Modena #09343-040 v. Davis et al
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
MICHAEL JOHN MODENA,
Case No. 1:13-cv-1341
Honorable Gordon J. Quist
DONALD A. DAVIS et al.,
This is a civil rights action brought by a federal prisoner pursuant to the doctrine
announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).1 Plaintiff’s
application to proceed in forma pauperis was denied under the three-strikes rule and Plaintiff has
paid the entire civil action filing fee. Under the Prison Litigation Reform Act, PUB. L. NO . 104-134,
110 STAT . 1321 (1996), the Court is required to dismiss any prisoner action brought under federal
law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915A(b) and 42
U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly
irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, Plaintiff’s action will be dismissed for failure to state a claim.
Plaintiff’s complaint also cites 42 U.S.C. § 1983 as a basis for relief, but that statute applies to persons acting
under color of state law; it does not apply to federal officials. See District of Columbia v. Carter, 409 U.S. 418, 423–25
(1973) (“[A]ctions of the Federal Government and its officers are at least facially exempt from [§ 1983’s]
proscriptions.”); Benson v. United States, 969 F. Supp. 1129, 1135 (N.D. Ill. 1997).
Plaintiff Michael John Modena is presently in the custody of the Federal Bureau of
Prisons (FBOP).2 He names as defendants persons who appear to have been involved in some way
with Plaintiff’s past arrests and prosecutions: Former United States Attorney Donald A. Davis;
Assistant United States Attorney Hagen Frank; Unknown Parties named as Twelve Unknown U.S.
Marshals in Grand Rapids, MI; Pentwater Michigan Policeman K. Shuitema; State Trooper
Detective Richard Miller; B.A.T.F. Special Agent James Walsh; United States Magistrate Judge
Joseph Scoville; Probation Officer Richard Griffis; Richard Zambon, Esq.; United States District
Judge Janet Neff; Paralegal Heather Wiersma and Unknown Parties named as unknown courtroom
personnel working with Judge Neff.
Plaintiff’s complaint is virtually incomprehensible and includes discussion of a wide
array of topics including the nature of the oath of office taken by employees of the federal
government to an explanation of how a Bill becomes law. As best as can be understood, the crux
of Plaintiff’s complaint appears to be his assertion that he has been unlawfully arrested, detained,
prosecuted and convicted in connection with three separate criminal cases which resulted in Plaintiff
spending more then ten years in jail or prison. (Compl., docket #1, Page ID#10). Plaintiff alleges
that his First, Second, Fourth, Fifth, Sixth, Eighth and Tenth Amendment rights have been violated.
However, Plaintiff fails to set forth any facts to support the alleged violation of any of his
constitutional rights. As relief, Plaintiff seeks attorneys fees, a temporary injunction, compensation,
At the time of filing his complaint, Plaintiff was incarcerated at the United States Penitentiary, Hazelton.
(Compl., docket #1, Page ID#2.) Plaintiff continues to be in the custody of the FBOP, but he is currently residing at a
residential reentry center that contracts with the FBOP. See http://www.mhweb.org/westmichigan/project_rehab3.htm
(visited on March 27, 2014).
punitive damages, and “declaratory relief by a comprehensive ruling.” (Compl., docket #1, Page
Failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
In Bivens, the Supreme Court recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional rights. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). This implied cause of action is “the federal
analog to suits brought against state officials” under 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S.
250, 254 n.2 (2006). To state a claim that is cognizable in a Bivens action, the plaintiff must plead
two essential elements: first, that he has been deprived of rights secured by the Constitution or laws
of the United States, and second, that the defendants acted under color of federal law. Bivens, 403
U.S. at 397.
Plaintiff’s complaint must be dismissed because it fails to satisfy basic pleading
requirements for stating a constitutional claim. It merely consists of conclusory statements that
Defendants engaged in wrongful conduct, without any supporting allegations of material fact to
show (for purposes of stating a claim) that Defendants violated any of his rights, let alone his
constitutional rights. Thus, because it falls far short of the minimal pleading standards under FED .
R. CIV . P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled
to relief”), Plaintiff’s complaint must be dismissed.
Even if Plaintiff had stated a plausible claim against Defendants, his action would
still be subject to dismissal. Plaintiff challenges his arrests, detentions, prosecutions and convictions
in connection with three criminal cases for which he either pleaded or was found guilty and served
a total of more then ten years in jail or prison. A challenge to the fact or duration of confinement
should be brought as a petition for habeas corpus under 28 U.S.C. § 2254 or § 22553 and is not the
proper subject of a civil rights action brought pursuant to § 1983 or Bivens. See Preiser v.
Because he is a federal prisoner, in order to challenge his conviction Plaintiff must seek federal habeas relief
by filing a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255.
Rodriguez, 411 U.S. 475, 484 (1973) (the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody and the traditional function of the writ is to secure release
from illegal custody). Therefore, to the extent that Plaintiff’s complaint challenges the fact or
duration of his incarceration, it must be dismissed. See Adams v. Morris, 90 F. App’x 856, 858 (6th
Cir. 2004) (dismissal is appropriate where § 1983 action seeks equitable relief and challenges fact
or duration of confinement); Barnes v. Lewis, No. 93-5698, 1993 WL 515483, at *1 (6th Cir.
Dec.10, 1993) (dismissal is appropriate where civil rights action seeks equitable relief and
challenges fact or duration of confinement).
Moreover, to the extent Plaintiff seeks injunctive, declaratory and monetary relief for
alleged violations of his constitutional rights related to his criminal convictions, his claim is barred
by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a state prisoner
cannot make a cognizable claim under § 1983 for an allegedly unconstitutional conviction or for
“harm caused by actions whose unlawfulness would render a conviction or sentence invalid” unless
a prisoner shows that the conviction or sentence has been “reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87 (footnote
omitted). See also Edwards v. Balisok, 520 U.S. 641, 646 (1997). The Sixth Circuit has long held
that Heck “applies with equal force to Bivens actions.” Baranski v. Fifteen Unknown Agents of
Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 460 (6th Cir. 2006). See also Robinson
v. Jones, 142 F.3d 905, 906–07 (6th Cir. 1998) (stating that the “Heck holding applies equally to an
action brought under Bivens” so that a federal prisoner could not bring a Bivens action until
demonstrating that his conviction has been “declared invalid or otherwise impugned as set forth in
Heck”). The holding in Heck applies to actions seeking monetary damages, as well as actions
seeking injunctive or declaratory relief. See Heck, 512 U.S. at 486 (monetary damages); Edwards,
520 U.S. at 646-48 (declaratory relief); Clarke v. Stalder, 154 F.3d 186, 189-90 (5th Cir. 1998)
(claim for injunctive relief intertwined with request for damages); Wilson v. Kinkela, No. 97-4035,
1998 WL 246401, at *1 (6th Cir. May 5, 1998) (injunctive relief). Plaintiff’s allegations clearly call
into question the validity of his convictions and Plaintiff has not alleged that any of his convictions
have been overturned or otherwise invalidated. Therefore, his action is barred under Heck until his
criminal convictions have been invalidated.
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§1915A(b), and 42 U.S.C. § 1997e(c).
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated: April 3, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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