1

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

KENT E. HOVIND, an individual. 

PAUL JOHN HANSEN, as trustee 

for Creation Science Evangelism 

(CSE), a non-statutory trust, 

Plaintiffs, Case No.: 3:20-cv-5484-TKW-HTC 

 v. 

UNITED STATES OF AMERICA 

(USA) an entity, 

MARGARET CATHARINE 

RODGERS, an individual, 

THE ESTATE OF JOHN DAVID 

ROY ATCHISON, an individual, 

MICHELLE HELDMYER, an 

individual, 

SCOTT SCHNEIDER, an individual, 

ALAN STUART RICHEY, an 

individual, 

Defendants. 

___________________________________/ 

DEFENDANTS’ MOTION TO DISMISS 

THE SECOND AMENDED COMPLAINT 

 COME NOW, Defendants United States of America, Margaret Catherine 

Rodgers, the estate of John David Roy Atchinson, Michelle Heldmyer, Scott 

Schneider, and Alan Stuart Richey, by and through the United States Attorney for 

the Northern District of Florida, and move to dismiss the Second Amended 
2

Complaint of Kent E. Hovind and Paul John Hansen pursuant to Fed. R. Civ. P. 

12(b)(6) on grounds of failure to state a claim. 

PROCEDURAL HISTORY 

On September 10, 2020, Magistrate Judge Frank issued a Report and 

Recommendation, recommending this case be dismissed based on Plaintiffs’ failure 

to comply with Magistrate Judge Canon’s order dated July 23, 2020 and its own 

order of August 24, 2020. (ECF 12). On September 25, 2020, the District Court 

remanded the case to give Magistrate Judge Frank an opportunity to review 

Plaintiff’s Second Amended Complaint filed on September 4, 2020 to determine if 

the Second Amended Complaint cured the deficiencies of the First Amended 

Complaint. (ECF 15). Giving the procedural posture of the case, Defendants are 

unclear whether a responsive pleading is due at this time, but out of abundance of 

caution, file this Motion to Dismiss the Second Amended Complaint. Other than 

decreasing the pages to satisfy the twenty-five page limit imposed by Local Rule 

5.7(B), the Second Amended Complaint is almost identical to the First Amended 

Complaint and, as set forth more fully below, is deficient for all of the other reasons 

Magistrate Judge Frank and/or Magistrate Judge Cannon previously suggested, 

including absolute and qualified immunity, Heck v. Humphrey, 512 U.S. 477 (1994), 

and the statute of limitations. (ECF 12 at 2). 
3

STATEMENT OF RELEVANT ALLEGATIONS 

1. On March 1, 2004, Plaintiff Kent E. Hovind (“Hovind”) founded the ministry 

Creation Science Evangelism (“CSE”) (ECF14 ¶28). 

2. On July 13, 2006, the United States conducted a S.W.A.T. raid on property 

owned by CSE and Hovind at 29 Cummings Rd, Pensacola, FL 32503 (ECF 14 ¶30). 

3. On the July 13, 2006, Hovind and his wife were presented a grand jury 

indictment, case no. 3:06cr83/MCR/EMT (ECF 14 ¶32). 

5. Hovind and his wife both pleaded not guilty to this indictment (ECF14 ¶32). 

6. Hovind retained Defendant Alan Stuart Richey as defense counsel (ECF 14 

¶34-35). 

8. Hovind and his wife were found guilty on all charges of the indictment (ECF 

14 ¶37). 

9. Hovind was sentenced to ten years in prison with three years of strict 

supervised probation, and ordered to pay over $1,000,000 between structured fines 

and restitution (ECF 14 ¶37). 

10. Hovind’s wife was sentenced to one year in prison and one year of supervised 

probation (ECF 14 ¶37). 

11. On August 7, 2015, Hovind was released from prison (ECF 14 ¶42). 

17. Defendant Margaret Catherine Rodgers was the judge who oversaw Hovind’s 

criminal case (ECF 14 ¶20). 
4

18. Defendants John David Roy Atchison and Michelle Heldmyer were 

prosecutors in Hovind’s criminal case, working as United States Attorneys (ECF14 

¶20-21). 

19. Defendant Scott Schneider is an IRS criminal investigator who testified at 

Hovind’s criminal trial (ECF 14 ¶23). 

20. Defendant Alan Stuart Richey was Hovind’s original defense counsel (ECF 

¶24). 

STANDARD OF REVIEW

"To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must 

contain sufficient factual matter, accepted as true, to 'state a claim to relief that is 

plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 

L. Ed. 2d 868 (2009); (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 

127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "Facial plausibility [exists] when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged." Id. This pleading standard 

does not require "detailed factual allegations," but a complaint must offer more than 

mere "labels and conclusions." Id. "A formulaic recitation of the elements of a cause 

of action will not do." Id. (quoting Twombly, 550 U.S. at 555) (quotation marks 

omitted). Plausibility means “more than a sheer possibility that a defendant has 

acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent 
5

with a defendant’s liability, it stops short of the line between possibility and 

plausibility of entitlement to relief.” Id. (quotation and citation omitted). The 

determination of whether a complaint states a plausible claim for relief is “a contextspecific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Iqbal, 556 U.S. at 679 (citation omitted). 

In considering a motion to dismiss under Rule 12(b)(6), "the Court accepts the 

factual allegations in the complaint as true and construes them in the light most 

favorable to the plaintiff." Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. 

for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). This 

deference is applied to factual allegations only, and not to mere legal conclusions. 

See Iqbal, 556 U.S. at 678. 

ARGUMENT 

 Plaintiffs bring twelve counts against the Defendants in violation of 42 U.S. § 

1983 and Amendments I, IV, V, VI, IX, X, XIII, and XIV of the United States 

Constitution. Each count involves an allegation that the Defendants, jointly and 

severally, violated Plaintiffs’ constitutional rights under color of federal authority. 

Despite Plaintiff’s reliance on 42 U.S.C. §1983, Plaintiffs’ claims actually arise from 

the seminal case Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

403 U.S. 388 (1971). 
6

The basis for all claims in the Second Amended Complaint claim arise out 

Plaintiffs’ allegations that Defendants conspired to convict Hovind in his criminal 

trail and enabled false testimony and false evidence against him, resulting in a false 

conviction. Plaintiffs request both monetary and injunctive relief. Plaintiffs’ claims 

against the Defendants are absolutely meritless and warrant dismissal. Plaintiffs 

have not produced sufficient evidence to successfully allege any of the constitutional 

violations contained in the Second Amended Complaint. 

I. Because Plaintiffs’ claims not ripe, Plaintiffs lack standing.

 The United States Supreme Court has held that in order to recover damages 

for allegedly unconstitutional conviction, imprisonment, or other harm caused by 

actions whose unlawfulness would invalidate a conviction, a § 1983 plaintiff must 

prove that the conviction has been reversed or otherwise invalidated. Heck v. 

Humphrey, 512 U.S. 477, 486-87 (1994). While Heck concerned a state prisoner 

seeking damages, the analysis is applicable to Bivens claims as well. See Abella v. 

Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (noting that courts typically apply the 

same analysis to § 1983 and Bivens claims). 

 In the instant case, Plaintiffs’ damages claims hinge on the finding that 

Defendants unconstitutionally deprived them of their constitutional rights in order 

to convict Hovind of crimes he did not commit. Thus, a ruling in Plaintiffs’ favor 

would require that Hovind’s convictions be invalidated. The Eleventh Circuit has 
7

held that, following Heck, when a judgment in a plaintiff’s favor requires the 

invalidity of a conviction, and such a conviction has not been overturned, the 

plaintiff may not seek relief until his conviction is overturned or expunged. See 

Krocka v. Hillsborough Cty. Sheriff’s Office, 761 Fed. App’x 895, 901 (11th Cir. 

2019) (“Mr. Krocka’s claims, predicated as they are on the invalidity of his 

conviction and confinement, do not accrue until (and if) his conviction and sentence 

are overturned.”); Hilario v. Marianna, 561 Fed. App’x 821, 822-23 (11th Cir. 2014) 

(affirming dismissal of Bivens claims because claims required invalidity of 

conviction, and conviction had not been overturned or invalidated); Abella, 63 F.3d 

at 1065 (“Because Abella's convictions have not been invalidated, his Bivens 

damages claims are not ripe.). Hovind’s conviction and sentence have not been 

invalidated. Accordingly, unless and until Hovind’s convictions are overturned, 

Plaintiffs do not have standing to bring a claim for damages and their claims are due 

to be dismissed. 

II. Plaintiff’s claims for declaratory and injunctive relief are not 

cognizable under Bivens. 

 The Eleventh Circuit has held that declaratory or injunctive relief claims 

which challenge the validity of the claimant’s conviction are not cognizable under 

42 U.S. §1983 or Bivens. Abella, 63 F.3d at 1066 (“[C]laims which challenge the 

validity of the claimant's conviction or sentence and seek release—are simply not 

cognizable under § 1983... This rule applies equally to Bivens actions.”). Plaintiffs 
8

seek declaratory relief in that the Defendants’ conduct be declared unconstitutional. 

Like their damages claims, the declaratory relief claims rest on the premise that 

Hovind was the victim of a false conspiracy to convict him, and therefore challenge 

the validity of his conviction. Since these claims are not cognizable under § 1983 or 

Bivens, this Court must dismiss Plaintiffs’ claims for declaratory relief. Abella, 63 

F.3d at 1066 (upholding district court’s dismissal on these grounds). 

III. Defendants Rodgers, Atchison and Heldmyer are barred from 

liability by absolute immunity. 

Plaintiffs name five Defendants as individuals in the Second Amended 

Complaint, each having played a role in Hovind’s criminal conviction and 

sentencing. Each Defendant, however, is barred from liability by qualified and/or 

absolute immunity. First, Judge Mary Catherine Rodgers is barred by absolute, 

judicial immunity. A judge receives absolute immunity from money damages when 

she deals with the plaintiff in a judicial capacity over which she had jurisdiction, 

even if she acted maliciously. See Harris v. Deveaux, 780 F.2d 911, 914 (11th Cir. 

1986). Judge Rodgers clearly dealt with Hovind in a judicial capacity and is shielded 

from any liability by absolute immunity. 

The Supreme Court has also extended absolute immunity to prosecutors. See 

Butz v. Economou, 438 U.S. 478, 509 (1978); see also Hoffman v. Office of State 

Att’y, 793 Fed. App’x 945, 954 (11th Cir. 2019) (holding that state attorney and 

assistant state attorney were entitled to absolute liability in their capacities as 
9

prosecutors). In Butz, the Supreme Court discussed recently affirming dismissal of 

a § 1983 suit against a state prosecutor for this reason. Id. at 510. Accordingly, 

Plaintiffs’ claims against Atchinson and Heldmyer are barred by absolute immunity 

and are due to be dismissed. 

IV. Defendant Schneider is barred from liability by qualified 

immunity. 

Qualified immunity shields government officials performing discretionary 

acts. Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982); Hadley v. Gutierrez, 526 

F.3d 1324, 1329 (11th Cir. 2008). “Under the qualified immunity doctrine, 

government officials performing discretionary functions are immune not just from 

liability, but from suit, unless the conduct which is the basis for suit violates clearly 

established federal statutory or constitutional rights of which a reasonable person 

would have known.” Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir. 1999) 

(citing Harlow, 457 U.S. at 818). 

Plaintiffs named IRS investigator Scott Schneider as a Defendant in his claims 

for damages. Plaintiffs do not explain in the Second Amended Complaint how 

Schneider’s actions render him liable in this case, but it can be inferred that Plaintiffs 

alleges that Schneider, as an agent for the IRS, acted in concert with the rest of the 

Defendants to falsely convict Hovind of tax crimes. Moreover, while Plaintiffs have 

alleged that Schneider violated their constitutional rights, their allegations are vague, 
10

conclusory and insufficient under Rule 12(b)(6) of the Federal Rules of Civil 

Procedure. 

Because Schneider was preforming discretionary functions while acting as an 

IRS agent investigation Hovid, Plaintiffs’ claims against him are barred by the 

doctrine of qualified immunity. Moreover, a finding that Plaintiffs’ constitutional 

rights were violated in this case would require a reversal of Hovind’s criminal 

sentence, which is not permitted under Abella, 63 F.3d at 1065. Accordingly, all 

claims against Schneider are barred by the doctrine of qualified immunity. 

V. Defendant Richey did not act under color of federal law and 

therefore allegations against him are not cognizable under Bivens. 

Plaintiffs also names Hovind’s former defense attorney, Alan Stuart Richey, 

as a Defendant in this case. The Second Amended Complaint is unclear as to 

whether Richey is being sued in his private attorney or as a public attorney for the 

state of Washington. In either case, however, Richey is immune from §1983 liability 

as Plaintiff’s privately-hired defense attorney because he was not acting under color 

of state law. 

The Eleventh Circuit has dismissed §1983 claims against defendants who 

worked for private companies. See Charles v. Scarberry, 340 Fed. App’x 597, 599 

(11th Cir. 2009) (affirming dismissal of a § 1983 claim against CVS employees and 

an insurance adjuster because they could not act under color of state law as private 

employees). Likewise, the Eleventh Circuit has dismissed § 1983 claims against 
11

government employees whose alleged violations were outside of the color of 

governmental authority. See Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 

1269 (11th Cir. 2012) (dismissing § 1983 claims against corrections officer who 

found boy naked with daughter because the officer did not act “under color of state 

law”). The Court limited a violation under color of state law to “[a] § 1983 defendant 

who abuses the power and authority given to her by the state.” Id. at 1268. A 

government employee who violates the law in his private pursuits, without using the 

perceived power of his office, is not actionable under 1983. 

In this case, Richey was acting Hovind’s private attorney. As such, Richey 

was not acting under color of state or federal law and is not liable under Bivens or 

§1983 and the claims against him are due to dismissed. 

VI. Bivens claims may not be brought against the United States. 

 Plaintiffs are left with their claim against the United States for constitutional 

violations. The Supreme Court, however, has held that federal entities may not be 

sued under a Bivens claim. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994). While this 

opinion concerned federal agencies, namely the F.D.I.C., the Court’s reasoning can 

be logically inferred to apply to suits against the United States. In Meyer, the 

defendant sought to sue the F.D.I.C. directly because the individuals named each 

were protected by qualified immunity. Id. at 485. The Supreme Court reasoned that 

circumventing qualified immunity would eliminate the Bivens purpose of deterring 
12

individual officers from illegal conduct, as there would then be no reason to bring 

damages actions against individuals. Id. The United States cannot be sued as an 

entity in a Bivens action. Additionally, as a §1983 action derives from state law, it 

follows that such an action cannot be brought against the United States as a whole. 

Accordingly, Plaintiffs’ claims against the United States are due to be dismissed. 

VII. Plaintiff’s claims are barred by the statute of limitations. 

Bivens actions are governed by the same statute of limitations that governs a 

complaint brought pursuant to 42 U.S.C. § 1983. Kelly v. Serna, 87 F.3d 1235, 1238 

(11th Cir. 1996). The limitations period for a § 1983 action is governed by the statute 

of limitations for personal injury actions in the state in which the claim accrues. See 

Wilson v. Garcia, 471 U.S. 261, 280, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). The 

Eleventh Circuit has consistently held that Florida's four year statute of limitations, 

Fla. Stat. § 95.11(3), for personal injury actions governs federal § 1983 claims 

brought in Florida. City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1103 (11th Cir. 

2002) ("[s]ection 1983 claims are governed by the forum state's residual personal 

injury statute of limitations, which in Florida is four years"); Omar v. Lindsey, 334 

F.3d 1246, 1251 (11th Cir. 2003) (per curiam) ("[t]he applicable statute of 

limitations in a § 1983 lawsuit is the four-year Florida state statute of limitations for 

personal injuries"). The same 4-year statute of limitations also applies to claims 

under Bivens. See Rager v. Augustine, 760 F. App'x 947, 950 (11th Cir. 2019) (citing 
13

Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998) (noting that federal district 

courts apply their forum state's personal injury statute of limitations to both Bivens 

and 42 U.S.C. § 1983 actions) and Chappell, 340 F.3d at 1283). 

A cause of action accrues, and thereby sets the limitations clock running, when 

“the facts which would support a cause of action are apparent or should be apparent” 

to a reasonably prudent person. Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 

1259, 1261 (11th Cir. 2003) (quotation omitted). Generally, this will be at the point 

at which the plaintiff knew or had reason to know that an injury had been inflicted 

and by whom. Rozar v. Mullis, 85 F.3d 556, 562 (11th Cir. 1996). In those cases in 

which the statute of limitations had expired prior to filing, a dismissal for frivolity is 

warranted and the court need not wait for the limitations issue to be raised in a 

defensive pleading if the issue is apparent on the face of the complaint. Clark v. Ga. 

Pardons & Paroles Bd., 915 F.2d 636, 640-41 n.2 (11th Cir.1990). 

 All of Plaintiffs’ arise out of his arrest and conviction of tax crimes in 2006. 

Plaintiffs have known about the incidents giving rise to their claims since 2006. 

Accordingly, all of their claims are barred by the statute of limitations. 

CONCLUSION

Plaintiffs’ claims alleged in this action are entirely without merit and should 

be dismissed promptly. First, declaratory relief is not available as a Bivens or § 1983 

remedy. Additionally, Plaintiffs’ claims for damages lack standing since without a 
14

reversal of his conviction, this claim is not ripe. In addition, each individually named 

Defendant is without liability in this action for the reason set forth above. Finally, 

all of Plaintiffs’ claims are barred by the statute of limitations. Plaintiffs have failed 

to state a claim for which this Court may grant relief, and Defendants are entitled to 

prompt dismissal of this case pursuant to Fed. R. Civ. P. 12(b)(6). 

 

Respectfully submitted, 

 LAWRENCE KEEFE 

 United States Attorney 

 

 /s/ Elizabeth Barry Parker 

 ELIZABETH BARRY PARKER 

 Assistant United States Attorney 

 Alabama Bar No. 4558k69b 

 21 East Garden St., Suite 400 

 Pensacola, FL 32502 

 Telephone: 850-444-4000 

 Elizabeth.Parker@usdoj.gov 

 
15

LOCAL RULE 7.1(B) CERTIFICATE 

I HEREBY CERTIFY that I have not conferred with plaintiffs regarding this 

motion. Plaintiffs do not consent to this motion. 

LOCAL RULE 7.1(F) CERTIFICATE 

I HEREBY CERTIFY that this memorandum contains 2,933 words per 

Microsoft Word’s word count, which complies with the word limit requirements 

set forth in Local Rule 7.1(F). 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that the foregoing was filed electronically, this 06th day 

of January 2021, via CM/ECF. A copy of this pleading was also mailed to plaintiffs 

Kent E. Hovind and Paul John Hansen at Hovind’s home address of 488 Pearl Lane, 

Repton, Alabama 36475 via certified mail. 

 /s/ Elizabeth Barry Parker 

 ELIZABETH BARRY PARKER 

 Assistant United States Attorney