United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford United States Magistrate Judge
OPINION & ORDER GRANTING DEFENDANTS' MOTIONS
TO DISMISS [11, 12]
Gershwin A Drain United States District Court Judge
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. The Complaint alleges multiple tort,
criminal, and constitutional violations. This case was filed
in state court, then removed to federal court. This matter is
currently before the Court on Defendants' Motions to
Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). All parties were represented at a hearing on
October 3, 2016. For the following reasons, the
Defendants' Motions to Dismiss are GRANTED.
6, 2012 Gregg Blaney (“Plaintiff”) pled guilty to
bank fraud in violation of 18 U.S.C. § 1344.
See Compl., ECF No. 1 at 10 (Pg. ID 10). The events
leading to the Plaintiff's conviction involved a mortgage
fraud scheme with Plaintiff's co-defendant, Gerald
Payton. United States v. Blaney, No. CRIM. 11-20606,
2013 WL 1688359, at *3 (E.D. Mich. Apr. 18, 2013). Eastern
District of Michigan Judge Sean Cox held a Sentencing Hearing
on April 17, 2013. Id. At the Sentencing Hearing,
Plaintiff contested the Government's computation of the
loss and the relevant conduct that Judge Cox should consider
during sentencing. Id. On April 18, 2013, Judge Cox
concluded that Blaney's relevant conduct involved twelve
different real estate transactions and included an adjusted
total loss of $801, 634.48. Id. at *15. Judge Cox
ordered thirty-seven months imprisonment, a $400, 000 fine,
and $801, 634.48 in restitution. ECF No. 12-4. Judge Cox
imposed the Judgment on April 19, 2013, but signed the
Judgment on April 30, 2013. Id. Plaintiff appealed
to the Sixth Circuit, which affirmed Judge Cox's
decision. See United States v. Blaney, 570
F.App'x 536, 537 (6th Cir. 2014).
Plaintiff filed the Complaint against Agent Killeen on April
18, 2016 in the Wayne County Circuit Court. Id. at 9
(Pg. ID 9). Agent Killeen investigated the Plaintiff and
testified before the grand jury that indicted the Plaintiff.
See ECF No. 1 at 11-12 (Pg. ID 11-12). Agent Killeen
also testified at the Plaintiff's sentencing, urging the
judge to impose a lengthy sentence and providing evidence to
compute restitution. Id.
alleges that Agent Killeen lied under oath to both the grand
jury and to the judge. Id. Specifically, the
Plaintiff asserts that Agent Killeen fabricated how much the
Plaintiff was paid and the amount of total loss. Id.
According to the Plaintiff, Agent Killeen fabricated or
omitted facts, used fake documents, contradicted statements
from bank customers, and failed to interview key informants.
Id. Plaintiff further asserts that Judge Cox and the
grand jury relied on Agent Killeen's testimony in issuing
the indictment and rendering his sentence. Id.
8, 2016, Agent Killeen removed the case to federal court.
Id. at 1. On that same day, the United States
substituted itself for Agent Killeen as Defendant for Counts
II, V, VI, & VII. See ECF No. 3. Plaintiff
advances the following claims against Agent Killeen and the
United States of America: (1) criminal violations of perjury
and obstruction of justice [Counts I & III]; (2) tort
claims of gross negligence, negligent and intentional
infliction of emotional distress, respondeat superior
liability, and negligent supervision and retention [Counts
II, V, VI, & VII]; and a (3) constitutional violation
under the Fourth and Fourteenth Amendments [Count IV]. ECF
No. 1 at 14-16 (Pg. ID 14-16).
Legal Standard for 12(b)(1) and 12(b)(6) Motions
Rule 12(b)(1) motion must be considered first as a Rule
12(b)(6) motion would be moot if there was no subject matter
jurisdiction. See Bell v. Hood, 327 U.S. 678, 682
(1946). Where subject-matter jurisdiction is challenged
pursuant to Fed.R.Civ.P. 12(b)(1), the plaintiff has the
burden of proving jurisdiction in order to survive the
motion. Rule 12(b)(1) motions generally come in two
varieties: factual and facial attacks. “[W]hen a court
reviews a complaint under a factual attack … no
presumptive truthfulness applies to the factual
allegations.” Ohio Nat. Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990). On the other
hand, “[a] facial attack on the subject matter
jurisdiction alleged by the complaint merely questions the
sufficiency of the pleading. In reviewing such a facial
attack, a trial court takes the allegations in the complaint
as true, which is a similar safeguard employed under 12(b)(6)
motions to dismiss.” Id.
12(b)(6) allows the court to make an assessment as to whether
the plaintiff has stated a claim upon which relief may be
granted. See Fed.R.Civ.P. 12(b)(6). The court must
construe the complaint in favor of the plaintiff, accept the
allegations of the complaint as true, and determine whether
plaintiff's factual allegations present plausible claims.
To survive a Rule 12(b)(6) motion to dismiss, plaintiff's
pleading for relief must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. (citations
and quotations omitted). “[T]he tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009).
“Nor does a complaint suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Id. “[A]
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. The plausibility standard
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id.
“[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