UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIM TREVINO,

Plaintiff,

v.

JANE KELLY, BURKE CASTLEBERRY,

ESCOTT, RINEY AND JACOB PIFER,

Defendants.

_____________________________________/

Case No. 14-14376

David M. Lawson

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

DEFENDANTS’ MOTION TO DISMISS (Dkt. 38) and

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. 50)

I. PROCEDURAL HISTORY

Plaintiff, a prisoner in the custody of the State of Michigan, filed the pro se

civil rights complaint against a variety of government officials involved in his

arrest and prosecution. (Dkt. 1). District Judge David M. Lawson referred this 1

matter to the undersigned magistrate judge for all pretrial proceedings. (Dkt. 25). 

On June 21, 2016, defendants Castleberry and Pifer filed a motion to dismiss the

complaint based on immunity and failure to state a claim. (Dkt. 38). Plaintiff filed

a response on July 7, 2016 and defendants filed their reply on July 27, 2016. (Dkt.

42, 44). Defendant Riney filed a motion for summary judgment on October 17,

 Plaintiff’s amended complaint, which is the controlling complaint in this matter, can be 1

found at Docket Entry 17.

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2016, which has also been fully briefed. (Dkt. 50, 57, 60). These matters are now

ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that

defendants’ motion to dismiss be GRANTED as to plaintiff’s excessive force

claim (against all defendants) and that the remainder of plaintiff’s claims (against

all defendants) be DISMISSED without prejudice under the Heck v. Humphrey

doctrine. The undersigned further RECOMMENDS that the pending motion for

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summary judgment be TERMINATED as moot, given the foregoing resolution of

all pending claims against all defendants.3

II. FACTUAL BACKGROUND

In his amended complaint, plaintiff alleges that on August 24, 2012,

Blissfield Police Chief Jane Kelly entered into his home with defendants Pifer,

 Notably, the Court has the authority under 28 U.S.C. § 1915(e)(2) to dismiss an action 2

sua sponte where, as here, plaintiff proceeds in forma pauperis. Denton v. Hernandez, 504 U.S.

25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 324 (1989). “When a prisoner’s civil rights

claim is barred by the Heck v. Humphrey doctrine, the appropriate course for a federal district

court is to dismiss the claim for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.

12(h)(3), rather than to dismiss the complaint with prejudice as being frivolous, because the

former course of action is not an adjudication on the merits and would allow the prisoner to

reassert his claims if his conviction or sentence is later invalidated.” Rodriguez v. McCarthy,

2016 WL 6155802, at *3 (E.D. Mich. Oct. 24, 2016) (citing Murphy v. Martin, 343 F.Supp.2d

603, 609 (E.D. Mich. 2004)).

Given the conclusion that all claims are barred by Heck v. Humphrey, except plaintiff’s 3

excessive force claim, the undersigned suggests that it is not necessary to address defendant

Castleberry’s assertion that he is entitled to absolute prosecutorial immunity or whether

plaintiff’s claims against him fall within the category of “‘investigative’ or ‘administrative’ acts,”

for which there is no absolute immunity. See Burns v. Reed, 500 U.S. 478, 483 n.2, 486 (1991);

see also Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003). 

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Escott, and Riney, acting in concert with defendant Castleberry without a search

warrant. (Dkt. 17, Pg ID 62-63). Plaintiff also alleges that he was arrested and his

person was searched in his home without a warrant. He further asserts that he was

tasered and suffered physical and emotional injury as a result. Plaintiff claims the

defendants violated the Fourth, Fifth, Eighth, and Fourteenth Amendments under

the United States Constitution. Id. Plaintiff requests that defendants be held liable

for money damages, including compensatory, emotional distress damages, and

punitive damages for their actions in entering his home without a search warrant,

tasering him, and illegally arresting him. (Dkt. 17, Pg ID 62).

III. DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first

comply with Rule 8(a)(2), which requires “‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the ... claim is and the grounds upon which it rests.’” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)). The United States Supreme Court raised the bar for

pleading requirements beyond the old “no-set-of-facts” standard of Conley v.

Gibson, 355 U.S. 41, 78 (1957), that had prevailed for the last few decades. 

Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009) (citing

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Twombly, 550 U.S. at 555. 

In Iqbal, the Supreme Court explained that a civil complaint only survives a

motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. The

Sixth Circuit observed that this new standard is designed to screen out cases that,

while not utterly impossible, are “implausible.” Courie, 577 F.3d at 629. “A

claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. And although the Court must accept

all well-pleaded factual allegations in the complaint as true, it need not “‘accept as

true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at

555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Iqbal, 556

U.S. at 678. The Sixth Circuit noted that “[e]xactly how implausible is

‘implausible’ remains to be seen, as such a malleable standard will have to be

worked out in practice.” Courie, 577 F.3d at 629. 

Where a plaintiff is proceeding without the assistance of counsel, the court

is required to liberally construe the complaint and hold it to a less stringent

standard than a similar pleading drafted by an attorney. See e.g. Simmons v.

Caruso, 2009 WL 2922046, at *4 (E.D. Mich. Sept. 8, 2009) (citing Haines v.

Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir.

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1999)). Thus, the Court must read plaintiff’s pro se complaint indulgently and

accept plaintiff’s allegations as true, unless they are clearly irrational or wholly

incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Erickson v. Pardus, 551

U.S. 89, 94 (2007) (finding that the Court of Appeals improperly departed “from

the liberal pleading standards set forth by Rule 8(a)(2)” and failed to “liberally

construe” the pro se complaint at issue).

B. Heck v. Humphrey

The doctrine set forth in Heck v. Humphrey precludes the court from

recognizing plaintiff’s constitutional claims against all defendants (save the

excessive force claim, which is discussed separately below) because plaintiff has

not alleged or achieved a favorable termination of his conviction. Sykes v.

Anderson, 625 F.3d 294, 305 (6th Cir. 2010). The Heck v. Humphrey doctrine is

applicable and requires the following:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff

must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.

Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010) (citing Heck v. Humphrey,

512 U.S. 477, 484 (1994)). In Heck, the Supreme Court held that actions premised

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on § 1983 require the final adjudication of the criminal proceeding to be decided

in the favor of the accused in order to prevent the possibility of contradictory

resolutions of a claimant from succeeding in a tort action, yet being convicted in

the criminal action. Heck, 512 U.S. at 484. Essentially, “a claim of damages

bearing that relationship to a conviction or sentence [that] has not been so

invalidated is not cognizable under § 1983. Id. at 487. As explained by the

Supreme Court, permitting a § 1983 action that necessarily requires the plaintiff to

prove the unlawfulness of his conviction or confinement, would contravene the

strong judicial policy against the creation of two conflicting resolutions arising out

of the same or identical transaction. Id. The Heck court stated as follows:

We hold that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff

must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make

such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus, 28 U.S.C.

§ 2254.

512 U.S. at 486-87. 

Heck makes clear that any § 1983 claims for an unconstitutional conviction,

arrest or imprisonment are barred unless and until the underlying conviction is set

aside. The Heck doctrine applies equally to plaintiff’s claims for unlawful search

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and seizure. Indeed, this case involves facts similar to those presented in Fox v.

Michigan State Police Dep’t, 173 Fed. Appx. 372, 373-74 (6th Cir. 2006):

On July 3, 2001, Michigan State Police officers went to

Fox’s home, in response to an alleged violation of a

Michigan state court personal protection order. Lynn

Fox, the appellant's wife, had obtained the personal

protection order against Fox in favor of herself and her

children following an alleged incident of domestic

assault. Upon arrival at the Fox home, officers Nate

McGuire and Mark Hagerman found Jamie Fox outside

the home. McGuire and Hagerman noticed that Fox was

carrying a knife on his side. They searched Fox and his

vehicle and arrested Fox. Fox was charged with one

count each of domestic violence, absconding, possession

of a mechanical contrivance (switchblade), possession of

an unregistered firearm, and carrying a concealed

weapon. Fox reached a plea agreement with the

prosecutor in which he agreed to plead guilty to domestic

violence and possession of a mechanical contrivance

(switchblade) in exchange for the dismissal of all other

charges. Fox entered his guilty plea on August 22, 2001.

The Sixth Circuit concluded that the plaintiff’s claim that he was unlawfully

searched was barred by Heck v. Humphrey because a finding in favor of the

plaintiff on his claim that defendants unlawfully searched his person would

“necessarily imply the invalidity of his conviction” for possession of a

switchblade. Id. at 377 (quoting Heck, 512 U.S. at 487); see also Schilling v.

White, 58 F.3d 1081, 1086 (6th Cir. 1995) (“The language of Heck plainly refutes

the argument that Fourth Amendment claims are exempted from the requirement

that a conviction must be set aside as a precondition for this type of § 1983 suit.”).

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Here, plaintiff is challenging the role that each of the defendants played in his

alleged false arrest, unlawful search and seizure, and false imprisonment based on

the defendants’ allegedly “unconstitutional” actions. However, plaintiff has not

alleged that there has been a final adjudication of his conviction decided in his

favor. As such, plaintiff’s claims are not properly cognizable under 42 U.S.C.

§ 1983. See Heck, 512 U.S. at 486-87. For these reasons, the undersigned

recommends the dismissal of plaintiff’s claims against all defendants, except for

the excessive force claim, as barred by Heck v. Humphrey. 

C. Excessive Force Claim

Nothing in the current record suggests that plaintiff was convicted of

resisting arrest. Thus, plaintiff’s claim for excessive force does not appear to

implicate the validity of his conviction or sentence and is not subject to the Heck

doctrine. See Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000) (“In general, the

federal courts hold that Eighth Amendment claims do not run afoul of Heck

because the question of the degree of force used by a police or corrections officer

is analytically distinct from the question whether the plaintiff violated the law.”);

Hayward v. Cleveland Clinic Foundation, 759 F.3d 601, 609-14 (6th Cir. 2014)

(holding that Heck barred the plaintiff’s civil rights action that police used

excessive force in making an arrest where the plaintiff was convicted of resisting

arrest based on the same underlying exercise of force). Defendant Pifer contends

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that it should nevertheless be dismissed because the complaint fails to specifically

allege which, if any, officer tasered him. In particular, Pifer maintains that

plaintiff failed to allege that Pifer tasered him and failed to allege that any force

was used on plaintiff by Pifer, which is required for a claim of excessive force. 

Thus, defendant Pifer maintains that plaintiff has failed to allege a claim for

excessive force in violation of the Fourth Amendment against him and he is

entitled to qualified immunity. Pifer also argues that even if he is not entitled to

qualified immunity, plaintiff has failed to allege claims for excessive force against

him. Thus, according to Pifer, such claims should be dismissed.

In his response, plaintiff does not specifically address the excessive force

claim asserted against Pifer. Rather, he merely claims that defendants are not

entitled to immunity and that Pifer violated plaintiff’s constitutional rights by

acting without a search warrant or a showing of probable cause. (Dkt. 42, Pg ID

212-213). While it is “generally inappropriate for a district court to grant a Rule

12(b)(6) motion to dismiss on the basis of qualified immunity,” Wesley v.

Campbell, 779 F.3d 421, 433 (6th Cir. 2015), here, despite filing a responsive

brief, plaintiff has simply failed to address the merits of the motion to dismiss the

excessive force claim by Pifer. It is also within the discretion of the district court

to determine whether a party has forfeited an argument by failing to raise it. 

Kentucky Mist Moonshine, Inc. v. University of Kentucky, — F.Supp.3d —; 2016

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WL 3546319, *7 n. 5 (E.D. Ky. 2016) (citing Horn v. City of Mackinac Island,

938 F.Supp.2d 712, 723 n. 8 (W.D. Mich. 2013)). Dismissal of the excessive

force claim as to defendant Pifer is appropriate on this basis alone.

Moreover, even if the merits of plaintiff’s excessive force claim against

Pifer and the other defendants are considered, plaintiff simply fails to state an

excessive force claim. In order to hold a defendant liable in his individual

capacity under § 1983, a plaintiff must show that the particular defendant was

personally involved in the alleged constitutional deprivation(s). Mhoon v.

Metropolitan Government of Nashville & Davidson Co., Tenn., 2016 WL

6250379, *3 (M.D. Tenn. 2016) (citing Heyerman v. Cnty. of Calhoun, 680 F.3d

642, 647 (6th Cir. 2012) (“Persons sued in their individual capacities under § 1983

can be held liable based only on their own unconstitutional behavior.”)). The

present complaint is similar to that found deficient under Rule 12(b)(6) in Mhoon,

where the excessive force and deliberate indifference allegations failed to indicate

whether and how each individual defendant was involved in the use of excessive

force. In Mhoon, the plaintiff used a generic reference to “defendants,” without

specifying which defendants were involved, “even where it is clear that not all of

them could have been involved.” Id. at *3. The court concluded that this “form of

group pleading” was insufficient to establish that any one of the defendants acted

in an unconstitutional manner. Id. (citing Rodriguez v. Providence Cmty. Corrs.,

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Inc., 2016 WL 3351944, at *11 (M.D. Tenn. 2016) (“A complaint that fails to

impute concrete acts to specific litigants, fails to state a plausible claim.” (internal

quotation marks and citations omitted)); DeSoto v. Metro. Gov’t of Nashville &

Davidson County, 64 F. Supp. 3d 1070, 1087 (M.D. Tenn. 2014) (“Here, [the]

Amended Complaint in general alleges claims against ‘the defendants,’ without

specifying which defendants are the actual target of certain claims, what actions

those defendants allegedly took related to that particular claim, and why those

actions could support a given claim.”)). 

In this case, plaintiff generically alleges that “defendants” used excessive

force by tasering him. He does not, however specify which defendant used a taser. 

The complaint does not connect the personal involvement of any particular

defendant to the alleged use of excessive force. Thus, there is no reasonable way 4

to discern which defendant allegedly used excessive force against plaintiff and the

claim. As a consequence, plaintiff’s excessive force is properly dismissed under

Rule 12(b)(6) as to all defendants.

 As the court observed in Bruce v. Smith, 2014 WL 3928294, *5 (S.D. Ohio 2014), 4

“personal involvement does not necessarily mean direct involvement; an official can be liable for

encouraging another to commit an unconstitutional act or failing to intervene after personally

observing another violating an individual’s constitutional rights.” (Citing Belamy v. Bradley,

729 F.2d 416, 421 (6th Cir. 1984) (recognizing that a supervisor can be liable for the acts of his

employees if he encouraged or otherwise participated in the specific incident of misconduct);

Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (noting that official could be liable for failing

to intervene if he observed or had reason to know that excessive force was being used by another

officer)). However, nothing in plaintiff’s amended complaint, as currently written, articulates

such a theory for his excessive force claim.

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IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

defendants’ motion to dismiss be GRANTED as to plaintiff’s excessive force

claim (against all defendants) and that the remainder of plaintiff’s claims (against

all defendants) be DISMISSED without prejudice under the Heck v. Humphrey

doctrine. The undersigned further RECOMMENDS that the pending motion for

summary judgment be TERMINATED as moot, given the foregoing resolution of

all pending claims against all defendants.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and E.D. Mich. Local

Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health

and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

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Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. Local

Rule 72.1(d). The response must specifically address each issue raised in the

objections, in the same order, and labeled as “Response to Objection No. 1,”

“Response to Objection No. 2,” etc. If the Court determines that any objections

are without merit, it may rule without awaiting the response.

Date: February 14, 2017 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on February 14, 2017, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by U.S. Postal Service

to the following non-ECF participant: Tim Trevino #190370, Cooper Street

Correctional Facility, 3100 Cooper Street, Jackson, MI 49201.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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