Faber v. Smith

Filing 59

OPINION AND ORDER granting motion to dismiss 33 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ANDREW FABER,
Plaintiff,
-vTERRANCE SMITH,
Defendant.

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No. 1:17-cv-355
Honorable Paul L. Maloney

OPINION AND ORDER GRANTING MOTION TO DISMISS
Robert Faber filed this lawsuit against his probation officer, Terrance Smith. Smith
has filed a motion to dismiss. (ECF No. 33.) Some of Faber's claims are barred by quasijudicial immunity and others are barred by the holding in Heck v. Humphreys. Other claims
simply fail to state a claim for which a court may grant relief. Therefore, the motion will be
granted.
This motion is ripe for resolution. Faber is currently incarcerated, although the events
giving rise to this complaint occurred while Faber was on supervised release. Smith served
Faber with the motion by mailing it to him on October 4, 2017. (ECF No. 35.) On
November 2, 2017, the Clerk docketed a letter from Faber indicating that he had not
received the motion and brief. (ECF No. 42.) Smith then filed a certificate of service
indicating that the motion and brief was again mailed to Faber. (ECF No. 43.) On
November 6, 2017, the Clerk docketed a motion and brief sent by Faber titled "Plaintiff's
Motion to Dismiss Defendant's Motion to Dismiss Bivins Claim (Answere) and Abuse of
Power by Defendant Terrance Smith." (ECF Nos. 45 and 46.) It is obvious from the

substance of the motion and brief that Faber had received Smith's motion to dismiss. Faber
has since filed two supplements to his motion and answer. (ECF Nos. 49 and 51.) Smith
filed a reply. (ECF No. 52.) Faber has filed a sur-reply. (ECF No. 55.)
I.
Under the notice pleading requirements, a complaint must contain a short and plain
statement of the claim showing how the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2);

see Thompson v. Bank of America, N.A., 773 F.3d 741, 750 (6th Cir. 2014). The complaint
need not contain detailed factual allegations, but it must include more than labels,
conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). A defendant bringing a motion to dismiss for failure
to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the
complaint. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).
To survive a motion to dismiss, a plaintiff must allege facts sufficient to state a claim
for relief that is “plausible on its face” and, when accepted as true, are sufficient to “raise a
right to relief above the speculative level.” Mills v. Barnard, 869 F.3d 473, 479 (6th Cir.
2017) (citation omitted). AThe complaint must >contain either direct or inferential allegations
respecting all material elements necessary for recovery under a viable legal theory.=@ Kreipke

v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted). AA claim is
plausible on its face if the >plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.=@ Ctr. for Bio-

Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly,
550 U.S. at 556). AThe plausibility standard is not akin to a >probability requirement,= but it

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asks for more than a sheer possibility that a defendant has acted unlawfully.@ Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2007) (citations omitted). When considering a motion to dismiss,
a court must accept as true all factual allegations, but need not accept any legal conclusions.

Ctr. for Bio-Ethical Reform, 648 F.3d at 369. Naked assertions without further factual
enhancement, formulaic recitations of the elements of a cause of action, and mere labels and
conclusions will be insufficient for a pleading to state a plausible claim. SFS Check, LLC v.

First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (citations omitted).
II.
The complaint is not a model of clarity. Because Faber is proceeding without an
attorney, this Court must liberally construe his pleadings. Boswell v. Mayer, 169 F.3d 384,
387 (6th Cir. 1999); see Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006) (citing Spotts

v. United States, 429 F.3d 248, 250 (6th Cir. 2005)). The Court has endeavored to identify
the claims raised in the complaint. The Court has consulted Faber's subsequent filings
seeking clarification of the claims in the complaint.
Faber raises four claims in his complaint. First, Faber asserts that, in May and June
2016, Smith falsely accused Faber of using controlled substances. Faber asserts Smith
tampered with a drug test cup so that a positive result was returned. Faber also asserts Smith
made Faber wear a patch of some sort. Second, Faber alleges Smith interfered with Faber's
attempts to secure housing and leave the halfway house.

And, because of Smith's

interference, Faber lost money. Farber's third and fourth claims overlap. Faber alleges Smith
harassed Faber's boyfriend, Tylyn Geiszel, caused Geiszel to be homeless, and has interfered
with their freedom of religion.

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III. Quasi-Judicial Immunity
At all times, and for all of the specific actions taken by Smith of which Farber
complains, Smith was acting in his capacity as Farber's supervising officer while Farber was
on supervised release. Based on the allegations in the complaint, it appears that the actions
of which Faber complains were all performed by Smith while he was investigating whether
Faber was complying with the terms of his supervised release. In this circuit, "a probation
officer performing duties to ensure a probationer was complying with the terms of probation
[is] entitled to quasi-judicial immunity." Loggins v. Franklin Cty., Ohio, 218 F. App'x 466,
476 (6th Cir. 2007) (citing Balas v. Leishman-Donaldson, No. 91-4073, 1992 WL 217735,
at *5 (6th Cir. Sept. 9, 1992)); but see Victory v. Pataki, 814 F.3d 47, 66-67 (2d Cir. 2016)
(holding that parole officers are not entitled to immunity for the preparation of false reports
and the subsequent recommendations). In his response, Faber argues that the actions about
which he complains constitute an abuse of authority and that Smith should not be afforded
immunity and must be held accountable. Although the accusations Faber has made against
Smith are serious, the law does not allow Faber to sue Smith for damages for those actions.
Accordingly, Faber's claims arising from the drug tests, Smith's visits to the residence,
and Smith's interactions with Geiszel must be dismissed as all of those actions were
investigations to determine if Faber was complying with the terms of his supervised release.
IV. Failure to State a Claim
Assuming, for the sake of argument only, that some claims survive Smith's quasijudicial immunity, the Court concludes that it must nevertheless dismiss those claims.
A. Bivens

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Faber has framed his claims as a Bivens action. In Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held
that a private citizen injured by a federal agent's alleged violation of the Fourth Amendment
may bring an action for damages against the agent. See FDIC v. Meyer, 510 U.S. 471, 484
(1994). To state a claim under Bivens, a plaintiff must allege that he was deprived of a right
secured by the federal constitution or the laws of the United States by a person acting under
color of federal law. Yeager v. Gen. Motors Corp., 265 F.3d 389, 398 (6th Cir. 2001). The
Supreme Court has "'responded cautiously to suggestions that Bivens remedies should be
extended into new contexts.'" Id. (quoting Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)).
Earlier this year, the Supreme Court reiterated that "expanding the Bivens remedy is now a
'disfavored' judicial activity." Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citing Iqbal, 556
U.S. at 675.) Indeed, over the past thirty years, the Court has "'consistently refused to extend

Bivens to any new context or new category of defendants.'" Id. (quoting Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 68 (2001)).
When considering whether a plaintiff has a federal cause of action under Bivens, a
court must determine if an alternative remedy exists to redress the alleged violation of the
plaintiff's rights, and whether any alternatives amount to a "convincing reason" to refrain from
extending Bivens to provide a cause of action. Minneci v. Pollard, 565 U.S. 617, 122-23
(2012) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). The Supreme Court has
never extended Bivens to a Free Exercise claim. See Meeks v. Larsen, 611 F. App'x 277,
287 (6th Cir. 2015). Congress has enacted several statutes that provide a comprehensive

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remedial scheme for violations of religious freedoms, undermining the need to extend

Bivens. Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016).
Accordingly, any Free Exercise claim must be dismissed.
B. Heck
Faber is currently serving a twelve-month term of imprisonment for violations of the
terms of his supervised release. See United States v. Faber, No. 2:05-cr-53 (W.D. Mich.
2010) (docket entry 96 dated March 8, 2017) ("Faber Criminal Action.") Faber pled guilty to
unauthorized possession of a computer and media storage device, possession of sexually
explicit material, and possession of sexually explicit material deemed inappropriate by his
probation officer. (Id. PageID.263.) As part of his sentence, the judge imposed special
conditions for supervision, including no contact or association with Tylyn Gieszer, as
directed by the probation officer. (ECF No. 98 PageID.270.)
To the extent any of Faber's Bivens claims might implicate his guilty plea or his
sentence, the Court must dismiss the civil claim. Civil tort actions cannot be used to
challenge the validity of a criminal judgment or sentence. Heck v. Humphrey, 512 U.S. 477,
486 (1994). This prohibition on civil actions applies to Bivens claims. Ruff v. Runyon, 258
F.3d 498, 502 (6th Cir. 2001).
Accordingly, because part of Faber's sentence for the supervised release violations
requires no contact with Gieszer, any claim arising from interference with that relationship
must be dismissed under Heck.

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C. Rule 12(b)(6)
To survive a motion to dismiss, a plaintiff must pled sufficient facts to state a plausible
claim for which this Court may grant relief.
Faber cannot state a plausible claim arising from the drug patch. After Smith required
Faber to start wearing the patch, Faber filed a motion requesting, among other things, to
terminate the patch requirement. (Faber Criminal Action, ECF No. 72.) The court denied
the motion, finding that it was "without merit." (Id. ECF No. 73.) Faber has provided no
basis for this Court to disturb that finding.
Faber cannot state a plausible claim for alleging tampering with the drug test. It is not
clear from the record whether any positive drug test results were ever used against Faber as
part of the criminal action against him. The record does establish that other violations of
supervised release were alleged against Faber, and that he pled guilty to those violations.
Accordingly, Faber cannot establish any basis for a malicious prosecution claim. See

Buchanan v. Metz, 647 F. App'x 659, 665 (6th Cir. 2016).
Faber cannot state a plausible claim arising from the modification of the length of stay
at the halfway house. As part of the criminal case, the court ordered the extension of time
Faber had to stay at the halfway house. (Faber Criminal Action, ECF No. 71 PageID.184.)
As part of that order, Faber waived his right to a hearing, waived his right to counsel, and
agreed to the modification of the conditions of his supervised release, including the extension
of time at the halfway house. (Id. at PageID.186.) Again, Faber has provide no basis for this
Court to disturb the orders issued in the criminal action.

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V.
Smith is entitled to the dismissal of all claims brought against him in this lawsuit.
Where the claims arise from Smith's work as a probation officer investigating Faber to ensure
compliance with the terms of supervised release, Smith is entitled to quasi-judicial immunity.
Faber cannot raise a Bivens claim for Smith's alleged interference with Faber's Free Exercise
rights. Any claim that implicates the plea and sentence Faber is currently serving for
violations of supervised release, including contact with Geiszen, is barred by Heck. Finally,
Faber's complaint fails to state a claim for the allegations about the drug patch, the drug test,
and the modification of the terms of supervised release extending the time Faber had to stay
at the halfway house.

ORDER
For the reasons provided in the accompanying Opinion, Defendant Smith's motion
to dismiss (ECF No. 33) is GRANTED.
Because Faber was a prisoner at all times during the events giving rise to this lawsuit
and during the pendency of this lawsuit, the Court need not determine whether to issue a
certification of good faith. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1136 (6th Cir.
1997).
IT IS SO ORDERED.
Date: December 7, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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