United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford United States Magistrate Judge.
OPINION & ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION 
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 (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.
argues that any dismissal of his case was “plain
error” for three different reasons.
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 proper because
Heck precludes such collateral attack and because
Plaintiff's constitutional allegations fail to meet
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.
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.
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 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.
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.
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 transactions which form the
basis for his conviction. Thus, attacking Blaney's
restitution order is prohibited pursuant to Heck.
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.
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 ...