Thomas COOK, Plaintiff-Appellant, v. Edwin MCPHERSON; Mark Bender, Defendants-Appellees.
No. 07-5552.
United States Court of Appeals, Sixth Circuit.
April 2, 2008.
421
A. Under certain sets of circumstances, it certainly could be.
Q. In Mr. Belknap‘s circumstances, knowing him, you‘ve followed him, do you believe that this condition that he may or may not have is life threatening to him?
A. Depends on what you mean by that. Obviously he‘s not going to die at that moment. He‘s not bleeding in his brain as far as my knowledge, although I haven‘t seen those diagnostic tests you‘re referring to. However, one of the aspects of traumatic brain injury isn‘t so much that person could die like a heart attack die, but under certain sets of circumstances, unfortunately it‘s and in some of the patients I‘ve treated because of their emotional derangement, they‘re fаr more likely to commit suicide, get involved in drug abuse, get involved in a car accident or to be acting in an untoward manner to normal stimuli.
Id. at 283.
Viewing these colloquies in the light most favorable to Plaintiff reveals thаt Dr. Samet did offer testimony that Plaintiff “may be” suffering from a “serious neurological injury.”
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is REVERSED and the case is REMANDED to the district court for further proceedings consistent with this opinion.
BEFORE: MARTIN, GIBBONS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
I.
On October 26, 2002, Cook brought his family to a suburban Chattanooga restaurant for dinner. When he arrivеd, another party confronted him while he sat inside his car. After responding to the party from inside his vehicle, Cook let his family out of the car, parked the vehicle, and joined his family inside the restaurant. During this time, thе other party called the Chattanooga Police Department and claimed that Cook had flashed a knife and was threatening to use it.
Defendants McPherson and Bender responded to the call and approached Cook at the restaurant. They asked him whether he was carrying a knife and he admitted that he was. Defendants then grabbed Cook‘s hands and put them behind his head. After securing Cook‘s hаnds, defendants pushed him head-first through the restaurant‘s door, then drove him toward the ground, with his face to the pavement. As defendants handcuffed him, one of the officers stuck his knee into Cook‘s back.
As a result of this еncounter, Cook was charged and indicted in the Criminal Court of Tennessee for aggravated assault (of the party outside the restaurant), assault (of Officer McPherson), resisting arrest, and carrying a weapon. On May 13, 2004, a jury convicted Cook of all counts but the charge of assault against defendant Officer McPherson. There is no evidence in the
On May 10, 2005, Cook filed his complaint pursuant to
This timely appeal followed.
II.
In his primary assignment of error, Cook argues that the district court imprоperly granted defendants’ motion for summary judgment on his malicious prosecution claim. In order to succeed in a malicious prosecution claim brought pursuant to
Here, there is no genuine issue of material fact as to whether Plaintiff was indicted by a Tennessee grand jury on the charges of assault on Defendant McPherson—he was. “[I]t hаs been long settled that the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer.” Barnes [v. Wright], 449 F.3d [709] at 716 [ (6th Cir.2006)]. As a matter of law, Plaintiff‘s indictment is dispositive of his
§ 1983 malicious prosecution claim, notwithstanding his allegations—however bare—of improper testimony in front of the grand jury.
Cook argues that, despite our holding in Barnes, his indictment should not prohibit his claim because, under
We reject Cook‘s argument. First, the district court correctly invoked the holding in Barnes that “‘the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existеnce of probable cause for the purpose of holding the accused to answer.‘” Barnes, 449 F.3d at 716 (quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002)); see also Harris v. United States, 422 F.3d 322, 327 (6th Cir.2005) (observing that under Ohio law, an indictment is “prima facie evidence of probable cause and a plaintiff must bring forward substantial evidence to rebut this” to succeed on a malicious prosecution claim) (internal quotation omitted); Hubbard v. Gross, 199 Fed.Appx. 433, 441 (6th Cir.2006) (holding that defendants were enti-
Moreover, a defendant is generally not entitled to рresent evidence before a grand jury, whether it is a federal or a Tennessee grand jury. See
III.
Cook next contends that the indictment does not foreclose his malicious prosecution claim because, he claims, Offiсers McPherson and Bender may have testified untruthfully before the grand jury. An exception to the Barnes rule applies where the indictment was obtained wrongfully by defendant police officers who knowingly present fаlse testimony to the grand jury. Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir.2002) (noting that a grand jury indictment does not foreclose a subsequent civil action for malicious prosecution where there is evidence of false statements or misrepresentations by law enforcement officials during the criminal proceeding); see also McClellan v. Smith, 439 F.3d 137, 145 (2d Cir.2006) (“If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.“) (quotation omitted).
Cook argues that the exception applies hеre, suggesting that Officers McPherson and Bender did not testify in good faith before the grand jury. Nevertheless, he offers absolutely no evidence—other than his eventual acquittal on the assault charge—to support that assertion. Cook‘s failure to point to any evidence supporting his claim precludes him from succeeding under this exception. Rothstein v. Carriere, 373 F.3d 275, 283 (2d Cir.2004) (reversing jury verdict for plaintiff and remanding with instruction to enter judgment for defendant on plaintiff‘s malicious prosecution claim where plaintiff was indicted and failed to offer evidence that the indictment was obtained by fraud or other police misconduct).
Accоrdingly, we hold that the district court did not err in granting summary judgment to defendants on Cook‘s malicious prosecution claim.
Finally, Cook argues that the “Sixth Circuit interpretation of application of the Summary Judgment rule [sic] probably is unconstitutional.” For support, Cook cites Professor Suja Thomas‘s recent article, Why Summary Judgment is Unconstitutional, 93 VA. L.REV. 139 (2007). Although the historical examination that Professor Thomas provides is interesting, Cook has not made any аttempt to apply the analysis in Professor Thomas‘s article to the facts of this case or to explain how the summary judgment process was applied unconstitutionally. The Supreme Court has held that summary judgment is constitutional, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (citing Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-21, 23 S.Ct. 120, 47 L.Ed. 194, for support of the proposition that summary judgment does not violate the Seventh Amendment), and it has continued to apply the Rule 56 summary judgment standard. See, e.g., Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). Thus, it would be inaрpropriate for us to hold that the summary judgment standard is unconstitutional.
V.
For these reasons, we affirm the order of the district court granting summary judgment in favor of defendants.