Jury Demand fails to state a claim upon which

relief can be granted because Plaintiff’s Fourteenth Amendment due process malicious
prosecution claim is not cognizable in a 42 U.S.C. § 1983 action.
7.

Plaintiff’s Complaint and Jury Demand fails to state a claim upon which

relief can be granted because Plaintiff’s Fourth Amendment due process malicious
prosecution claim fails to allege that the purported deprivation of constitutional rights
was the result of action taken under color of state law.
8.

Plaintiff’s Complaint and Jury Demand fails to state a claim upon which

relief can be granted because Plaintiff’s Fourth Amendment due process malicious
prosecution claim fails to allege that Plaintiff was arrested or prosecuted in the absence of
probable cause.
9.

Plaintiff’s Complaint and Jury Demand fails to state a claim upon which

relief can be granted because Defendant Convertino enjoys absolute immunity from
section 1983 liability for functions that he performed in his capacity as an Assistant
United States Attorney General.
10.

In support of this motion, Defendant Convertino relies upon the arguments

contained in his accompanying Brief in Support, which is hereby incorporated in full by
reference.
11.

There was a conference between attorneys or unrepresented parties in

which the movant explained the nature of the motion or request and its legal basis and
requested but did not obtain concurrence in the relief sought.

3

WHEREFORE, Defendant Richard Convertino respectfully requests this
Honorable Court to enter an Order dismissing this action for failure to state a claim upon
which relief can be granted and granting other relief to which it may appear that he is
entitled.
Respectfully submitted,

Dated: December 7, 2007

s/Robert S. Mullen
___________________________________
Robert S. Mullen
Attorney for Defendant Richard Convertino
Progressive Legal Services
800 Starkweather Street
Plymouth, MI 48170
[phone]
[e-mail]
Bar Number: P54827

4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,
Case No. 2:07-cv-13678
v.
HONORABLE MARIANNE O. BATTANI
RICHARD CONVERTINO,
MICHAEL THOMAS, and HARRY
RAYMOND SMITH, jointly and
severally, and in their individual
capacities,
Defendants.
________________________________________________________________________
Ben M. Gonek (P43716)
Ben M. Gonek, P.C.
615 Griswold Street
1300 Ford Building
Detroit, MI 48226
[phone]
Attorney for Plaintiff

Thomas W. Cranmer (P25252)
Matthew F. Leitman (P48999)
Gerald J. Gleeson, II (P53568)
David D. O’Brien (P65532)
Miller, Canfield, Paddock & Stone, P.L.C.
840 West Long Lake Road, Suite 200
Troy, Michigan 48098
[phone]
Attorneys for Defendant Harry Raymond Smith

Robert S. Mullen (P54827)
Progressive Legal Services
800 Starkweather St
Plymouth, MI 48170
[phone]
Attorney for Defendant Richard Convertino
________________________________________________________________________

BRIEF IN SUPPORT OF
DEFENDANT RICHARD CONVERTINO’S
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

CONCISE STATEMENT OF ISSUES PRESENTED
I.

Should this Court dismiss Plaintiff Karim Koubriti’s Fifth Amendment due
process malicious prosecution claim where such claims require that the alleged
deprivation occur as a result of federal action, yet liability under 42 U.S.C. § 1983
requires that the alleged deprivation occur as a result of state action?
Defendant Convertino says: YES

II.

Should this Court dismiss Plaintiff Karim Koubriti’s Fourteenth Amendment due
process malicious prosecution claim where no such claim is cognizable in a 42
U.S.C. § 1983 action?
Defendant Convertino says: YES

III. Should this Court dismiss Plaintiff Karim Koubriti’s Fourth Amendment due
process malicious prosecution claim where Plaintiff has failed to plead that the
alleged deprivation of constitutional rights was the result of action taken under
color of state law?
Defendant Convertino says: YES

IV. Should this Court dismiss Plaintiff Karim Koubriti’s Fourth Amendment due
process malicious prosecution claim where Plaintiff has failed to plead that he
was prosecuted in the absence of probable cause?
Defendant Convertino says: YES

V.

Should this Court dismiss Plaintiff Karim Koubriti’s Fourth Amendment due
process malicious prosecution claim against Defendant Convertino based upon
the doctrine of absolute prosecutorial immunity for functions that Defendant
Convertino performed in his capacity as an Assistant United States Attorney
General?
Defendant Convertino says: YES

ii

MOST APPROPRIATE AUTHORITY FOR RELIEF SOUGHT
I.

Fifth Amendment due process claims require federal action and liability under 42
U.S.C. § 1983 requires state action
Bolling v. Sharp, 347 U.S. 497 (1954)
Flagg Bros. v. Brooks, 436 U.S. 149 (1978)
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)
Scott v. Clay County, Tenn., 205 F.3d 867 (6th Cir.),
cert. denied, 531 U.S. 874 (2000)
Erdman v. Granholm, 2007 WL 757894, *6 fn. 4 (W.D. Mich. 2007)
Thompson v. Michigan Parole Bd., 2006 WL 3804892, *3 (E.D. Mich. 2006)

II.

Fourteenth Amendment due process malicious prosecution claims do not exist
Albright v. Oliver, 510 U.S. 266 (1994)

III. Plaintiff’s Fourteenth Amendment due process malicious prosecution claim fails
to allege action taken under color of state law
Ana Leon T. v. Federal Reserve Bank of Chicago, 823 F.2d 928 (6th Cir. 1987),
cert. denied, 484 U.S. 945 (1987)
Conner v. Greef, 99 Fed. Appx. 577, 2004 WL 898866 (6th Cir. 2004)
City of Milwaukee v. Saxbe, 546 F.2d 693 (7th Cir. 1976)
United States v. Faneca, 332 F.2d 872, 874 (5th Cir. 1964),
cert. denied, 380 U.S. 971 (1965).

IV. Plaintiff’s Fourteenth Amendment due process malicious prosecution claim fails
to allege that Plaintiff was prosecuted in the absence of probable cause
Hartman v. Moore, 547 U.S. 250 (2006)
Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001)
Fox v. DeSoto, 489 F.3d 227 (6th Cir. 2007)

iii

McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005)
Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669 (6th Cir. 2005)

V.

Plaintiff’s Fourteenth Amendment due process malicious prosecution claim is
barred by absolute prosecutorial immunity
Burns v. Reed, 500 U.S. 478 (1991)
Forrester v. White, 484 U.S. 219 (1988)
Higgason v. Stephens, 288 F.3d 868 (6th Cir.2002)
Howlett By and Through Howlett v. Rose, 496 U.S. 356 (1990)
Imbler v. Pachtman, 424 U.S. 409 (1976)
Loggins v. Franklin County, Ohio, 218 Fed. Appx. 466 (6th Cir. 2007)
Martinez v. State of Cal., 444 U.S. 277 (1980),
reh’g denied, 445 U.S. 920 (1980)
McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005),
cert. denied, 546 U.S. 1090 (2006)
Spurlock v. Thompson, 330 F.3d 791 (6th Cir. 2003)
Wrack v. City of Detroit, 2007 WL 2121995 (E.D. Mich. 2007)

iv

Facts
This matter arises from the first terrorist prosecution in the country after the
events of September 11, 2001. More particularly, this matter arises from Plaintiff Karim
Koubriti’s conviction in that prosecution for conspiracy to provide material support or
resources to terrorists, contrary to 18 U.S.C. §§ 371 and 2339A, and for conspiracy to
engage in fraud and misuse of visas, permits and other documents, contrary to 18 U.S.C.
§ 371. See United States v Karim Koubriti, E.D. Mich. Case No. 01-80778. Mr. Koubriti
is currently on pre-trial release status under the supervision of Pretrial Services and is
currently awaiting trial for conspiracy to commit mail fraud, contrary to 18 U.S.C. § 371,
under a Fourth Superseding Indictment issued in the continuation of the same prosecution
that is the subject of this action. Defendant Richard Convertino was the Assistant United
States Attorney who obtained Mr. Koubriti’s criminal conviction under the Third
Superseding Indictment in that action.
Mr. Koubriti filed the present action, alleging violations of constitutional rights
secured by the Fourth, Fifth, and Fourteenth Amendments. Although he currently faces
prosecution in the same criminal proceeding which forms the basis of this action, Mr.
Koubriti nevertheless maintains that he is entitled to $9 million dollars in damages as a
result of the federal government’s malicious prosecution of him. In support of his claims,
Mr. Koubriti alleges that the Defendants maliciously prosecuted him by intentionally
withholding “exculpatory evidence showing that [he] was not guilty of the terrorist
related charges,” “manufacturing evidence against [him], failing to turn over exculpatory
evidence and prosecuting him on terrorism related charges . . . .” Complaint and Jury
Demand, ¶¶ 16, 17, 23-24, 26-27, and 29-30. Mr. Koubriti’s Complaint and Jury

Demand should be dismissed where he has failed to state a cause of action upon which
relief can be granted as to Defendant Convertino.
Standard of Review
A motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) challenges the
legal sufficiency of the pleadings. “A complaint must contain either direct or inferential
allegations with respect to all material elements necessary to sustain a recovery under
some viable legal theory.” Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir.
2007) (citation omitted). “In considering whether to grant a defendant’s motion to
dismiss pursuant to Rule 12(b)(6) a district court must accept as true all the allegations
contained in the complaint and construe the complaint liberally in favor of the plaintiff.”
Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006). “[A] plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1964-65 (2007) (citations and
quotation marks omitted), Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007). The plaintiff’s “[f]actual 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.” 1 Twombly, 127 S. Ct. at 1964-65 (internal citation
and quotation marks omitted), Association of Cleveland Fire Fighters, 502 F.3d at 548.

1

In Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), the Supreme Court recently
disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which
held that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The
Twombly Court characterized that rule as one “best forgotten as an incomplete, negative gloss on an
accepted pleading standard.” Twombly, ___, U.S. at ___, 127 S. Ct. at 1969. See also Association of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007).

2

ARGUMENTS
I. PLAINTIFF’S MALICIOUS PROSECUTION CLAIM UNDER THE
FIFTH AMENDMENT DUE PROCESS CLAUSE SHOULD BE
DISMISSED WHERE SUCH CLAIMS REQUIRE THAT THE
ALLEGED DEPRIVATION OCCUR AS A RESULT OF FEDERAL
ACTION, YET LIABILITY UNDER 42 U.S.C. § 1983 REQUIRES
THAT THE ALLEGED DEPRIVATION OCCUR AS A RESULT
OF STATE ACTION.
Count II of Plaintiff’s Complaint and Jury Demand asserts a claim for malicious
prosecution under the Fifth Amendment. See Complaint and Jury Demand, p. 5, ¶¶2527. This claim fails to state a claim insofar as Fifth Amendment due process claims
require federal action, and section 1983 suits require state action.
The Fifth Amendment provides in pertinent part that “No person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
The Fourteenth Amendment analogue similarly provides that “[n]o state shall . . . deprive
any person of life, liberty, or property, without due process of law . . . .” U.S. Const.
Amend. XIV, § 1. The relevant distinction between these seemingly redundant
Amendments is that “[t]he Fourteenth Amendment’s Due Process Clause restricts the
activities of the states and their instrumentalities; whereas the Fifth Amendment’s Due
Process Clause circumscribes only the actions of the federal government.” Scott v. Clay
County, Tenn., 205 F.3d 867, 873 fn. 8 (6th Cir.) (citations omitted), cert. denied, 531
U.S. 874 (2000). See also Newsom v. Vanderbilt University, 653 F.2d 1100, 1113 (6th
Cir. 1981) (“The Fifth and Fourteenth Amendments apply to actions of the federal and
state governments respectively.”).
The paradox of Plaintiff’s Fifth Amendment claim is that it alleges a Fifth
Amendment due process violation, which requires that the deprivation be caused by

3

federal action, Bolling v. Sharp, 347 U.S. 497 (1954), in a 42 U.S.C. § 1983 action, which
requires that the deprivation be caused by state action, Flagg Bros. v. Brooks, 436 U.S.
149, 155-56 (1978). The color-of-state-law requirement of section 1983 actions is
tantamount to the state action required in order to establish a Fourteenth Amendment due
process claim. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 & fn. 8 (1999).
The naturally corollary is that federal action required in order to establish a Fifth
Amendment due process claim cannot satisfy the state law requirement of a section 1983
action.
The Sixth Circuit Court of Appeals held as much in Scott v. Clay County, Tenn.,
supra. In Scott, the plaintiff, like Mr. Koubriti, asserted claims under the Fourth, Fifth,
and Fourteenth Amendments. The Sixth Circuit held that in a section 1983 action the
plaintiff’s “citation to the Fifth Amendment Due Process Clause was a nullity . . .” Scott,
205 F.3d at 873 fn. 8. See also Myers v. Village of Alger, Ohio, 102 Fed. Appx. 931, 933
(6th Cir. 2004) (affirming lower court’s dismissal of Fifth Amendment claim in section
1983 action). Thus, when faced with section 1983 due process claims asserted under
both the Fifth and Fourteenth Amendments, federal courts in this circuit dismiss the Fifth
Amendment claims. See, e.g., Erdman v. Granholm, 2007 WL 757894, *6 fn. 4 (W.D.
Mich. 2007), Thompson v. Michigan Parole Bd., 2006 WL 3804892, *3 (E.D. Mich.
2006). Accordingly, Mr. Koubriti’s Fifth Amendment due process claim should be
dismissed due to his failure to state a claim upon which relief can be granted.

4

II. PLAINTIFF’S MALICIOUS PROSECUTION CLAIM UNDER THE
FOURTEENTH AMENDMENT DUE PROCESS CLAUSE
SHOULD BE DISMISSED WHERE NO SUCH CLAIM IS
COGNIZABLE IN A 42 U.S.C. § 1983 ACTION.
Count III of Plaintiff’s Complaint and Jury Demand asserts a claim for malicious
prosecution under the Fourteenth Amendment. See Complaint and Jury Demand, p. 5,
¶¶25-27. This claim should be dismissed because no such claim exists.
Section 1983 has two basic requirements: (1) state action that (2) deprived an
individual of federal statutory or constitutional rights. Flagg Bros., Inc. v. Brooks, 436
U.S. 149, 155-56 (1978), Flint ex rel. Flint v. Kentucky Dept. of Corrections, 270 F.3d
340, 351 (6th Cir. 2001). Section 1983 is not itself a source of substantive rights but,
rather, merely provides “‘a method for vindicating federal rights elsewhere conferred.’”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (citation omitted). Thus, “the first step in
any such claim is to identify the specific constitutional right allegedly infringed.”
Albright, 510 U.S. at 271 (citations omitted),
In Albright v. Oliver, supra, a plurality of the Supreme Court specifically declined
“to recognize a substantive right under the Due Process Clause of the Fourteen
Amendment to be free from criminal prosecution except upon probable cause.” Albright,
510 U.S. at 268. Upon rejecting substantive due process as a basis for section 1983
claims of malicious prosecution, the Court held that when a section 1983 claim implicates
the Fourth Amendment prohibition against unlawful seizures, the claim must be brought
under the Fourth Amendment. The Court explained that “[w]here a particular
Amendment ‘provides an explicit textual source of constitutional protection’ against a
particular sort of government behavior, ‘that Amendment, not the more generalized
notion of ‘substantive due process’ must be the guide for analyzing these claims.’”

5

Albright, 510 U.S. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
Consequently, a malicious prosecution claim brought under section 1983 must be brought
as a violation of the Fourth Amendment, not as a violation of due process under the
Fourteenth Amendment. 2
Here, a particular constitutional amendment provides an explicit textual source of
constitutional protection against Mr. Koubriti’s malicious prosecution claim, namely the
Fourth Amendment. In such circumstances, the Fourth Amendment, not the more thus,
generalized notion of substantive due process, is the guide for analyzing these claims.
Thus, Mr. Koubriti’s Fourteenth Amendment malicious prosecution claim is not
cognizable in a section 1983 action and, therefore, should be dismissed due for failure to
state a claim upon which relief can be granted.

III. PLAINTIFF’S FOURTH AMENDMENT MALICIOUS
PROSECUTION CLAIM SHOULD BE DISMISSED WHERE
PLAINTIFF HAS FAILED TO PLEAD THAT THE ALLEGED
DEPRIVATION OF CONSTITUTIONAL RIGHTS WAS THE
RESULT OF ACTION TAKEN UNDER COLOR OF STATE LAW.
The last claim remaining is that asserted in Count I of Mr. Koubriti’s Complaint
and Jury Demand, which alleges malicious prosecution under the Fourth Amendment.
See Complaint and Jury Demand, p. 5, ¶¶25-27. This claim should also be dismissed for
failure to state a claim because Mr. Koubriti has failed to allege that this alleged
constitutional deprivation was brought about by state action.
“Section 1983 creates a species of liability in favor of persons deprived of their
federal civil rights by those wielding state authority.” Felder v. Casey, 487 U.S. 131, 139

2

Although Albright v. Oliver, 510 U.S. 266, 271 (1994) was a plurality opinion, the Sixth Circuit has
subsequently adhered to its holding. See, e.g., Thacker v. City of Columbus, 328 F.3d 244, 258-59 (6th Cir.
2003) (discussing Sixth Circuit’s interpretation of Albright).

6

(1988) (emphasis supplied). Thus, a valid section 1983 claim has two basic
requirements: (1) state action that (2) deprived an individual of federal statutory or
constitutional rights. Flagg Bros., Inc, 436 U.S. at 155-56, Flint ex rel. Flint, 270 F.3d at
351. Mr. Koubriti alleges in his Complaint and Jury Demand that Defendant Convertino
at “all times relevant to this Complaint was employed as an Assistant United States
Attorney by the United States Department of Justice.” Complaint and Jury Demand, p. 2,
¶ 4. Mr. Koubriti further alleges that Defendant Convertino was acting under “color of
law” at all times relevant to his Complaint. Complaint and Jury Demand, p. 2, ¶ 4.
However, Mr. Koubriti has never alleged that Defendant Convertino acted under color of
state law as required by section 1983 nor can he reasonably make such allegations.
“The Department of Justice is an executive department of the United States at the
seat of Government.” 28 U.S.C. § 501. The President of the United States has the
authority to appoint, by and with the advice and consent of the Senate, an Attorney
General of the United States as head of the Department of Justice. 28 U.S.C. § 503. The
Attorney General or any other officer of the Department of Justice, or any attorney
specially appointed by the Attorney General under law,
may, when specifically directed by the Attorney General, conduct any
kind of legal proceeding, civil or criminal, including grand jury
proceedings and proceedings before committing magistrate judges, which
United States attorneys are authorized by law to conduct, whether or not
he is a resident of the district in which the proceeding is brought.
28 U.S.C. § 515(a).
Defendant Convertino, as an Assistant United States Attorney for the United
States Department of Justice, was at all times relevant to Mr. Koubriti’s Complaint and
Jury Demand an employee of the federal government acting according to federal, not

7

state, law. These are the facts as alleged by Mr. Koubriti, and no facts or evidence exists
to the contrary. In short, a section 1983 claim does not lie against a defendant who acts
under color of federal law. See, e.g., Ana Leon T. v. Federal Reserve Bank of Chicago,
823 F.2d 928, 931 (6th Cir. 1987), cert. denied, 484 U.S. 945 (1987), Conner v. Greef, 99
Fed. Appx. 577, 580, 2004 WL 898866, **2 (6th Cir. 2004). More specifically, a section
1983 claim does not lie against the United States Attorney General or his assistants. City
of Milwaukee v. Saxbe, 546 F.2d 693, 703 (7th Cir. 1976), United States v. Faneca, 332
F.2d 872, 874 (5th Cir. 1964), cert. denied, 380 U.S. 971 (1965). The Complaint and
Jury Demand fails to provide either direct or inferential allegations respecting this
material element. Tahfs, 316 F.3d at 590. Accordingly, Mr. Koubriti’s Fourth
Amendment malicious prosecution claim should be dismissed for failure to state a claim
upon which relief can be granted.

IV. PLAINTIFF’S FOURTH AMENDMENT MALICIOUS
PROSECUTION CLAIM SHOULD BE DISMISSED WHERE
PLAINTIFF HAS FAILED TO PLEAD THAT HE WAS
PROSECUTED IN THE ABSENCE OF PROBABLE CAUSE.
In support of his Fourth Amendment Malicious Prosecution Claim, Mr. Koubriti
alleges in his Complaint and Jury Demand that Defendant Convertino maliciously
prosecuted him by conspiring “to manufacture evidence against [him] to be used at his
trial,” intentionally withholding “exculpatory evidence showing that [he] was not guilty
of the terrorist related charges,” and “manufacturing evidence against [him], failing to
turn over exculpatory evidence and prosecuting him on terrorism related charges . . . .”
Complaint and Jury Demand, ¶¶ 16, 17, 23-24, 26-27, and 29-30. According to the
Complaint and Jury Demand, these actions by Defendant Convertino allegedly caused

8

Mr. Koubriti to be “wrongfully convicted of criminal charges and . . . illegally incarcerated
for nearly three years.” Id. Conspicuously absent from Mr. Koubriti’s Complaint and Jury

Demand is any mention that the prosecution was pursued despite an absence of probable
cause.
“[The Sixth Circuit] has recognized a section 1983 claim for malicious
prosecution arising under the Fourth Amendment, but the contours of such a claim
remain uncertain.” Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007) (citations omitted).
“What is certain, however, is that such a claim fails when there was probable cause to
prosecute, or when the defendant did not make, influence, or participate in the decision to
prosecute.” Id. (citations omitted). See also Voyticky v. Village of Timberlake, Ohio, 412
F.3d 669, 675 (6th Cir. 2005) (“In order to prove malicious prosecution under federal
law, a plaintiff must show, at a minimum, that there is no probable cause to justify an
arrest or a prosecution.”). Thus, where a plaintiff alleges that he was prosecuted in
violation of his constitutional rights, an absence of probable cause must be both pleaded
and proven. Hartman v. Moore, 547 U.S. 250, 265 (2006)
This pleading deficiency is particularly crucial in the instant case. To be sure, his
Complaint and Jury Demand alleges that Mr. Koubriti was subject to a malicious
prosecution because Defendant Convertino either fabricated false evidence against him or
withheld evidence that had potentially exculpating value. However, Mr. Koubriti does
not allege that his prosecution was pursued despite a lack of probable cause. This fact is
crucial because if probable cause to prosecute existed, then Mr. Koubriti cannot make out
a malicious prosecution claim under the Fourth Amendment, regardless of any alleged
false statements made by Defendant Convertino. Darrah v. City of Oak Park, 255 F.3d

9

301, 312 (6th Cir. 2001). That is, allegations that false evidence was used to advance the
prosecution of a criminal defendant, standing alone, are insufficient to state a Fourth
Amendment malicious prosecution claim because probable cause can exist independent
of allegedly false evidence. Darrah, 255 F.3d at 312. See also McKinley v. City of
Mansfield, 404 F.3d 418, 444-445 (6th Cir. 2005).
Taking all of the allegations in the Complaint and Jury Demand as true and
assuming that Defendant Convertino manufactured inculpating evidence and withheld
exculpating evidence, Mr. Koubriti has nonetheless failed to state a valid Fourth
Amendment malicious prosecution claim because he failed to allege that Defendant
Convertino pursued the prosecution in the absence of probable cause. The Complaint and
Jury Demand fails to provide either direct or inferential allegations with respect to this
material element. Tahfs, 316 F.3d at 590. Accordingly, it should be dismissed for failure
to state a claim upon which relief can be granted.

V.

PLAINTIFF’S MALICIOUS PROSECUTION CLAIM UNDER THE
FOURTH AMENDMENT SHOULD BE DISMISSED WHERE
PLAINTIFF IS ABSOLUTELY IMMUNE FROM SUIT FOR
FUNCTIONS PERFORMED IN HIS CAPACITY AS AN
ASSISTANT UNITED STATES ATTORNEY GENERAL.
Even assuming, arguendo, that Mr. Koubriti had pleaded valid section 1983

Fourth Amendment malicious prosecution claim – which he has not – Mr. Koubriti’s
allegations still fail to state a claim upon which relief can be granted because Defendant
Convertino is clearly entitled to absolute prosecutorial immunity. In an effort to
circumvent this inescapable conclusion, Mr. Koubriti alleges that Defendants are not
entitled to the defense of “governmental immunity” because (1) they “were not acting in
the furtherance of any legitimate governmental function,” Complaint and Jury Demand,

10

p. 2, ¶ 7; (2) their “illegal and unconstitutional actions were intentional torts,” id.; and (3)
they “were violating Plaintiffs constitutional rights and their actions were clearly
unreasonable,” Complaint and Jury Demand, p. 2, ¶ 8. Mr. Koubriti further alleges that
Defendant Convertino “was acting in an investigative role and not the role of a
prosecutor.” Complaint and Jury Demand, p. 4, ¶ 19. All of these arguments are
insufficient to divest Defendant Convertino of his absolute immunity from section 1983
liability.
A.

Not in Furtherance of Any Legitimate Governmental Function

Mr. Koubriti first argues that Defendant Convertino is not entitled to immunity
because he was “not acting in the furtherance of any legitimate governmental function . . .
.” Complaint and Jury Demand, p. 2, ¶ 7. This argument is an apparent reference to
Michigan’s governmental immunity, which provides that officers and employees of
governmental agencies are immune from tort liability while in the course of employment
if, inter alia, they were acting or reasonably believed that they were acting within the
scope of their authority and “[t]he governmental agency is engaged in the exercise or
discharge of a governmental function.” M.C.L. 691.1407(2) (a). However, defenses to
section 1983 actions are questions of federal law, Howlett By and Through Howlett v.
Rose, 496 U.S. 356, 376-77 (1990), and as such, the availability of immunity in a section
1983 suit is also a question of federal law. Id. See also Martinez v. State of Cal., 444
U.S. 277, 284 & fn. 8 (1980), reh’g denied, 445 U.S. 920 (1980), Loggins v. Franklin
County, Ohio, 218 Fed. Appx. 466, 476 (6th Cir. 2007). Thus, Mr. Koubriti’s reliance on
Michigan’s governmental immunity is misplaced and fails to divest Defendant
Convertino of his absolute immunity under federal law from section 1983 liability.

11

B.

Intentional Torts

Similarly, Mr. Koubriti further argues that Defendant Convertino is not entitled to
immunity because his “illegal and unconstitutional actions were intentional torts.”
Complaint and Jury Demand, p. 2, ¶ 7. Under Michigan law, governmental immunity is
unavailable as a defense against allegations of intentional torts in certain circumstances
because intentional torts are not considered to be the within exercise or discharge of a
legitimate governmental function. Bauss v. Plymouth Tp., 408 F. Supp. 2d 363, 369
(E.D. Mich. 2005). Again, however, this is a federal section 1983 action governed by
federal law, not state tort concepts, and Michigan’s corpus of governmental immunity
law has no applicability whatsoever in this action. Rose, 496 U.S. at 376-77, Martinez,
444 U.S. at 284 & fn. 8, and Loggins, 218 Fed. Appx. at 476. As Judge Cleland recently
noted:
Immunity under [Michigan] state law is remarkably different, as it applies
a subjective standard of review to the official’s actions. Unlike federal
qualified immunity, officers facing claims of intentional torts “are not
shielded by [Michigan’s] governmental immunity statute.” Unlike the
immunity applicable to section 1983 claims, immunity from state torts
under Michigan law depends upon an officer’s subjective intent at the time
of the alleged assault.
Wrack v. City of Detroit, 2007 WL 2121995 *4 (E.D. Mich. 2007) (citation omitted;
emphasis added).
Again, Mr. Koubriti’s attempt to divest Defendant Convertino of his absolute
immunity from section 1983 liability based upon Michigan’s governmental immunity
fails.

12

C.

Violation of Constitutional Rights / Clearly Unreasonable Actions
Mr. Koubriti next argues that Defendant Convertino is not entitled to immunity

because his actions “violat[ed] Plaintiffs constitutional rights and . . . were clearly
unreasonable.” Complaint and Jury Demand, p. 2, ¶ 8. This again appears to be a
reference to Michigan governmental immunity, which subjects state or governmental
entities to liability under Michigan law “[w]here it is alleged that the state, by virtue of
custom or policy, has violated a right conferred by the Michigan Constitution,
governmental immunity is not available in a state court action.” Smith v. Department of
Public Health, 410 N.W.2d 749, 751 (Mich. 1987), affirmed sub nom., Will v. Michigan
Dept. of State Police, 491 U.S. 58 (1989). There is no analogous counterpart under
federal law which subjects actors, otherwise entitled to immunity from section 1983
liability for their constitutional torts, to liability merely because their conduct violates the
constitution. Indeed, if this were the current state of federal immunity law, the entire
body of law pertaining to absolute and qualified immunities in section 1983 actions
would be rendered a nullity as such claims typically entail a violation of the federal
constitution. In short, Mr. Koubriti’s misplaced reliance upon Michigan’s governmental
immunity law again fails to subject to Defendant Convertino to section 1983 liability. 3
D.

Acting in Administrative Capacity

Lastly, Mr. Koubriti argues that Defendant Convertino “was acting in an
investigative role and not the role of a prosecutor.” Complaint and Jury Demand, p. 4, ¶
19. Although this exception to absolute prosecutorial immunity is recognized under
federal law, it is wholly inapplicable in this instance.

3

Parenthetically, neither federal nor state law rescinds a government employee’s entitlement to immunity
based on the grounds that his or her conduct was “clearly unreasonable.”

13

Section 1983 is to be read “in harmony with general principles of tort immunities
and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418
(1976). When determining whether particular actions of government officials fit within a
common-law tradition of absolute immunity, courts apply a “functional approach,” Burns
v. Reed, 500 U.S. 478, 486 (1991), which looks to “the nature of the function performed,
not the identity of the actor who performed it.” Forrester v. White, 484 U.S. 219, 229
(1988), Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002). Functions that form an
“integral part of the judicial process” or are otherwise “intimately associated with the
judicial phase of the criminal process” are absolutely immunity from suit. Imbler, 424
U.S. at 430. As described by the Imbler Court:
A prosecuting attorney is required constantly, in the course of his duty as
such, to make decisions on a wide variety of sensitive issues. These
include questions of whether to present a case to a grand jury, whether to
file an information, whether and when to prosecute, whether to dismiss an
indictment against particular defendants, which witnesses to call, and
what other evidence to present. Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.
Imbler, 424 U.S. at 431 fn. 33 (emphasis added).
Because the following conduct occurs in a prosecutor’s role as an advocate, it is
absolutely immune from section 1983 liability: malicious prosecution, Spurlock v.
Thompson, 330 F.3d 791, 797 (6th Cir. 2003) (citing Burns, 500 U.S. 478, 485 n. 4);
appearances at probable cause and grand jury hearings, Spurlock, 330 F.3d at 797 (citing
Burns, 500 U.S. 478, 487, n. 8); professional evaluation of the evidence assembled by the
police, and appropriate presentation of that evidence at trial or before the grand jury,
Spurlock, 330 F.3d at 797 (citing Buckley, 509 U.S. 259, 273); preparation of witnesses
for trial, Spurlock, 330 F.3d at 797 (citing Higgason v. Stephens, 288 F.3d 868, 878 (6th

14

Cir.2002)); and knowing presentation of false testimony at trial, Spurlock, 330 F.3d at
797 (citing Imbler, 424 U.S. at 413, 430, Buckley, 509 U.S. at 267 n. 3).
If, however, a prosecutor’s actions are considered “investigatory or
administrative” in nature, then he or she is entitled only to qualified immunity. Buckley
v. Fitzsimmons, 509 U.S. 259, 269 (1993). “The analytical key to prosecutorial
immunity, therefore, is advocacy – whether the actions in question are those of an
advocate.” Holloway, 220 F.3d at 775. Thus, the “critical inquiry is how closely related
is the prosecutor’s challenged activity to his role as an advocate intimately associated
with the judicial phase of the criminal process.” Id.
This Court need look no further that the seminal Imbler decision in order to
dispose of Mr. Koubriti’s claims. In Imbler, the plaintiff, like Mr. Koubriti, brought a
section 1983 action, alleging “that the prosecution had knowingly used false testimony
and suppressed material evidence at Imbler’s trial.” Imbler, 424 U.S. at 413.
Notwithstanding the allegations, the Supreme Court held that prosecutorial officials are
absolutely immune from “suits for malicious prosecution and for defamation, and that
this immunity extend[s] to the knowing use of false testimony before the grand jury
and at trial.” 4 Burns v. Reed, 500 U.S. 478, 484 (1991) (citing Imbler, 424 U.S. at 421424, 426, and n. 23) (emphasis added). The Imbler Court minced no words regarding the
consequences of its decision: “To be sure, this immunity does leave the genuinely
wronged defendant without civil redress against a prosecutor whose malicious or
dishonest action deprives him of liberty.” Imbler, 424 U.S. at 413. Sixth Circuit
4

Mr. Koubriti’s claim that Defendant Convertino manufactured evidence is redundant vis-à-vis his claim
that Defendant Convertino suppressed favorable evidence because, for purposes of prosecutorial immunity,
there is no difference between the willful use of perjured testimony (i.e., manufactured evidence) and the
willful suppression of exculpatory information. Imbler v. Pachtman, 424 U.S. 409, 431 fn. 34 (1976).
Both acts are immune. Id.

15

precedent likewise adheres to the same principle and protects prosecuting officials with
absolute prosecutorial immunity “even when it is alleged that a prosecutor knowingly
presented false evidence against the plaintiff at trial.” McKinley v. City of Mansfield, 404
F.3d 418, 438 (6th Cir. 2005), cert. denied, 546 U.S. 1090 (2006). See also Spurlock,
330 F.3d. at 797, 798 (“[E]ven the knowing presentation of false testimony at trial is
protected by absolute immunity.”), Ireland v. Tunis, 113 F.3d 1435, 1445 (6th Cir. 1997)
(“A prosecutor was therefore absolutely immune from suit for soliciting false testimony
from witnesses . . . .”), cert. denied 522 U.S. 996 (1997).
Even assuming, arguendo, that Defendant Convertino was acting in an
investigative role and not the role of a prosecutor – which he was not – the facts pleaded
in the Complaint and Jury Demand still fail to state a claim as they do not articulate any
facts in support of this conclusion. On one hand, Mr. Koubriti alleges that Defendant
Convertino was acting in an investigative role and not in the role of a prosecutor, yet on
the other hand, the only allegations that support this claim are Mr. Koubriti’s bald
conclusions that Defendant Convertino manufactured evidence, intentionally withholding
exculpatory evidence, and failed to turn over exculpatory evidence. “It is plain that,
although liberal, the [Rule 12(b)(6) pleading] standard does require that a plaintiff plead
more than bare legal conclusions.” 5 Lillard v. Shelby County Bd. of Educ., 76 F.3d 716,

5

See, e.g., Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007)
(“[C]onspiracy claims must be pled with some degree of specificity and . . . vague and conclusory
allegations unsupported by material facts will not be sufficient to state such a claim”), Tahfs v. Proctor, 316
F.3d 584, 590 (6th Cir. 2003) (“[T]he complaint must contain ‘either direct or inferential allegations
respecting all the material elements’ and the allegations must constitute ‘more than bare assertions of legal
conclusions.’”), Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (“This court has
held, in the context of a civil rights claim, that conclusory allegations of unconstitutional conduct without
specific factual allegations fail to state a claim under section 1983.”) (citation omitted), Gutierrez v. Lynch,
826 F.2d 1534, 1538-1539 (6th Cir. 1987) (“It is well-settled that conspiracy claims must be pled with
some degree of specificity and that vague and conclusory allegations unsupported by material facts will not
be sufficient to state such a claim under section 1983.”), Ana Leon T. v. Federal Reserve Bank, 823 F.2d

16

726 (6th Cir. 1996). Notwithstanding Mr. Koubriti’s conclusory statements, which are at
ironic odds with the few facts that are well-pleaded, there simply are no facts in the
Complaint and Jury Demand from which this Court can infer that Defendant Convertino
acted in an investigative or administrative capacity during the times alleged in the
Complaint and Jury Demand. When ruling upon a 12(b)(6) motion, a court need not
accept as true legal conclusions or unwarranted factual inferences, Kottmyer, 436 F.3d at
688, conclusory allegations of unspecified conduct, Lillard, 76 F.3d at 726, or vague
assertions. Id. Accordingly, Mr. Koubriti’s Fourth Amendment malicious prosecution
claim should be dismissed because Defendant Convertino enjoys absolutely prosecutorial
immunity for the conduct alleged in the Complaint and Jury Demand undertaken by
Defendant Convertino in his capacity as a federal Assistant United States Attorney.

928, 930 (6th Cir.) (“[T]he allegations must be more than mere conclusions, or they will not be sufficient to
state a civil rights claim.”), cert. denied, 484 U.S. 945 (1987), Chapman v. City of Detroit, 808 F.2d 459,
465 (6th Cir. 1986) (“It is not enough for a complaint . . . to contain mere conclusory allegations of
unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims
must be set forth in the pleadings.”), Smith v. Rose, 760 F.2d 102, 106 (6th Cir. 1985) (“The conclusory
statement in the complaint that plaintiff ‘feels’ that his property was disposed of through spite and
conspiracy is not supported by factual statements and is not sufficient to state a claim for relief under 42
U.S.C. § 1983.”), Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984) (conspiracy claim properly dismissed
where “complaint merely alleged broad conclusory negligence language void of the factual allegations
necessary to support a conspiracy theory”).

17

RELIEF
WHEREFORE, Defendant Richard Convertino respectfully requests this
Honorable Court to enter an Order dismissing this action for failure to state a claim upon
which relief can be granted and granting other relief to which it may appear that he is
entitled.

Respectfully submitted,

Dated: December 7, 2007

s/Robert S. Mullen
___________________________________
Robert S. Mullen
Attorney for Defendant Richard Convertino
Progressive Legal Services
800 Starkweather Street
Plymouth, MI 48170
[phone]
[e-mail]
Bar Number: P54827

18

CERTIFICATE OF SERVICE
I hereby certify that on December 7, 2007, I electronically filed the foregoing
Defendant Richard Convertino’s Motion to Dismiss for Failure to State a Claim, Brief in
Support of Defendant Richard Convertino’s Motion to Dismiss for Failure to State a
Claim, and this Certificate of Service with the Clerk of the Court using the ECF system
which will send notification of such filing to the following:
Ben M. Gonek ([e-mail])
Thomas W. Cranmer ([e-mail])
Matthew F. Leitman ([e-mail])
Gerald J. Gleeson, II ([e-mail])
David D. O’Brien ([e-mail])
and I hereby certify that I have mailed by United States Postal Service the paper to the
following non-ECF participants:
Michael Thomas
Federal Bureau of Investigation
477 Michigan Avenue, 26th Floor
Detroit, MI 48226

Respectfully submitted,

s/W. Shane Mackey
___________________________________
W. Shane Mackey
Progressive Legal Services
800 Starkweather Street
Plymouth, MI 48170
[phone]
[e-mail]
Dated: December 7, 2007