Report and Recommendation

Motions to Dismiss

1 Salaam-el v. City of Dearborn; 09-12136

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALI SALAAM EL, Case No. 09-12136

Plaintiff, David M. Lawson

vs. United States District Judge

CITY OF DEARBORN, DEARBORN Michael Hluchaniuk

POLICE, 19th DISTRICT COURT, United States Magistrate Judge

ALFRED GRZEGOREK # 435,WILLIAM 

C. HULTGREN, SCOTT NAGY, 

WILLIAM M. DEBIASI, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

DEFENDANTS’ MOTIONS TO DISMISS (Dkt. 3, 8)

I. PROCEDURAL HISTORY

Plaintiff filed this civil rights action on June 3, 2009. (Dkt. 1). This matter

was referred to the undersigned for all pretrial purposes by District Judge David M.

Lawson. (Dkt. 2). Two defendants filed a motion to dismiss on July 7, 2009. 

(Dkt. 3). Two other defendants filed an answer to the complaint on July 8, 2009,

along with a motion to dismiss. (Dkt. 6, 8). On August 3, 2009, plaintiff filed an

amended complaint, along with a response to the first motion to dismiss. (Dkt. 11). 

The Court ordered plaintiff’s amended complaint stricken. (Dkt. 22). Plaintiff filed

a response to the second motion to dismiss on September 10, 2009. (Dkt. 19). 

Defendants’ motions to dismiss are now ready for report and recommendation. 

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For the reasons set forth below, the undersigned RECOMMENDS that

defendants’ motions to dismiss be GRANTED and that plaintiff’s complaint be

DISMISSED with prejudice.

II. PLAINTIFF’S COMPLAINT

Plaintiff complains that he was stopped by a City of Dearborn police office

on November 9, 2008 for speeding. He presented his “nationality card” and his

“international road travel card” to the office. Plaintiff alleges that, without

authority, the police officer, under color of state law, proceeded to violate his

constitutional rights. Plaintiff further alleges that the office kidnaped him under

threat of injury, violating 18 U.S.C. § 241. 

Plaintiff alleges a “conspiracy” to violate his constitutional rights among the

officer, the prosecutor, the state court judge, and the Nineteenth District Court. 

Plaintiff claims that because the officer was given proof of plaintiff’s status as a

“Moorish national” and was given his international road travel card, every act after

that was a “willful violation” of plaintiff’s constitutional rights but international,

human, and rights of indigenous people. Plaintiff claims that the officer and the

state court judge willfully perjured themselves with respect to the warrant. Based

on this action, according to plaintiff, police officer Scott Nagy then conspired to

violate plaintiff’s constitutional rights by assaulting him with intent to do great

bodily harm. This caused the prosecutor, defendant William Debiasi to “perjure

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his oath” and continue the conspiracy to violate plaintiff’s constitutional rights. 

According to plaintiff, the prosecutor is conspiring with the state court, using the

United States Postal Service, to extort money from plaintiff. Finally, according to

plaintiff, defendants were aware of his Moorish nationality status, which is

registered with the Library of Congress and is recognized by the United States

Department of Justice. Plaintiff attaches an “affidavit of fact,” which appears to be

his declaration of rights secured under the Treaty between the Unites States and

Morocco, several claims of copyright, a “Moorish Birth Rigths [sic] Great Seal

Zodiac Constitution,” and his “Moorish National” identification card. 

III. PARTIES’ ARGUMENTS

A. Defendants District Court and Judge Hultgren

Defendants assert that plaintiff’s complaint is, on its face, totally

implausible, frivolous, and devoid of merit and, thus, subject to summary

dismissal. They argue that plaintiff’s complaint fails to adequately identify any

rights that were violated. Further, defendants argue that the complaint relies,

without foundation in proper authority, on a theory that plaintiff’s Moorish

nationality confers on him some special protection under the law. Accordingly,

defendants assert that plaintiff’s complaint is frivolous because it lacks an arguable

basis in law or in fact and because its allegations are clearly baseless, fantastic or

delusional.

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In the alternative, defendants argue that the Court should find that the

complaint fails to state a claim against Judge Hultgren or Nineteenth District Court

because it fails to identify any specific federal right that was violated and the

allegations are conclusory and vague. Defendants acknowledge that plaintiff

mentions the Fifth and Fourteenth Amendments, but argue that plaintiff’s

complaint fails to identify which substantive right under either amendment is

implicated. To state a constitutional claim via 42 U.S.C. § 1983, a plaintiff must

first allege a violation of a right secured by the federal constitution or laws;

according to defendants, plaintiff has failed to meet that threshold element.

Defendants also state that plaintiff has also failed to provide meaningful notice

regarding how any of his rights were violated under color of law. Plaintiff merely

alleges that Judge Hultgren signed a warrant and that Nineteenth District Court is

conspiring to extort money from plaintiff. Without more, according to defendants,

plaintiff cannot meet the minimum requirements of Federal Rule of Civil

Procedure 8, which requires a short and plain statement of (1) the Court’s

jurisdiction, (2) a claim showing that plaintiff is entitled to relief and (3) a demand

for relief sought. Defendants urge the Court to conclude that all three are missing

from plaintiff’s complaint.

Defendants also argue that even if plaintiff adequately pleaded a cause of

action, it must fail under applicable immunity doctrine. Judge Hultgren is entitled

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to absolute immunity for his judicial acts given that the conduct alleged – signing a

warrant – is a judicial act. Accordingly, judicial immunity shields Judge Hultgren

from any claim by plaintiff. Similarly, the District Court, as an arm of the State of

Michigan, is entitled to sovereign immunity and is not amenable to any damages

claim by plaintiff. Further, there is no indication in the complaint that such relief

would address the narrow exception for prospective relief against any ongoing

violation of federal law. Accordingly, defendant concludes that plaintiff did not

plead any claim in avoidance of immunity that protects the District Court from suit.

B. City of Dearborn Defendants

The City of Dearborn defendants first argue that the Court lacks subject

matter jurisdiction and should, therefore, dismiss plaintiff’s complaint. The City of

Dearborn defendants argue that plaintiff’s complaint is, at best, devoid of any

arguable merit and, at worst, frivolous. Plaintiff’s complaint describes a traffic

stop, arrest, and prosecution – not a kidnaping and fails to allege a single specific

constitutional right that was violated. Defendants also point out that plaintiff also

rests his claims on authorities such as the Zodiac Constitution, which the Eastern

District of Michigan has identified as an irrelevant authority. Plaintiff appears to

claim a general immunity to the laws of the United States – while concurrently

seeking their protection – based on his purported status as a Moorish national, but

defendants argue that he does not base this claim on any recognized legal authority. 

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Thus, according to defendants, plaintiff’s claims are implausible, attenuated,

frivolous, and devoid of merit, and this Court should dismiss the case for lack of

subject matter jurisdiction.

In the alternative, the City of Dearborn defendants argue that plaintiff’s

complaint must be dismissed because it is woefully deficient and it does not

conform to the applicable court rules, and even when liberally construed in

plaintiff’s favor, it does not state a claim on which relief can be granted against

defendants. Specifically, they argue that plaintiff’s complaint fails to link a single

factual or legal allegation to the Dearborn Police Department and thus, there is

nothing in plaintiff’s complaint on which even speculation could be based as to the

claim plaintiff is asserting against the Dearborn Police Department. Moreover,

defendant argues that the Sixth Circuit has held that police departments are not

proper defendants under 42 U.S.C. § 1983, as they are merely sub-units of the

municipal government. Sargent v. Toledo Police Department, 150 Fed.Appx. 470,

475 (6th Cir. 2005). Thus, defendants argue, the complaint against the Dearborn

Police Department should be dismissed without further inquiry.

Defendants also argue that the complaint fails to identify any federal right

that has been violated by defendants. While plaintiff refers to the Fifth and

Fourteenth Amendments, he does not state a specific cause of action under those

amendments. The Sixth Circuit has held that a civil rights claim brought under 42

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U.S.C. § 1983 cannot survive where it merely sets forth conclusory allegations of

unconstitutional conduct in lieu of specific factual allegations. Lillard v. Shelby

County Bd. of Education, 76 F.3d 716, 726 (6th Cir. 1996). Thus, the plaintiff

must allege a specific factual basis in support of an allegation of unconstitutional

conduct. Id. Defendants argue that plaintiff merely alleges violations of

constitutional rights, without any facts to specifically identify what rights were

allegedly violated, or how they were allegedly violated. Defendants also argue that

plaintiff merely alleges a conspiracy, without any factual support to demonstrate

the conspiracy. See Willis v. New World Van Lines, Inc., 123 F. Supp. 2d 380, 400

(E.D. Mich. 2000) (There can be no actionable claim of civil conspiracy without an

unlawful act.). According to the Dearborn defendants, plaintiff has satisfied none

of these requirements, as he has not established the Court’s jurisdiction, stated a

claim, nor requested any relief.

Additionally, plaintiff has not asserted facts that would defeat the qualified

immunity of defendant Grzegorek. To overcome a defense of qualified immunity,

1) “the allegations must state a claim of the violation of clearly established law and

2) “a plaintiff must present evidence sufficient to create a genuine issue as to

whether the defendant in fact committed the acts that violated the law.” Secot v.

City of Sterling Heights, 985 F.Supp. 715, 720 (E.D. Mich. 1997). Defendants

argue that plaintiff has not identified a violation of clearly established law (indeed,

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he has not even identified the clearly established law he wishes to invoke), and

fails to plead a case that would avoid defendant Grzegorek’s qualified immunity.

C. Plaintiff

In his responses to the motions to dismiss, plaintiff asserts that the City of

Dearborn passed an ordinance that violated plaintiff’s constitutional right to travel

at his desired speed, which, according to plaintiff, violates the constitutional ban on

bills of attainder and ex post facto laws. In addition, the speed limit ordinance

violated plaintiff’s constitutional right to travel and constitutes a fraud under Title

18. Plaintiff further asserts that the traffic stop and arrest by defendant officer was

a kidnaping and the other defendants, through the issuance of the arrest warrant

and prosecution, participated in the conspiracy to kidnap plaintiff. Plaintiff also

asserts that Judge Hultgren signed a warrant for plaintiff to be assaulted by

placement of a foreign object into plaintiff’s body. (Dkt. 11, 19).

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1

 Overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

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IV. ANALYSIS

A. Subject Matter Jurisdiction

The court may not proceed to the merits of the case without first satisfying

itself that it has subject matter jurisdiction and that sovereign immunity does not

bar the action. See Galvan v. Federal Prison Industries, Inc., 199 F.3d 461 (D.C.

Cir. 1999). Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of

jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). When subject matter

jurisdiction is challenged pursuant to 12(b)(1), the plaintiff has the burden of

proving jurisdiction in order to survive the motion. Michigan S RR Co. v. Branch

& St. Joseph Counties Rail Users Ass’n Inc., 287 F.3d 568, 573 (6th Cir. 2002). A

Rule 12(b)(1) motion to dismiss an action for lack of subject matter jurisdiction

may be premised on a facial attack or a factual attack. Abdelkhaleq v. Precision

Door of Akron, 2008 WL 3980339, at *2 (N.D. Ohio 2008). A facial attack tests

the adequacy of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 235-37(1974),1

while a factual attack evaluates the actual existence of subject matter jurisdiction,

Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735, 739 (N.D. Ohio 1997). The

importance of this distinction has to do with the nature of the Court’s consideration

of the facts and allegations presented in connection with the Rule 12(b)(1) motion. 

If the motion presents a facial attack, the Court must construe the pleadings in the

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light most favorable to the plaintiff and may not consider extrinsic materials. 

Abdelkhaleq, 2008 WL 3980339 at *2, citing, United States v. Ritchie, 15 F.3d

592, 598 (6th Cir. 1994). In contrast, if the motion presents a factual attack, the

Court is free to consider extrinsic evidence and may weigh the evidence of its own

jurisdiction without affording the plaintiff the presumption of truthfulness that is

the hallmark of the Rule 12(b)(6) standard. Id.; Rogers v. Stratton Indus., Inc., 798

F.2d 913, 915 (6th Cir. 1986).

In this case, defendants make both a facial and a factual attack, albeit on

different grounds. First, defendants assert that plaintiff fails to identify any federal

cause of action in his complaint and that the mere mention that defendants violated

plaintiff’s “constitutional rights” and the “Fifth and Fourteenth Amendments” is

insufficient to raise federal question jurisdiction. The present circumstance is

similar to that before the court in Wittenstock v. Van Sile, Inc., 330 F.3d 899, 901-

902 (6th Cir. 2003), where the Sixth Circuit affirmed the district court’s decision to

“fairly read the Complaint as seeking to state a cause of action under § 1983”

where “the Complaint does not allege a basis for federal jurisdiction other than

reciting that ‘[t]his action arises under the due process clause of the Fifth and

Fourteenth Amendments to the Constitution of the United States.’” Construing

plaintiff’s complaint liberally, which the Court is obligated to do, the undersigned

suggests that plaintiff’s complaint, like the complaint in Wittenstock, could be

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fairly read as intending to proceed under 42 U.S.C. § 1983. Thus, the undersigned

suggests that plaintiff’s complaint should not be dismissed for failure to identify a

federal cause of action over which this Court has subject matter jurisdiction. 

The motion to dismiss for lack of subject matter jurisdiction also asserts a

factual attack because Judge Hultgren and the Nineteenth District Court argue that

they have not waived their sovereign immunity for the particular claims asserted

here. Banks v. United States, 2009 WL 805143, *4 (N.D. Ohio 2009), citing,

McKinley v. United States, 1991 WL 80848, *1 (S.D. Ohio 1991). The sovereign

immunity question under Rule 12(b)(1) is not whether the complaint adequately

sets forth a substantive claim under § 1983, but whether the Court has jurisdiction

to hear the causes of action the complaint asserts. Id.

Judge Hultgren contends that the allegations against him related to actions

he took during the course of his duties as a state employee and, therefore, in

essence, he is being sued in his official capacity. A suit against a public official in

their “official capacity” is a suit against the public entity that employs the public

official. Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008), citing Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989). In other words, as a state employee

sued in his official capacity, the suit is really against the State of Michigan and,

therefore, Judge Hultgren is entitled to immunity from suit pursuant to the

Eleventh Amendment and the doctrine of sovereign immunity. Likewise, the

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Nineteenth District Court asserts sovereign immunity as a subdivision of state

government.

“The States’ immunity from suits in federal court applies to claims against a

State by citizens of the same State as well as to claims by citizens of another

State.” Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). Among many

exceptions to this immunity, however, is that “[t]he immunity does not attach if the

lawsuit is not against the State or an ‘arm of the State.’” Id. State agencies in

particular present the issue of whether the suit is against an arm of the State.

“When suit is brought against a public agency or institution ... ‘the application of

[immunity] turns on whether said agency or institution can be characterized as an

arm or alter ego of the state, or whether it should be treated instead as a political

subdivision of the state.’” Hutsell v. Sayre, 5 F.3d 996, 1000 (6th Cir. 1993),

quoting, Hall v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 301 (6th Cir. 1984). 

The agency only enjoys immunity if it is an arm of the state, not just a political

subdivision. 

The Sixth Circuit has identified four factors to be examined in determining

whether an agency qualifies for sovereign immunity: (1) the potential liability of

the State for any judgment against the entity; (2) the language used by state statutes

and courts to refer to the entity, and the degree of state control and veto power over

the entity’s actions; (3) whether the board of the entity is appointed by state or

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local officials; and (4) whether the entity's functions fall within the traditional

purview of state or local government. Ernst, 427 F.3d at 359. It is noted by the

undersigned that this Court has previously determined that the “State of Michigan

is not potentially liable for judgments against a district court of the third class

which arise out of employment disputes.” Pucci v. Nineteenth Dist. Court, 565

F.Supp.2d 792, 805 (E.D. Mich. 2008). This case does not present an employment

dispute, and more significantly, the Sixth Circuit, after the Pucci decision, held that

the district court must undertake an analysis of each of the four factors set forth in

Ernst to determine whether a state district court is entitled to sovereign immunity. 

Barachkov v. 41B District Court, 311 Fed.Appx. 863 (6th Cir. 2009); see also

Dolan v. City of Ann Arbor, — F.Supp.2d —, 2009 WL 3492720 (E.D. Mich.

2009). In the present case, defendants have neither analyzed nor offered evidence

as to the four factors set forth in Ernst. The undersigned suggests that the motion

to dismiss based on sovereign immunity be denied.

B. Failure to State a Claim

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

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Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007), quoting, Conley v.

Gibson, 355 U.S. 41, 47 (1957). 

The Supreme Court recently 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 Products,

577 F.3d 625, 2009 WL 2497928, *2 (6th Cir. 2009), citing, Ashcroft v. Iqbal, —

U.S. —, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1949. The Sixth Circuit

observed that this new standard is designed to screen out cases that, while not

utterly impossible, are “implausible.” Courie, at *2. “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, 129 S.Ct. at 1949. 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, 129 S.Ct. at 1949. 

The Sixth Circuit noted that “[e]xactly how implausible is ‘implausible’ remains to

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be seen, as such a malleable standard will have to be worked out in practice.” 

Courie, *2. 

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

still 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 (E.D. Mich. 2009), citing, Haines v. Kerner, 404 U.S.

519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). 

Thus, the Court must still 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, 127 S.Ct. at

2200 (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.).

The undersigned agrees with the City of Dearborn defendants that the

Dearborn Police Department is not a proper defendant and should be dismissed for

this reason. Sargent v. Toledo Police Dep’t, 150 Fed.Appx. 470, 475 (6th Cir.

2005). The undersigned also suggests that plaintiff’s complaint is defective

because he merely alleges violations of constitutional rights, without any facts to

specifically identify what rights were allegedly violated, or how they were

allegedly violated. Similarly, he merely alleges a conspiracy, without any factual

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support to demonstrate the conspiracy. The Sixth Circuit has held that a civil

rights claim brought under 42 U.S.C. § 1983 cannot survive where it merely sets

forth conclusory allegations of unconstitutional conduct in lieu of specific factual

allegations. Lillard v. Shelby County Bd. of Education, 76 F.3d 716, 726 (6th Cir.

1996). Thus, the plaintiff must allege a specific factual basis in support of an

allegation of unconstitutional conduct. Id. 

Plaintiff has failed to do so and has failed to comply with the requirement in

Rule 8 that his pleading must contain a statement of a claim showing that he

entitled to relief and a demand for the relief sought. Plaintiff seeks no relief and

the undersigned is unable to discern any entitlement to relief in plaintiff’s

complaint. The authority on which plaintiff relies (the Zodiac Constitution and the

“international, human rights of indigenous people”) are not recognized by the

federal courts. The criminal statutes (Title 18 U.S.C. §§ 241, 242) plaintiff cites

simply do not provide for a civil remedy. The law is conclusively settled that a

court may not assume jurisdiction for a civil action under either statute as no

private cause of actions exists. Watson v. Devlin, 167 F. Supp. 638, 640 (E.D.

Mich. 1958) (no private cause of action exists under 18 U.S.C. § 241); Willing v.

Lake Orion Community Schools Bd. of Trustees, 924 F.Supp. 815, 818 (E.D. Mich.

1996); Moore v. Potter, 2002 WL 31096673 *2, citing, Robinson v. Overseas

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Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (no civil liability exists

pursuant to 18 U.S.C. § 242).

C. Frivolous Claims

A suit may be dismissed as frivolous when the plaintiff fails to present any

claim with an arguable or rational basis in law or fact. Neitzke v. Williams, 490

U.S. 319, 325 (1989); Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990).

Claims that lack an arguable or rational basis in law include claims for which the

defendants are clearly entitled to immunity and claims of infringement of a legal

interest which clearly does not exist; claims that lack an arguable or rational basis

in fact describe fantastic or delusional scenarios. Neitzke, 490 U.S. at 327-28;

Lawler, 898 F.2d at 1199; see also Great Seal Moorish Science Temple of Am., Inc.

v. New Jersey, 2005 WL 2396311, *1 (E.D. Pa. 2005) (dismissing plaintiffs’

complaint with prejudice where “the [c]omplaint makes no logical sense, inasmuch

as it is a random rendition bordering on a mish-mosh of legalese turned into

meaningless meanderings.”).

Plaintiff’s complaint appears to be premised on his assertion that he is

beyond the reach of ordinary state court jurisdiction because of his Moorish status.

The undersigned is unable to find any legitimate legal claims in plaintiff’s

complaint and his complaint contains no request for relief. The undersigned

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suggests that plaintiff’s complaint is frivolous and, in the alternative, should be

dismissed on this basis. See Neitzke, supra.

D. Immunity

Notably, a judge performing his or her judicial function is absolutely

immune from suit seeking monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10

(1991). An act is “judicial” if it is one normally performed by a judicial officer

and if the parties deal with the judge in his official capacity. Stump v. Sparkman,

435 U.S. 349, 360 (1978). It is clear that plaintiff’s cause of action with respect to

Judge Hultgren relates solely to actions that he took while acting as a judge

presiding over plaintiff’s traffic case. In Mireles, the Supreme Court held that a

judge is immune from suit for money damages except where the judge engages in

acts that are “nonjudicial [that is] actions not taken in the judge’s judicial capacity”

or where the judge engages in acts that are judicial in nature but are “taken in the

complete absence of all jurisdiction.” Id. at 11-12. Whether a judge’s action is

taken in his or her judicial capacity is determined by the “nature of the act itself,”

which is measured by “whether it is a function normally performed by a judge, and

to the expectations of the parties, i.e., whether they dealt with the judge in his

judicial capacity.” Id.; see also Stern v. Mascio, 262 F.3d 600, 607-08 (6th Cir.

2001).

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Whether legally correct or not, the signing of a search warrant by Judge

Hultgren was clearly undertaken in his judicial capacity in the course of presiding

over a case within his jurisdiction. Plaintiff does not contend otherwise. Under

these circumstances, Judge Hultgren is entitled to absolute immunity and plaintiff

has not stated a claim on which relief can be granted. In the alternative, it is,

therefore, recommended that the complaint, to the extent it seeks money damages

against Judge Hultgren, should be dismissed.

It is also well-established that prosecutors enjoy absolute immunity from

suits under § 1983 for conduct related to the initiation and presentation of the

government’s case. Imbler v. Pachtman, 424 U.S. 409, 420 (1976); Higgason v.

Stephens, 288 F.3d 868, 878 (6th Cir. 2002). To the extent that the prosecutor is

sued in his individual capacity, such action is barred by absolute prosecutorial

immunity. Here, any claim against defendant Debiasi for money damages in his

individual capacity is barred. Thus, in the alternative, the undersigned

recommends dismissal on this basis.

V. RECOMMENDATION

For these reasons, the undersigned RECOMMENDS that defendants’

motions to dismiss be GRANTED and that plaintiff’s complaint be DISMISSED

with prejudice. 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

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20 Salaam-el v. City of Dearborn; 09-12136

of service, as provided for in Federal Rule of Civil Procedure 72(b)(2). 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). Pursuant to Local Rule 72.1(d)(2), any objections

must be served on this Magistrate Judge.

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

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

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), Administrative Order

09-AO-042. 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: January 27, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

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21 Salaam-el v. City of Dearborn; 09-12136

CERTIFICATE OF SERVICE

I certify that on January 27, 2010, I electronically filed the foregoing paper

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

notification to: Laurie M. Ellerbrake and John G. Fedynsky, and I certify that I

have mailed by United States Postal Service the paper to the following non-ECF

participant: Ali Salaam El, P.O. Box 35562, Detroit, MI 48235.

s/Tammy Hallwood 

Case Manager

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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