Soliman v. Bidwell

Filing 8

ORDER granting plaintiff's application to proceed in forma pauperis 2 , DISMISSING plaintiff's amended complaint 7 , dismissing as moot plaintiff's motion to change judge 6 and denying any appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIKHAYL SAMY SOLIMAN,
Plaintiff,
CASE NO. 15-CV-12421
HONORABLE GEORGE CARAM STEEH

v.
JUSTIN B. BIDWELL,
Defendant.
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ORDER GRANTING PLAINTIFF’S APPLICATION
TO PROCEED IN FORMA PAUPERIS (Doc. #2),
DISMISSING PLAINTIFF’S AMENDED
COMPLAINT (Doc. #7), DISMISSING AS
MOOT PLAINTIFF’S MOTION TO CHANGE
JUDGE (Doc. #6), AND DENYING
ANY APPEAL IN FORMA PAUPERIS
Plaintiff Mikhayl Samy Soliman filed this action pro se against Justin B. Bidwell, a
Special Assistant United States Attorney, Health Care Fraud Unit, formerly involved in the
ongoing prosecution of plaintiff for health care fraud. See United States of America v.
Mikhayl Soliman, M.D., No. 12-cr-20599.1 Plaintiff alleges that Bidwell obtained evidence
to use against him in the criminal case illegally. For relief, plaintiff seeks (1) that the “142
drug dealers that were sent to [his] clinic . . . be further investigated”; (2) monetary
compensation (the money that was seized from him by the government in the criminal
action); and (3) return of his wife’s personal assets that were taken from California.2 For

1

Bidwell has been off of the criminal case since February 23, 2015.

2

Plaintiff does not state whether it was Bidwell or someone else who took his
wife’s assets nor does he state what those assets are.
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the reasons set forth below, plaintiff’s complaint will be dismissed for failure to state a claim
upon which relief can be granted and because defendant is entitled to absolute
prosecutorial immunity from plaintiff’s claim for money damages.
Although federal courts hold the pro se complaint to a less stringent standard than
those drafted by attorneys, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), under 28 U.S.C. § 1915(e)(2)(B), a district
court may dismiss a complaint before service on defendants if it is satisfied that the action
is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it
seeks monetary relief from defendants who are immune from such relief. To state a claim
upon which relief can be granted, the complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
standard under Rule 8 “does not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted).

This requires “factual enhancement”

amounting to more than “naked assertions.” Id.
Although plaintiff filled out this district’s form complaint used by pro se plaintiffs, he
fails to state a claim upon which relief can be granted. Plaintiff alleges that, in connection
with his criminal case, Bidwell illegally obtained evidence from his clinic without a court
order prior to September 14, 2012. (Doc. #7 at 1). Plaintiff also argues that Bidwell “did
not notify the Medicare billing department . . . to filter the billing in order to help [plaintiff]
avoid any criminal offense. . . .” (Id. at 7). Plaintiff fails to allege a cognizable claim against
Bidwell. This becomes clear when looking at the relief plaintiff requests. The court does not
have any jurisdiction to order the “142 drug dealers” apparently sent to plaintiff’s clinic
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during the investigation of his criminal case to be further investigated. Nor can the court
order money damages in the form of forcing the government to return money seized from
plaintiff in the course of the criminal investigation. This money has not yet been forfeited;
the government has merely filed a notice of forfeiture to notify plaintiff that, if he is convicted
of the alleged health care fraud, the government intends to forfeit certain assets that were
seized from him during the course of the investigation. Finally, plaintiff seeks return of his
wife’s unspecified assets that were allegedly seized in California, but (1) he does not have
standing to pursue this relief on behalf of his wife and (2) he has not alleged that Bidwell
was involved in seizing any assets from his wife.
Moreover, to the extent that plaintiff is seeking monetary damages, Bidwell is entitled
to absolute prosecutorial immunity. Prosecutors are absolutely immune from civil suit for
damages for the alleged deprivation of a constitutional right in bringing a prosecution.
Imbler v. Pachtman, 424 U.S. 409, 427 (1976). To the extent that Bidwell was involved in
bringing the action against plaintiff, including his alleged participation in the investigation
leading up to the criminal action, he is entitled to absolute immunity. “Investigative acts
undertaken in direct preparation of judicial proceedings, including the professional
evaluation of evidence, warrant absolute immunity[.]” Ireland v. Tunis, 113 F.3d 1435, 1445
(6th Cir. 1997). Plaintiff’s allegations, accepted as true, make clear that he is seeking relief
as a result of his criminal prosecution. Bidwell is entitled to absolute immunity for his
actions antecedent to the criminal action as well as any actions taken while advocating the
government’s position in the criminal action. Therefore, plaintiff’s complaint fails to state
a claim upon which relief can be granted.

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Plaintiff’s complaint was originally assigned to Judge Bernard Friedman. The case
was reassigned to this court as a companion to plaintiff’s criminal case. (Doc. #5).
Subsequently, plaintiff filed a “Motion to Change Judge” in this action. The motion states:
I am filing a motion to change the judge for this case because I want a
second judge since the defendant was the original prosecutor for my original
case. Therefore, a second opinion by another judge would be fair.
(Doc. #6 at 1).
Given the court’s conclusion above that plaintiff’s complaint is subject to dismissal,
his motion to change judge will be dismissed as moot. However, even if plaintiff’s request
was not moot, the court denies the motion because it lacks merit. Plaintiff does not specify
which statute his motion is brought under — 28 U.S.C. § 144 or 28 U.S.C. § 455. Under
§ 144, plaintiff has not filed an affidavit stating any facts or reasons that he believes the
undersigned to be biased or prejudiced against him. Indeed, plaintiff does not allege that
the undersigned is biased or prejudiced against him; he simply states that “another judge
would be fair.” That is different than alleging that the undersigned would be unfair.
Likewise, under § 455, “[t]he judge must recuse himself only if a reasonable, objective
person, knowing all the circumstances, would have questioned the judge’s impartiality.”
Kemp v. United States, 52 F. App’x 731, 733–34 (6th Cir. 2002). The subjective view of
the party requesting recusal is irrelevant, “no matter how strongly that view is held.” Id. at
734. Here, plaintiff has not questioned the undersigned’s impartiality. Rather, he merely
states that “a second opinion by another judge would be fair.” Plaintiff fails to meet his
burden in obtaining a new judge.
For these reasons, IT IS ORDERED that plaintiff’s motion to proceed in forma
pauperis (Doc. #2) is GRANTED. IT IS FURTHER ORDERED that plaintiff’s case is
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DISMISSED. Plaintiff’s motion to Change Judge (Doc. #6) is DISMISSED AS MOOT.
Based on the preceding order, this court certifies that any appeal from this decision would
be frivolous, not in good faith and, therefore, pursuant to 28 U.S.C. § 1915(a)(3), may not
be taken in forma pauperis.
IT IS SO ORDERED.
Dated: August 10, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon Mikhayl Soliman,
12173 Chandler Dr., Plymouth, MI 48170 and attorneys of
record on
August 10, 2015, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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