Koubriti v. Convertino et al

Filing 68

REPLY to Response re 63 MOTION to Dismiss or, Alternatively, for Summary Judgment filed by Michael Thomas. (Swick, Richard)

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

Case No. 2:07-cv-13678

v.
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)
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

Richard L. Swick
Swick & Shapiro, P.C.
1101 15 th Street, N.W., Ste 550
Washington, D.C. 20005
[phone]
Attorney for
Defendant Michael Thomas

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

________________________________________________________________________

DEFENDANT MICHAEL THOMAS’ REPLY TO PLAINTIFF’S OPPOSITION
TO HIS MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY
JUDGMENT
Defendant Thomas’ pending motion shows plaintiff’s Bivens claims against him
should be dismissed because the specific actions or admissions attributed to Thomas
(even if true) do not establish that Thomas violated a clearly established constitutional
right, and thus they do not defeat the qualified immunity granted to him as an FBI Agent.
In addition, plaintiff’s complaint should be dismissed because the undisputed record
establishes that at all times Thomas was acting in his official capacity as an FBI Agent
and that he did nothing to violate plaintiff’s clearly established statutory or constitutional
rights. Therefore, qualified immunity applies to shield Thomas from liability.
Plaintiff’s opposition brief does not address the legal ramifications of the Court of
Appeals’ decision in Koubriti v. Convertino, 593 F.3d 459 (6th Cir. 2010), or the
evidence and record before the court. Instead, plaintiff responds by merely reciting the
conclusory allegation that Thomas violated his Fifth Amendment Rights by maliciously
and intentionally withholding exculpatory evidence and fabricating evidence. Plaintiff
proffers no evidence that Thomas committed these acts. In fact, plaintiff does not even
identify the “fabricated evidence” or the “exculpatory evidence” withheld. As such, based
upon the undisputed evidence, this Court should determine that as an FBI Agent Thomas
is shielded from liability based upon his qualified immunity, and therefore the action
against him should be dismissed.

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ARGUMENT
I.

The Sixth Circuit’s Ruling Establishes That the Wrongs Attributed to
Thomas Did Not Violate Clearly Established Statutory or Constitutional
Rights.
As noted by the Court of Appeals, Koubriti’s complaint alleges that defendants

Convertino, Smith1 and Thomas violated his Fifth Amendment Rights by “maliciously
and intentionally withholding exculpatory evidence and fabricating evidence.” Koubriti,
593 F.3d at 464. In addressing the issue of “qualified immunity” regarding Convertino’s
actions in the investigation of plaintiff, the Court of Appeals held that “Convertino’s
behavior, were it to be ruled as a constitutional violation, was not clearly established as a
violation at the time Convertino acted. Convertino’s qualified immunity, then, would still
be sufficient to shield Convertino from this claim, even when characterized in the way the
district court and Koubriti suggest.” Id. at 472.
Having failed in his attempt to frame a Constitutional violation against Convertino
for a Brady violation by withholding information that he received or should have received
from Thomas, plaintiff now pursues Thomas for failing to turn evidence over to
Convertino. However, the legal ruling by the Court of Appeals that Convertino’s alleged
failures do not involve to a violation of a clearly established constitutional right equally
applies when the same acts are attributed to Thomas. Defendant has provided no

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For reasons which have never been explained, plaintiff has dismissed his claims against
defendant Smith. See Docket Entry 33. As result, Defendant Thomas who is the only defendant
not to have been criminally charged in connection with the prosecution of plaintiff is the only
remaining defendant regarding plaintiff’s claims.
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principled reason why as a party to the Convertino appeal, where plaintiff was able to
fully litigate these issues, he should not now be bound by the Court of Appeals’ holding
regarding qualified immunity. See Cobbins v. Tenn. Dep’t of Transp., 566 F.3d 582, 589 (6th
Cir. 2009) (“Issue preclusion, or collateral estoppel, bars subsequent relitigation of a fact or issue
where that fact or issue was necessarily adjudicated in a prior cause of action and the same fact or
issue is presented in a subsequent suit.”)
Moreover, the Court of Appeals decision also establishes that legally, the sort of
Brady violations that plaintiff alleges in this lawsuit are not sufficient to defeat the
qualified immunity granted to federal law enforcement officials such as Thomas.
Plaintiff’s opposition brief scarcely argues the Brady issue at all.
For these reasons, plaintiff’s claims against Thomas should be dismissed as legally
insufficient to defeat Thomas’s immunity as an FBI Agent.
II.

There is No Evidence that Thomas Violated Plaintiff’s Clearly Established
Statutory or Constitutional Rights.
To withstand summary judgment, the non-movant must present sufficient evidence

to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342
(6th Cir. 1990). A mere scintilla of evidence is insufficient; “there must be evidence on
which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). Entry of summary judgment is appropriate “against a
party who fails to make a showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear the burden of proof at
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trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Qualified immunity is an affirmative defense that shields government officials
“from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). Therefore, in
order to withstand a motion for summary judgment based on the defense of qualified
immunity, the plaintiff must produce evidence that the government official “violated a
clearly established statutory or constitutional right.” Id.
Here, plaintiff alleges that Thomas violated his constitutional rights by fabricating
and withholding evidence. However, plaintiff has proffered not even scintilla of evidence
to support these allegations. To the contrary, the undisputed evidence establishes that
Thomas did not do any of the things that of which plaintiff now accuses him.
In his amended complaint, at paragraph 29, plaintiff has alleges that Agent Thomas
violated his constitutional rights by willfully and intentionally withholding exculpatory
evidence or fabricating evidence in the following manner:
A.

“By failing to turn over photographs he received of the Queen Alia Hospital
to Defendant Convertino.”

B.

“Failing to disclose e-mails to Defendant Convertino.”

C.

“Failing to disclose to Defendant Convertino that Nassa Ahmad told him
his mentally unstable brother might have been doodling in the day planner
in question.”

D.

“Failing to disclose to Defendant Convertino that Air Force OS1 SA
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Goodnight stated that the alleged sketch of the 1ncirlik Air Base was not
accurate.”
E.

“Failing to disclose the names of witnesses who could testify that the
sketches did not represent the Incirlik Air Base.”

F.

“Failing to disclose a 9/11/2007 e-mail where Defendant Thomas admitted
that there was difficulty transcribing the audio portions of the videotape due
to among other things, the Tuniusei or Algeria dialect speech.”

G.

“Failing to record by way 302, the contents of the ten interviews with
Yousif Hnimssa.”

H.

“Failing to disclose to Defendant Convertino that Yousif Hnimssa made
many different statements.”

Those items (A) through (H) are allegations only. Allegations in a plaintiff’s complaint –
standing alone – are not evidence that can defeat summary judgment. The Sixth Circuit,
in Alexander v. CareSource, 576 F.3d 551(6th Cir. 2009), recently reiterated the wellknown requirements for opposing a motion for summary judgment:
•

“Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment
opponent to make [his] case with a showing of facts that can be established
by evidence that will be admissible at trial.”

•

“When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own
pleading; rather, its response mus - by affidavits or as otherwise provided in
this rule - set out specific facts showing a genuine issue for trial.”
[Fed.R.Civ.P. 56(e)(2)]

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•

“The failure to present any evidence to counter a well-supported motion for
summary judgment alone is grounds for granting the motion.” []

Alexander, 576 F.3d at 558 (emphasis added), citing Everson v. Leis, 556 F.3d 484, 496
(6th Cir. 2009) (citing Skousen v. Brighton High School, 305 F.3d 520, 528 (6th Cir.
2002)). “[The court] must look beyond the pleadings and assess the proof to determine
whether there is a genuine need for trial.” Sowards v. Loudon County, 203 F.3d 426, 431
(6 th Cir. 2000).
Plaintiff Koubriti’s opposition brief supplies no evidence at all. Defendant,
however, has developed evidence establishing:
(1)

Agent Thomas did not withhold any information pertinent to the
investigation of Plaintiff from prosecutor Convertino, including any emails
concerning sketches of the area around the Queen Alia Hospital. DX 1
(Declaration of Michael J. Thomas) at ¶ 3.

(2)

Agent Thomas did not withhold any information regarding the possibility
that Nassa Ahmad’s mentally unstable brother may have been doodling in
the day planner that was seized as evidence, because Ahmad never relayed
any such information to Agent Thomas. Id. at ¶ 4.

(3)

Agent Thomas also did not withhold any statement by Air Force OSI SA
Goodnight or any other witnesses that the sketch of the Incirlik Air Base
was inaccurate, because to the best of SA Thomas’s knowledge, SA

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Goodnight made no such statement. Id. at ¶ 5-6.
(4)

Prosecutor Convertino and Agent Thomas visited the Incirlik Air Base
together, and both believed the sketch, which was very rough, was an
accurate depiction of what they saw. Id. at ¶ 6.

(5)

Agent Thomas similarly did not engage in any conduct that violated
Plaintiff’s constitutional rights with respect to the interviews of Yousef
Hmimssa. Agent Thomas did not record the contents of the interviews
because it was prosecutor Convertino, not Agent Thomas, who was
conducting the interviews, and Convertino instructed Agent Thomas not to
take notes because the interviews were considered trial preparation. Id. at ¶
7. And, in any case, prosecutor Convertino was fully aware of any
inconsistent statements Hmimssa may have made during his interviews
because Convertino was present for and conducted the interviews. Id. at ¶ 9.

(6)

Agent Thomas did not withhold from prosecutor Convertino a 9/11/2007
email wherein Agent Thomas indicated that there were difficulties
transcribing audio portions of the videotape due to Tuniusei or Algeria
dialect speech. AUSA Convertino was aware of this problem. Id. at ¶ 8.

In La Grasso Bros. Inc. v. American Foodservice, L.L.C., 2011 WL 891221
(E.D. Mich. 2011), this Court recently made clear that where, as here, the undisputed
evidence proffered by the moving party establishes that there is no dispute of fact

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warranting a trial, the non-moving party “must set out specific facts showing a genuine
issue for trial,” [citing Fed. R. Civ. P. 56(c)(1)] and that “there must be evidence on
which the jury could reasonably find for the non-moving party”[citing Hopson v. Daimler
Chrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002)].
Plaintiff has not, and cannot, present even a scintilla of evidence to dispute Agent
Thomas’ declaration. As such, the court should determine as a matter of law that Thomas
is shielded by qualified immunity and that Plaintiff’s complaint should therefore be
dismissed as a matter of law.
CONCLUSION
For all of the reasons set forth in this Motion and Brief, Plaintiff’s Complaint and
action should be dismissed.
Respectfully submitted,

s/ Richard L. Swick
Richard L. Swick
Counsel for Defendant Michael Thomas
Swick & Shapiro, P.C.
1101 15 th Street, N.W., Ste 550
Washington, D.C. 20005
Tel: [phone]
E-mail: [e-mail]
Date: April 14, 2011

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CERTIFICATE OF SERVICE
I hereby certify that on April 14, 2011, I presented the foregoing Defendant Michael
Thomas’ Reply to Plaintiff’s Opposition to His Motion to Dismiss Or, Alternatively, for
Summary Judgment and this Certificate of Service to the Clerk of the Court for filing and
uploading to 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])
Robert S. Mullen ([e-mail])
s/ Richard L. Swick
Richard L. Swick
Counsel for Defendant Michael Thomas
Swick & Shapiro, P.C.
1225 Eye Street, N.W. Ste 1290
Washington, D.C. 20005
Tel: [phone]
E-mail: [e-mail]
Dated: April 14, 2011

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