Khan v. Harty et al

Filing 28

OPINION & ORDER Adopting Report and Recommendation 21 granting defendants' motion to dismiss 15 and denying Pltf's Motion to Appoint Counsel 22 . Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMJAD M. KHAN,
Case No. 15-11956
Plaintiff,
Honorable Nancy G. Edmunds
v.
MICHAEL W. HARTY, et al.,
Defendants.
/

OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE’S
JULY 14, 2016 REPORT AND RECOMMENDATION [21] AND DENYING AS MOOT
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [22]
On August 3, 2006, Plaintiff Amjad Khan pled guilty to one count of health care fraud
in violation of 18 U.S.C. § 1347. Khan was sentenced to 33 months and ordered to pay
$1,067,699 in restitution. As the Sixth Circuit later recognized, Khan expressly forfeited any
right to challenge the restitution amount in his Rule 11 plea agreement. United States v.
Khan, 6th Cir. No. 07-2157 (April 28, 2008). Nevertheless, over ten years later, Khan filed
this civil action against the United States and several of its agents ("Defendants") seeking
to reverse his criminal conviction and correct the loss amount attributable to Medicare.
(Plf.'s Obj. 2).
This matter was referred to the magistrate judge who now recommends granting
Defendants' motion to dismiss for two reasons: First, "the findings in Mr. Khan's criminal
case have a preclusive effect in the present case under principles of collateral estoppel",
and, more importantly, he is "barred from challenging the restitution aspect of his sentence
under the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994)." (Report and

Recommendation at 5). Khan has since filed a series of objections to the magistrate judge's
recommendation, all of which can be rejected for the same reason; namely, Khan readily
concedes that the purpose of this suit is "to render [his] conviction or sentence invalid."
(Plf.'s Obj. 2). As the magistrate judge aptly observed, where "success in the civil suit
would implicitly question the validity or duration of sentence, the litigant must first achieve
favorable termination of his available state, or federal habeas . . . . " remedies. (Report and
Recommendation at 8) (quoting Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303,
1305 (2004).

More to the point, "civil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgments." Heck, 512 U.S. at 486.
Because Khan's claims are inextricably intertwined with his criminal conviction, they are
barred under the Heck doctrine. See Duronio v. Werlinger, 454 F. App'x 71, 72 (3d Cir.
2011) ("we stressed that a direct appeal was the proper path for a challenge of the actual
[d]istrict [c]ourt restitution plan, as a Bivens remedy would violate the favorable-termination
rule of Heck . . . .")
For the reasons thus stated, the Court OVERRULES Plaintiff's objections (Dkt. 24,
25), ADOPTS the Magistrate Judge's Report and Recommendation (Dkt. 21), and
DISMISSES the complaint. The Court further DENIES Plaintiff's motion for appointment of
counsel as moot. (Dkt. 22)

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

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Dated: August 30, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 30, 2016, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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