Koubriti v. Convertino et al

Filing 25

RESPONSE to 10 MOTION to Dismiss for Failure to State a Claim; Brief in Support of Defendant Harry Raymond Smith's Motion to Dismiss for Failure to State a Claim filed by Karim Koubriti. (Attachments: # 1 Exhibit A - Government's Consolidated Response) (Gonek, Ben)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,
v

Case No: 07-13678
Hon. MARIANNE O. BATTANI

RICHARD CONVERTINO,
MICHAEL THOMAS and
HARRY RAYMOND SMITH,
Jointly and Severally
and in their Individual Capacities,
Defendants.
_____________________________________________________________________________/
BEN M. GONEK (P43716)
THOMAS W. KRAMER (P25252)
BEN M. GONEK, P.C.
MATTHEW F. LEITMAN (P48999)
Attorney for Plaintiff
GERALD J. GLEESON, II (P53568)
615 Griswold Street
DAVID D. O’BRIEN (P65532)
1300 Ford Building
Miller, Canfield, Paddock & Stone, PLC
Detroit, Michigan 48226
Attorneys for Defendant Harry R. Smith
[phone]
840 W. Long Lake Road, Suite 200
Troy, Michigan 48098
ROBERT S. MULLEN (P54827)
[phone]
Attorney for Defendant Convertino
800 Starkweather Street
RICHARD L. SWICK
Plymouth, Michigan 48170
Attorney for Michael Thomas
[phone]
1225 Eye Street, NW, Suite 1290
Washington, D.C. 20005
[phone]
_____________________________________________________________________________/
PLAINTIFF KARIM KOUBRITI’S RESPONSE TO DEFENDANT
HARRY RAYMOND SMITH’S MOTION TO DISMISS
NOW COMES the Plaintiff, KARIM KOUBRITI, by and through his attorney, BEN M.
GONEK, and in response to Defendant Harry Raymond Smith’s Motion to Dismiss states as
follows:

1.

Plaintiff admits the allegations contained in paragraph one of Defendant Harry

Raymond Smith’s Motion to Dismiss.
2.

Plaintiff admits the allegations contained in paragraph two of Defendant Harry

Raymond Smith’s Motion to Dismiss. However, Plaintiff should be allowed to proceed with his
Fourth and Fourteenth Amendment claims for the reasons set forth in Plaintiff’s Motion for
Leave to File a First Amended Complaint.
3.

Plaintiff denies the allegation contained in paragraph three of Defendant Harry

Raymond Smith’s Motion to Dismiss for the reason they are unture. Plaintiff would further state
that the proposed First Amended Complaint adequately sets forth causes of action for a violation
of the Fourth Amendment for the malicious prosecution of Karim Koubriti for terrorist related
offenses and for the Fourteenth Amendment for the fabrication of evidence and the failure to
provide exculpatory evidence to the Plaintiff through Defendant Convertino while his criminal
charges were pending.
4.

Plaintiff admits the allegations contained in paragraph four of Defendant Harry

Raymond Smith’s Motion to Dismiss and will not be proceeding with a conspiracy count at this
time.
5.

This paragraph does not require a response.

6.

Plaintiff admits the allegations contained in paragraph six of Defendant Harry

Raymond Smith’s Motion to Dismiss. Plaintiff would further reserve the right to supplement
this pleading in the event the Court grants Plaintiff’s motion to hold this motion in abeyance
until Judge Tarnow rules on Plaintiff’s Motion to Unseal Record and Transcript.

2

WHEREFORE, Plaintiff Karim Koubriti respectfully requests that this Honorable Court
deny Defendant Harry Raymond Smith’s Motion to Dismiss for the reasons stated above and in
the accompanying brief.
Respectfully submitted,

s/ Ben M. Gonek
BEN M. GONEK (P43716)
Attorney for Plaintiff
1300 Ford Building
615 Griswold
Detroit, Michigan 48226
[phone]
[e-mail]
Dated: January 28, 2008

3

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,
v

Case No: 07-13678
Hon. MARIANNE O. BATTANI

RICHARD CONVERTINO,
MICHAEL THOMAS and
HARRY RAYMOND SMITH,
Jointly and Severally
and in their Individual Capacities,
Defendants.
_____________________________________________________________________________/
BEN M. GONEK (P43716)
THOMAS W. KRAMER (P25252)
BEN M. GONEK, P.C.
MATTHEW F. LEITMAN (P48999)
Attorney for Plaintiff
GERALD J. GLEESON, II (P53568)
615 Griswold Street
DAVID D. O’BRIEN (P65532)
1300 Ford Building
Miller, Canfield, Paddock & Stone, PLC
Detroit, Michigan 48226
Attorneys for Defendant Harry R. Smith
[phone]
840 W. Long Lake Road, Suite 200
Troy, Michigan 48098
ROBERT S. MULLEN (P54827)
[phone]
Attorney for Defendant Convertino
800 Starkweather Street
RICHARD L. SWICK
Plymouth, Michigan 48170
Attorney for Michael Thomas
[phone]
1225 Eye Street, NW, Suite 1290
Washington, D.C. 20005
[phone]
_____________________________________________________________________________/
BRIEF IN SUPPORT OF
PLAINTIFF KARIM KOUBRITI’S RESPONSE TO DEFENDANT
HARRY RAYMOND SMITH’S MOTION TO DISMISS

TABLE OF CONTENTS

Index of Authorities.......................................................................................................................iii
Statement of Questions Presented..................................................................................................iv
Introduction......................................................................................................................................1
Arguments........................................................................................................................................1
Defendant Smith’s Argument that Plaintiff’s 1983 Claims
Is Moot ................................................................................................................................1
Defendant Smith’s Argument that Plaintiff’s Fourth and Fourteenth
Amendment Claims Must be Dismissed are Without Merit................................................1
Defendant Smith’s Argument that Plaintiff’s 42 USC 1983 Claim
Is Moot.................................................................................................................................2
Conclusion.......................................................................................................................................2

ii

INDEX OF AUTHORITIES
Stemler v City of Florence, 126 F.3d 856, 872 (6th Cir. 1997)........................................................2

iii

STATEMENT OF QUESTIONS PRESENTED
I.

Should this Court dismiss Plaintiff Karim Koubriti’s claims under 42 USC 1983
where he complains only of the conduct of federal officials and fails to allege state
action, a necessary element of such claims?
Defendant Smith says:
Plaintiff Koubriti says:

II.

YES
YES

Should this Court dismiss Plaintiff Karim Koubriti’s claims for malicious prosecution
under the Fourth, Fifth and Fourteenth Amendments where he complains only of
post-arrest conduct and has failed to challenge the existence of probable cause at the
time of his arrest, a necessary element of such claims?
Defendant Smith says:
Plaintiff Koubriti says:

III.

YES
NO

Should this Court dismiss Plaintiff Karim Koubriti’s claims under 42 USC 1985
where he failed to allege a qualifying conspiracy to obstruct justice?
Defendant Smith says:

YES

Plaintiff Koubriti says:

YES

iv

INTRODUCTION
Plaintiff Karim Koubriti initially filed a three count Complaint against the named
Defendants asserting causes of actions under the Fourth, Fifth and Fourteenth Amendments as
well as 42 USC 1983. The complaint stemmed from misconduct by the Defendants in the case
of United States v Karim Koubriti, United States District Court Case No. 01-80778.1

Defendant

Smith has filed a Motion to Dismiss pursuant to Federal Civil Rules of Procedure 12(b)(6).
Plaintiff has filed a Motion to Amend his Complaint. (See Docket Entry 24). Defendant Harry
Raymond Smith’s Motion to Dismiss should be denied because any deficiency in the pleadings
are cured by Plaintiff’s Proposed First Amended Complaint.

ARGUMENT I
Defendant Smith’s Argument that Plaintiff’s 1983 Claims
Must be Dismissed Are Moot Because Plaintiff is
Abandoning Those Claims
Plaintiff agrees to withdraw his claims pursuant to 42 USC 1983.

(See Plaintiff’s

Proposed First Amended Complaint).
ARGUMENT II
Defendant Smith’s Argument that Plaintiff’s Fourth and
Fourteenth Amendment Claims Must be Dismissed are
Without Merit2
Defendant Smith argues that his claims must be dismissed because Plaintiff has not

1

Mr. Koubriti was initially convicted of the charged offenses. His convictions were
reversed when the Government concurred in his Motion for a New Trial. (See Exhibit A).
2

Plaintiff Karim Koubriti is abandoning his Fifth Amendment claim.
1

alleged that there was not probable cause to arrest him. Plaintiff submits this claim is without
merit because Plaintiff was under no obligation to allege such. Notwithstanding that fact, in
Plaintiff’s Proposed First Amended Complaint, Plaintiff has alleged that there was not probable
cause to arrest or prosecute him.
In Plaintiff’s Proposed First Amended Complaint, Plaintiff has stated a Fourteenth
Amendment violation for Defendant’s fabrication of evidence and for his failure to turn over
exculpatory evidence to the Plaintiff through Defendant Convertino. For such a claim, probable
cause is irrelevant. Stemler v City of Florence, 126 F.3d 856, 872 (6th Cir. 1997).
ARGUMENT III
Defendant Smith’s Argument that Plaintiff’s 42 USC
1983 Claim Must Be Dismissed is Moot.
Plaintiff has filed a Motion to File a First Amended Complaint. (See Docket Entry

).

In that Complaint, Plaintiff abandons his 42 USC 1983 claim.
CONCLUSION
WHEREFORE, for the above stated reasons, Plaintiff Karim Koubriti respectfully
requests that this Honorable Court deny Defendant Harry Raymond Smith’s Motion to Dismiss.
Respectfully submitted,

s/ Ben M. Gonek
BEN M. GONEK (P43716)
Attorney for Plaintiff
1300 Ford Building
615 Griswold
Detroit, Michigan 48226
[phone]
[e-mail]
Dated: January 28, 2008

2

CERTIFICATE OF SERVICE
BEN M. GONEK hereby states that on the 28th day of January 2008, he caused the
foregoing Response to Defendant Harry Raymond Smith’s Motion to Dismiss to be filed
electronically with the United States District Court and that copies of said response were
forwarded to all counsel of record using the ECF system.
s/ Ben M. Gonek
BEN M. GONEK (P43716)

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