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Blaney v. Killeen

United States District Court, E.D. Michigan, Southern Division

October 17, 2016

Gregg Blaney, Plaintiff,
v.
Patrick Killeen and The United States of America, Defendants.

          Elizabeth A. Stafford United States Magistrate Judge

          OPINION & ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [11, 12]

          Gershwin A Drain United States District Court Judge

         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. 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.

         II. Factual Background

         On June 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).

         The 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.

         Plaintiff 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.

         On June 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).

         III. Legal Standard for 12(b)(1) and 12(b)(6) Motions

         The 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.

         Fed.R.Civ.P. 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 relief.'” Id.

         IV. ...


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