UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEAN STANLEY HAZEL,

Plaintiff,

v.

ARNOLD HENRY KEGEBEIN, IRIS M.

LOPEZ, and the STATE OF MICHIGAN,

Defendants.

 /

Case No. 09-11384

Honorable Patrick J. Duggan

OPINION AND ORDER

At a session of said Court, held in the U.S.

District Courthouse, City of Detroit, County of

Wayne, State of Michigan, on August 11, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Dean Stanley Hazel (“Plaintiff”) filed this pro se civil rights complaint on April 13,

2009, alleging violations of his First, Fifth, and Fourteenth Amendment rights by Arnold

Kegebein, Iris Lopez, and the State of Michigan (collectively “defendants”). Plaintiff has

been granted leave to proceed without prepayment of the filing fee and costs for this

action. Presently before the Court is a Motion to Dismiss from the State of Michigan and

Lopez, as well as a Motion for an Extension of Time for Service by Plaintiff. The motion

to dismiss has been fully briefed and, pursuant to Eastern District of Michigan Local Rule

7.1(e)(2), the Court dispensed with oral argument on July 17, 2009. For the reasons set

forth below, the Court grants the motion to dismiss, denies the motion to extend time for

service, and dismisses the complaint.

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 1 of 13 Pg ID 97
1

Plaintiff asserts that, while he served his time for the uttering and publishing

conviction, he missed a trial date for an unrelated civil action that he had initiated in 1996

2

I. Facts and Procedural Background

The present action derives from Plaintiff’s belief that the United States Constitution

bars states from making anything but gold and silver coins as tender for debts. To

challenge the current state of affairs in regard to this issue, Plaintiff has been attempting

to pay for his Michigan driver’s license and vehicle registration renewals through various

mediums including un-coined silver and personal notes (two-party, non-commercial

instruments) since 1979. In that year, Plaintiff’s actions, along with the actions of other

like-minded individuals, resulted in the initiation of two civil suits in Michigan state

courts. Both suits, however, were dismissed with prejudice. In 1982 Plaintiff attempted

to re-initiate litigation by again paying for his driver’s license and vehicle registration

renewals with a personal note. This action did not ultimately result in litigation because

the State of Michigan never presented the note for payment.

Undeterred by the prior events, Plaintiff tendered yet another personal note as

partial payment for his 1997 driver’s license and vehicle registration renewals. Defendant

Arnold Kegebein, a former employee in the Financial Enforcement Division of the Office

of the Michigan Secretary of State, refused to accept the note and accused Plaintiff of

tendering a non-negotiable instrument. After failing to submit an otherwise acceptable

form of payment, Plaintiff was charged with and convicted of uttering and publishing a

false financial transaction device.1

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 2 of 13 Pg ID 98
regarding improper ballots. Because Plaintiff failed to appear at the trial, the civil action

was allegedly dismissed. Plaintiff claims to have previously declined a $4.5 million

default judgment in that case because he wanted to go to public trial.

2

For purposes of this motion, the Court assumes that Plaintiff accurately

summarized the writ’s contents and applicable dates. The Court notes, however, that

Plaintiff did not attach a copy of the writ to his complaint.

3

The 1997 conviction did not put an end to the litigation surrounding Plaintiff’s

driver’s license and vehicle registration renewals. In early 2002, Plaintiff initiated an

action for injunctive relief in Michigan state court wherein Plaintiff specifically sought a

writ of mandamus ordering the State of Michigan to issue him a valid driver’s license. 

Defendant Lopez, an Assistant Attorney General for the State of Michigan, represented

Michigan in this civil action. Ultimately, Judge Michael LaBeau of the Monroe County

Circuit Court issued the writ in Plaintiff’s favor, ordering that the Michigan Secretary of

State issue Plaintiff a valid driver’s license through April 12, 2006.2

 Plaintiff alleges that,

after the court proceeding in which Judge LeBeau issued the writ, Lopez indicated that

the litigation “would not stop there.” (Compl. ¶ 18.) Lopez stated that she would pursue

the matter as far as it could go. Nonetheless, Plaintiff obtained a valid driver’s license the

same day the writ was issued and the State did not appeal the order.

Four years later, Plaintiff alleges that Lopez’s “threats” materialized. On April 12,

2006, the final day of the writ’s enforcement period, Plaintiff was arrested for operating a

motor vehicle in Michigan without a valid license. Plaintiff alleges that Kegebein, acting

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 3 of 13 Pg ID 99
4

in conspiracy with Lopez, unlawfully cancelled his driver’s license in violation of the writ

of mandamus. In response to these acts, Plaintiff filed the present suit.

In his April 13, 2009, complaint, Plaintiff presents three claims. In count I, Plaintiff

alleges that the cancellation of his driver’s license in violation of the writ of mandamus

violated his constitutional due process, property, and equal protection rights. In count II,

Plaintiff alleges a civil rights conspiracy between Kegebein and Lopez to violate the

aforementioned rights by cancelling his driver’s license. In count III, Plaintiff alleges

First Amendment retaliation based on the events that led to the mandamus proceeding. It

is in the context of this last claim that Plaintiff details his litigation history in Michigan,

placing particular emphasis on his 1997 conviction and Kegebein’s role therein. All three

claims are brought pursuant to 42 U.S.C. § 1983 and, in all three claims, Plaintiff seeks

compensatory and punitive damages along with fees, interest, and costs.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78

F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a

pleading must contain a “short and plain statement of the claim showing that the pleader

is entitled to relief.” To survive a motion to dismiss, a complaint need not contain

“detailed factual allegations,” but it must contain more than “labels and conclusions” or

“a formulaic recitation of the elements of a cause of action . . . .” Bell Atlantic Corp. v.

Twombly, 550 U.S. 555, 570, 127 S. Ct. 1955, 1964-65 (2007). A complaint does not

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 4 of 13 Pg ID 100
5

“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Ashcroft

v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557,

127 S. Ct at 1966).

As the Supreme Court recently provided in Iqbal, “[t]o survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at

1974). “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.” Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). The

plausibility standard “does not impose a probability requirement at the pleading stage; it

simply calls for enough fact to raise a reasonable expectation that discovery will reveal

evidence of illegal [conduct].” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.

In deciding whether the plaintiff has set forth a “plausible” claim, the court must

accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus,

551 U.S. 89, 127 S. Ct. 2197, 2200 (2007). This presumption, however, is not applicable

to legal conclusions. Iqbal, 129 S. Ct. at 1949. Therefore, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” 

Id. (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65). Ultimately, “[d]etermining

whether a complaint states a plausible claim for relief will . . . be a context-specific task

that requires the reviewing court to draw on its judicial experience and common sense.” 

Id. at 1950.

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 5 of 13 Pg ID 101
3

Although the text of the Eleventh Amendment refers explicitly to suits

“commenced or prosecuted . . . by Citizens of another State,” U.S. Const. amend XI, “the

doctrine of sovereign immunity categorically prohibits such suits against a state by one of

its own citizens.” Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007).

4

Plaintiff opposes this Eleventh Amendment argument by citing to the legal theory

regarding municipal liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct.

2018 (1978). This theory, however, does not apply to state governments and entities that

6

III. Eleventh Amendment Immunity

The State of Michigan and Lopez argue that Plaintiff’s claims are barred, in part, by

the Eleventh Amendment. “The Eleventh Amendment generally bars suits by citizens of

a state against a state in federal court.”3

 League of Women Voters of Ohio v. Brunner,

548 F.3d 463, 474 (6th Cir. 2008). Furthermore, “a suit against a state official in his or

her official capacity is not a suit against the official but rather is a suit against the

official’s office. . . . As such, it is no different from a suit against the State itself.” Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2311 (1989). And while

there is “an exception to Eleventh Amendment immunity for claims for injunctive relief

against individual state officials in their official capacities,” Carten v. Kent State

University, 282 F.3d 391, 395 (6th Cir. 2002), there is no similar exception for damages

claims. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). 

In this case, Plaintiff seeks damages from the State of Michigan and the individual

defendants in both their individual and official capacities. Because there is no evidence

that Michigan consented to this suit, the Eleventh Amendment bars Plaintiff’s claims

against the state and Michigan is entitled to dismissal.4

 Furthermore, to the extent that

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 6 of 13 Pg ID 102
can be considered arms of the state because of the Eleventh Amendment. See Alkire v.

Irving, 330 F.3d 802, 814 (6th Cir. 2003). 

5

Although Defendant Kegebein has not been served and, therefore, is not presently

before the Court, the Eleventh Amendment immunity analysis applies equally to him. 

Plaintiff identifies Kegebein as an employee of the Michigan Secretary of State’s Office.

7

Plaintiff seeks damages from Lopez and Kegebein in their official capacities, the

Eleventh Amendment likewise bars his claims.5

IV. Absolute Immunity

In regard to the remaining claims against Lopez in her individual capacity, Lopez

asserts that she is entitled to absolute immunity. As a general matter, prosecutors are

protected by absolute immunity from civil liability in § 1983 suits. See Imbler v.

Pachtman, 424 U.S. 409, 427-28, 96 S. Ct. 984, 993-94 (1979). This immunity, which

arises from the need to protect a prosecutor’s ability to serve the public diligently and

vigorously, id. at 425-28, 96 S. Ct. at 992-94, extends equally to government attorneys

who undertake the defense of a civil suit. Al-Bari v. Winn, No. 89-5150, 1990 WL 94229

(6th Cir. July 9, 1990) (citing Murphy v. Morris, 849 F.2d 1101, 1105 (8th Cir. 1988)). 

The only exception to this immunity is when the government attorney “is not acting as ‘an

officer of the court,’ but is instead engaged in other tasks, say, investigative or

administrative tasks.” Van de Kamp v. Goldstein, --- U.S. ---, 129 S. Ct. 855, 861 (2009). 

Plaintiff’s claims against Lopez arise from Lopez’s work as a government attorney

defending against Plaintiff’s writ of mandamus action in state court. Plaintiff specifically

alleges that Lopez violated his rights by stating that she would not stop after the issuance

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 7 of 13 Pg ID 103
6

This is not to say that the alleged statement, absent absolute immunity, amounted

to a violation of Plaintiff’s constitutional rights.

7

In his response, Plaintiff argues that Lopez committed perjury during the writ of

mandamus proceeding and that such action is not protected by absolute immunity. (Pl.’s

Resp. at 6-7.) Specifically, Plaintiff asserts that Lopez committed perjury when she

informed the judge in the writ of mandamus proceeding that she had a judgment against

Plaintiff that she failed to produce.

As an initial matter, the claims in Plaintiff’s complaint are not based on and fail

even to allege Lopez’s “perjury.” Second, Plaintiff’s legal support for this argument

refers to instances where government attorneys acted as witnesses rather than as

advocates. (See id.) There is no allegation or evidence that Lopez acted as anything other

than an advocate in the writ of mandamus proceeding. And finally, Plaintiff’s

undeveloped allegation ignores the fact that he, admittedly, has an outstanding criminal

conviction related to his attempts to pay for his driver’s license and registration renewals

with two-party, non-commercial instruments. (Compl. ¶¶ 63-64, 75, 108-109.) Based on

these facts, the Court is unable to discern any viable cause of action that Plaintiff should

be permitted to pursue against Lopez.

8

of the writ of mandamus—she would pursue the matter as far as it could go. (Compl. ¶

18.) This statement, made in the context of Lopez’s representation of the government, is

shielded by absolute immunity.6

 It is irrelevant that Lopez did not actually pursue an

appeal in that case. Lopez is absolutely immune and entitled to dismissal.7

V. Extension of Time to Serve Defendant Kegebein

Upon receiving this Court’s July 17, 2009, notice that the Court was dispensing with

oral argument, Plaintiff filed a sur-reply to the present motion. Therein Plaintiff indicates

that, during his attempt to effect service, he received notice that Kegebein is now

deceased. As a result, Plaintiff requests more time to perfect process so that he may

initiate a state court action to open Kegebein’s estate. Plaintiff also filed a separate

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 8 of 13 Pg ID 104
9

motion to this effect on August 7, 2009. Having reviewed the content of the remaining

claims against Kegebein, the Court denies Plaintiff’s request and dismisses the complaint.

28 U.S.C. § 1915 requires a court to dismiss a case in which the plaintiff proceeds in

forma pauperis “at any time if the court determines that . . . (B) the action or appeal– (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii)

seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B). A complaint is frivolous if it lacks an arguable basis in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32 (1989). The term

“frivolous” “embraces not only the inarguable legal conclusion, but also the fanciful

factual allegation.” Id. at 325, 109 S.Ct. at 1832. Examples of meritless legal theories are

claims in which it is clear that the defendants are immune from suit and claims of

infringement of a legal interest which clearly does not exist. Id. at 327, 109 S. C. at 1833. 

Examples of baseless factual contentions are claims describing fantastic or delusional

scenarios. Id. at 328, 109 S. Ct. at 1833.

 Stripped of their naked legal assertions, the first two counts of Plaintiff’s complaint

seek enforcement of the writ of mandamus issued in state court. In his response to the

present motion, Plaintiff summarizes those claims as follows:

[T]he defendants’ unlawful activities culminated in the lawless and willful

disobeyance of a court order by the defendants, a Writ of Mandamus

issued by the Honorable 38th Judicial Circuit Court Judge Michael W.

LaBeau on April 19, 2002 and then affirmed by court order on September

15, 2006 after the defendants failed to appear on a show cause order for

violating it. It is for this for which the Plaintiff is suing the defendants

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 9 of 13 Pg ID 105
8

The first part of the first sentence in this quote summarizes Plaintiff’s third claim,

which the Court will address below.

10

named and unnamed herein and is entitled to a jury verdict on the facts

and law.8

(Pl.’s Resp. at 2-3.) According to Plaintiff, Kegebein participated in a civil rights

conspiracy and violated his due process, property, and equal protection rights by

violating the writ of mandamus. (Compl. ¶¶ 27, 30.)

The Court concludes that the alleged violation of the writ of mandamus fails to give

rise to a federal cause of action. In support of his claims, Plaintiff refers the Court to Roy

v. City of Augusta, Me. wherein the First Circuit held that the intentional violation of a

state court order arguably amounts to a taking of property without due process. 712 F.2d

1517, 1523 (1st Cir. 1983). Five years after Roy, however, the First Circuit backpedaled

on that holding and concluded that such alleged violations “could not be said to be

without due process unless no effective state remedy were available.” Decker v.

Hillsborough County Attorney’s Office, 845 F.2d 17, 22 (1st Cir. 1988). Furthermore,

the Fourth Circuit openly rejected Roy’s reasoning when it concluded:

A state court judgment is something to be enforced through the state’s

judicial process, including its powers of contempt. Every state court

judgment does not provide a would-be plaintiff with a cognizable property

right under 42 U.S.C. § 1983, and every alleged delay in the enforcement

of the mandate does not provide a plaintiff with a claim of deprivation

without due process of law. To hold otherwise would assign the federal

courts the role of ombudsmen in monitoring the execution of state

judgments, a role Congress surely did not envision in passing this statute,

and one that would be destructive of federal-state relations.

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 10 of 13 Pg ID 106
11

Biser v. Town of Bel Air, 991 F.2d 100, 105 n.2 (4th Cir. 1993).

Having been unable to locate a Sixth Circuit opinion on these issues, the Court

agrees with the Fourth Circuit. There is no allegation in this case that Plaintiff is unable

to seek further enforcement of the writ of mandamus in state court. Indeed, Michigan

law provides a specific remedy for violations of mandamus orders. See Mich. Comp.

Laws § 600.1144. The issuance of the writ of mandamus does not convert Kegebein’s

actions into constitutional violations and, if Plaintiff desires to seek further enforcement

of the writ, he should seek such enforcement in state court. Therefore, counts I and II are

dismissed for failure to state a claim.

Plaintiff’s third claim is likewise subject to dismissal under 28 U.S.C. § 1915. In

his third claim, Plaintiff alleges that Kegebein’s conduct leading up to the mandamus

proceeding amounted to First Amendment retaliation. The claim recounts Plaintiff’s

litigious history in Michigan state courts and describes Kegebein’s alleged role in

Plaintiff’s 1997 conviction for uttering and publishing. See Mich. Comp. Laws §

750.249. The overall tenor of the claim is that this latter conviction amounted to First

Amendment retaliation. 

Plaintiff cannot use a § 1983 lawsuit to challenge his criminal conviction. In Heck

v. Humphrey, the Supreme Court held:

[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,

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 11 of 13 Pg ID 107
9

Plaintiff’s conviction has not been reversed, expunged, declared invalid, or called

into question by the issuance of a writ of habeas corpus.

12

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. 477, 486-87, 114 S. Ct. 2364, 2372 (1994). Pursuant to this holding, this Court

“must consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id. 

To succeed in a First Amendment retaliation claim, Plaintiff would have to prove

that he engaged in protected speech. Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir.

2008). Although Plaintiff is entitled to voice his political opinion that the Constitution

prohibits states from making anything but gold and silver coins as tender for debts, he is

not entitled to commit crimes—uttering and publishing false financial transaction

devices—in promotion of this viewpoint. Insofar as Plaintiff claims that his conviction

amounts to First Amendment retaliation, his claim is barred.9

 And beyond participating

in Plaintiff’s criminal proceedings, it remains unclear from the complaint how Kegebein

engaged in First Amendment retaliation. Therefore, Plaintiff’s third claim must be

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 12 of 13 Pg ID 108
10Cases dismissed pursuant to Heck should be dismissed without prejudice so that

plaintiffs may re-assert their claims if they obtain reversal or expungement of their

convictions. See Hodge v. City of Elyria, 126 Fed. Appx. 222, 223 (6th Cir. 2005).

13

dismissed without prejudice.10 Because there are no remaining claims, Plaintiff’s request

for an extension of time to perfect process is denied and his complaint is dismissed.

Accordingly,

IT IS ORDERED that the Motion to Dismiss from the State of Michigan and Iris

Lopez is GRANTED and those defendants are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Counts I and II as to Defendant Kegebein are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Count III as to Defendant Kegebein is

DISMISSED WITHOUT PREJUDICE.

A judgment consistent with this opinion shall issue.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE 

Copy to:

Dean Stanley Hazel Michael F. Murphy, A.A.G.

1028 N Monroe 

Monroe, MI 48162 

2:09-cv-11384-PJD-PJK Doc # 17 Filed 08/11/09 Pg 13 of 13 Pg ID 109