Blaney v. Killeen, et al.

Filing 26

OPINION & ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION 25 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGG BLANEY,
Case No. 16-cv-12074

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
PATRICK KILLEEN and THE UNITED
STATES OF AMERICA,

UNITED STATES MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendants.
OPINION & ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION [25]
I. INTRODUCTION
This is a federal tort claims action and a Bivens action. In April 2016, Gregg
Blaney (“Plaintiff”) filed a complaint against Federal Bureau of Investigation Agent
Patrick Killeen (“Agent Killeen”) and the United States of America (collectively,
“Defendants”). The Complaint alleges multiple tort, criminal, and constitutional
violations. In July 2016, the Defendants moved to dismiss the case. On October 24,
2016, this Court granted the Defendants’ Motions to Dismiss. Presently before the
Court is Plaintiff’s pro se Reply to the Court’s Opinion and Order Granting
Defendant’s [sic] Motion to Dismiss. The Court construes the Plaintiff’s Reply as a
Motion for Reconsideration. For the following reasons, reconsideration is DENIED.

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II. DISCUSSION
Plaintiff argues that any dismissal of his case was “plain error” for three
different reasons.
First, the Plaintiff argues that because his Complaint was timely filed,
dismissal of the case was improper. See ECF No. 25, p. 1 (Pg. ID 322). Plaintiff is
incorrect. In this case, Plaintiff alleged seven counts against the Defendants: criminal
violations [Counts I & III]; tort claims [Counts II, V, VI, & VII]; and a constitutional
violation under the Fourth and Fourteenth Amendments [Count IV]. ECF No. 1, pp.
14–16 (Pg. ID 14–16). The timeliness of the Plaintiff’s Complaint factored into the
Court’s analysis with regard to only one of Plaintiff’s seven claims [Count IV]. With
respect to Count IV, the Court held, “any constitutional claim based on Agent
Killeen’s sentencing testimony is likely beyond the three-year statute of limitations.
Even if the Blaney’s constitutional claim survived the statute of limitations, it would
nevertheless be barred for the reasons discussed above.” ECF No. 23, p. 14 (Pg. ID
319) (emphasis added). In his Reply, Plaintiff argues, “[b]ut there are no reasons set
forth above.” ECF No. 25 at 1 (Pg. ID 322). He is mistaken. In the Court’s preceding
reasoning, the Court concluded that: (1) Heck v. Humphrey precluded Blaney’s
constitutional claims and (2) the Complaint fails to state a Fourth or Fourteenth
Amendment claim even after the Court liberally construed Blaney’s pleadings.
Therefore, even if the Complaint was timely filed, dismissal of Count IV is still
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proper because Heck precludes such collateral attack and because Plaintiff’s
constitutional allegations fail to meet pleading requirements.
Second, Plaintiff seems to argue that neither Rehberg v. Paulk, 132 S. Ct. 1497
(2012) nor Heck v. Humphrey, 512 U.S. 477 (1994) are sufficient authority to
dismiss this case. Plaintiff is incorrect.
Rehberg v. Paulk granted a law enforcement witness absolute immunity with
respect to any Section 1983 claim based on that law enforcement witness’s
testimony. In this case, Plaintiff’s Complaint alleges a Section 1983 claim against
Agent Killeen for his witness testimony. ECF No. 1, p. 15. Therefore, if this case
proceeded under Section 1983, Rehberg would confer absolute immunity to Agent
Killeen for his witness testimony and Blaney’s Section 1983 claim would fail. The
Supreme Court of the United States decided Rehberg; thus it is binding on this Court
and sufficient authority.
However, the Court recognized that the Plaintiff improperly plead the
constitutional claim against Agent Killeen. Section 1983 claims can proceed only
against state officers and state actions. In this case, Agent Killeen was a federal
officer, enforcing federal law, and testifying before a federal grand jury in federal
court. Because Agent Killeen is not a state officer and did not engage in state action,
the Plaintiff’s Section 1983 claim cannot proceed against him. Instead of dismissing
the Plaintiff’s constitutional claim as improperly plead, the Court liberally construed
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the Plaintiff’s constitutional claim as attempting to state a claim under Bivens v. Six
Unknown Federal Agents, 403 U.S. 388 (1971). A Bivens action is similar to a
Section 1983 action, but a Bivens action proceeds against federal officers, like Agent
Killeen.
Even after the Court construed the Plaintiff’s constitutional claim as a Bivens
action, the claim is nevertheless barred by the doctrine articulated in Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court of the United States
prohibited a prisoner from attacking his criminal conviction through civil litigation.
Later, the Sixth Circuit, which binds this Court, extended the principles of Heck to
apply in Bivens actions. See Robinson v. Jones, 142 F.3d 905, 906–07 (6th Cir.
1995). Blaney argued that he sought relief from his restitution order and that his
restitution order was distinct from his conviction. Based on that argument, Blaney
urged this Court not to apply Heck to this case.
The Court disagreed with Blaney’s reasoning. In this case, Blaney’s
conviction is intertwined with his restitution. The underlying bank fraud, which
Blaney plead guilty to, included twelve real estate transactions. Blaney’s restitution
was calculated from the combined loss resulting from those twelve real estate
transactions. Therefore, attacking the lawfulness of Blaney’s restitution order tends
to attack the lawfulness of Blaney’s conviction by seeking to unravel the twelve

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transactions which form the basis for his conviction. Thus, attacking Blaney’s
restitution order is prohibited pursuant to Heck.
Even if Heck did not bar Plaintiff’s Bivens claim, the claim would still fail
because it does not meet federal notice pleading requirements. Blaney alleged
several theories of liability. However, even after the Court liberally construed
Blaney’s Complaint, Blaney’s claims were not rooted in areas protected by the
Fourth and Fourteenth Amendments. Therefore, Blaney’s constitutional claim fails
as a matter of poor pleading even if Heck does not bar the claim.
Third, the Plaintiff seems to argue that his case should not be dismissed
because he was somehow denied his “right and day in court”. See ECF No. 25, p. 2
(Pg. ID 323). This is untrue. Receiving an adverse ruling is different from being
denied access to court. The Court held a hearing in this matter on October 3, 2016.
Not only was Blaney present, he argued on his own behalf. The Court read, listened,
and considered each argument presented to it. However, in adherence to federal law,
the Court must dismiss Blaney’s claims. Therefore, Blaney was not denied his “day
in court”.
V. CONCLUSION
For the reasons discussed above, reconsideration is DENIED.

SO ORDERED.

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Dated: November 9, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

Detroit, MI

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, November 9, 2016, by electronic and/or ordinary mail.

/s/Tanya Bankston
Case Manager, [phone]

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