*1
351
“A drug quantity
only
ry
need
be
range,
Guidelines
it is entitled to a
presumption
rebuttable
by a preponderance
established
of the evi
reasonableness.
”
Id.
dence, and an estimate will suffice....
Anderson,
319,
United States v.
526 F.3d
Warman asserts that his sentence is un-
(6th Cir.2008).
reasonably
evi
“[T]estimonial
“excessive” but he fails to offer
any support for that
coconspirator may
dence from a
claim. Given
be suffi
identify
Warman does not
any particular
cient to determine the amount
drugs
factors that the district court did not con-
coconspirator
which another
should be
sider,
argument
his
amounts to nothing
held accountable.” United
States
Swan
more than a “bald assertion that the dis-
(6th Cir.2004)
622,
berg, 370 F.3d
trict court should have reached a different
Hernandez,
(quoting United States v.
conclusion.” United
v. Wright,
States
No.
(6th Cir.2000)).
686,
F.3d
drug
The
07-4085,
(6th
2009 WL
at *7
Cir.
quantity estimate “errs on the
side
cau
2009).
May 26,
Regardless,
the record
likely
tion and
quantity
underestimates the
clearly
also
shows clear that the district
drugs actually
attributable to the defen
court did not select Warman’s sentence
Anderson,
dant.”
III. CONCLUSION foregoing reasons, For the we AFFIRM 3. substantively Warman’s sentence is judgment of the district court. reasonable procedural addition to rea sonableness, we must determine that a
sentence
substantively
reasonable.
Webb,
factors, pertinent fail[s] consider WARREN, Ingles, CITY OF Donald Mi 3553(a) giv[es] factors or an unreason (07-2115); chael Schultz Alan War able amount of weight any (07-2116); nick pertinent Maureen Fournier (07-2117), Tate, Defendants-Appellants. factor.” United States v. 516 F.3d (6th Cir.2008) (citing United 07-2115, 07-2116, Nos. 07-2117. (6th Ferguson, States v. United Appeals, States Court of Cir.2006) (alteration (internal original) Sixth Circuit. omitted)). quotation marks Sentences Argued: Jan. 2009. properly within a calculated Guidelines Decided Aug. and Filed: 2009. range are afforded a presump rebuttable Caver, tion of reasonableness. 470 F.3d at Rehearing Rehearing En Banc Williams, 247 (citing United Denied Oct. States v. (6th Cir.2006)). Because
Warman’s sentence falls within the adviso- *11 Rochkind,
ARGUED: Garan Rosalind Miller, Detroit, P.C., Michigan, Lucow Bri- Richtarcik, Associates, Chapman an J. & P.C., Hills, Michigan, Bloomfield Sarah R. Prout, Aid, Huron, Lakeshore Port Legal Michigan, Appellants. for R. Michael Dez- si, Fieger, Fieger, Kenney, Johnson & Gir- oux, Southfield, Appellee. Michigan, Rochkind, BRIEF: Jami E. ON Rosalind Leach, Miller, P.C., Detroit, Garan Lucow Richtarcik, Michigan, Brian Ronald J. W. Associates, P.C., Chapman Chapman, & Hills, Michigan, Bloomfield Sarah R. Prout, Knight, Lakeshore William R. Le- Aid, Township, Michigan, for gal Clinton *12 Susselman, spiring Marc M. Dennis Appellants. together rights his civil —violated Detroit, Dettmer, by fabricating him, Michigan, Appel- against A. for evidence failing evidence, to disclose exculpatory pur- lee. and suing prosecution his and retrial without MOORE, CLAY, Before: and probable cause. KETHLEDGE, Judges. Circuit After discovery, the Defendants moved for summary judgment on thirty-six all CLAY, J., opinion delivered the counts asserted in Moldowan’s Third court, MOORE, J., joined. in which Complaint Amended raising various immu- KETHLEDGE, 401-07), (pp. J. delivered nity defenses. After dismissing certain separate opinion concurring in the against counts Ingles, Detective City judgment part and in dissenting part. Warren, of and the Depart- Warren Police SECOND AMENDED ment, OPINION dismissing and all against counts Christian, Officer the district court denied CLAY, Judge. Circuit Defendants’ summary motions for judg- action, Jeffrey this Plaintiff Moldow- ment in all respects. other These three (“Moldowan”) asserts a number of interlocutory appeals followed. For the claims under U.S.C. 1983 alleging herein, reasons set forth we AFFIRM IN rights Fourth, violations of his under PART and IN REVERSE PART the Fifth, Amendments, and Sixth Fourteenth judgment of the district court. as well as Michigan claims under state law. arrest, Moldowan’s claims arise out of his I. conviction, prosecution, criminal and retri- Moldowan’s Third Complaint Amended al for the 1990 abduction and brutal sexual thirty-six asserts against claims nine coun- (“Fournier”). assault of Maureen Fournier ty, municipal, and individual defendants. light After new evidence came to and a All claims arise out arrest, of Moldowan’s key prosecution witness recanted her testi- prosecution, conviction, criminal and retri- mony, Michigan Supreme Court re- al for the abduction and assault of Mau- versed Moldowan’s conviction in 2002. reen Fournier. Moldowan, People 466 Mich. (2002). retrial, N.W.2d 570 On Febru- Background A. Factual ary acquitted Moldowan was all On the morning August released, charges having nearly and served (“EMS”) Emergency Medical Service years prison. twelve badly injured found Fournier lying release, After his the street in the City Moldowan filed the of Detroit. EMS transported Fournier asserting instant civil action to St. John’s Hospi- various claims tal. Warren, completed The medical forms against City on her the Warren admission to hospital, as well Police as subse- Department, County, Macomb quent medical reports testimony from County Macomb Prosecutor in official his doctors, her bear witness to the extreme Warnick, capacity, Dr. Alan Warren Police brutality of the crime. The deter- Ingles, Detective Donald Warren Police mined Fournier had been abducted Christian, Officer Mark and Fournier. City Warren, from brutally assault- subsequently Moldowan amended his com- raped, ed and and left on a street in De- plaint to assert claims Warren Po- troit. lice Officer Michael Broadly Schultz.
speaking, Moldowan alleges that the De- Because Fournier had been abducted acting separately Warren, fendants —both and con- from the matter was turned over (“De assaulting he was her. Four- Department Police arrested to the Warren that, pri- nier and both testified her sister assigned the case was partment”), and attack, to the had Moldowan been abu- Given extent of Ingles. Detective *13 sive and toward Fournier threatened her. wait injuries, officers had to Fournier’s assault, In describing the Fournier testi- they could her days two before interview walking that fied had been on 11 Mile she then, Even the ex regarding the attack. pulled along- Road in a van Warren when injuries tent of forced Detective Fournier’s that side her. Fournier testified Moldow- board, aon and Ingles questions to write van, her, got grabbed an out of the and During in kind.1 the responded Fournier van, where dragged her into the she interview, reported that she had Fournier raped. a result the beaten and As night on the been abducted from Warren assault, significant inju- Fournier suffered males, 8,1990 August by four Caucasian ries that extensive abdominal sur- required all of knew. Fournier stated whom she gery. that, walking down the while she was at the hearing, Corcoran also testified Moldowan, street, approached she was stating a call an that she received from ex-boyfriend, thrown into a who was her 9, 1990, August male on the unidentified van, brutally white and light-colored or Detroit, day inquir- Fournier was found raped by beaten three the four and ing as to Fournier’s whereabouts. Corcor- identified attack assailants. Fournier her immediately recognized an claims that she Cristini, Cristini, Tracy as Jim ers Michael caller the as Moldowan. Corcoran testi- Tapp (“Tapp”), and Moldowan. Fournier’s that, fied she knew although that her sis- sister, (“Corcoran”), con Colleen Corcoran lied hospital, ter was in the she and told firmed Fournier’s claims that Moldowan Moldowan that her sister was at home previously assaulted and threatened had her, with and that Moldowan then ex- Fournier. “No, claimed: she’s not.... She’s at the investigation, After their the completing (J.A. 839.) morgue.” Corcoran also testi- charged police arrested and all four indi- fied that called Moldowan had her home police subsequently dropped viduals. The Fournier, previous day the for looking and Tapp alibi charges against based on his that that Moldowan had stated “he was days had in Texas for he been several 841-42.) (J.A. going get her.” assault, prior to the had not returned to examination, At the conclusion August until the Michigan evening of court dismissed Jim Cristini a defen- 8, and spent night the rest of with his dant, but Moldowan Mi- bound over and girlfriend. Tapp’s girlfriend confirmed his chael A jury Cristini on all counts. trial alibi. May 10, April was held from 30 to 17-18, On September the Macomb during which Fournier and of- Corcoran County held a preliminary Circuit Court substantially testimony fered the same examination determine whether suffi- they provided during preliminary ex- cient proceed evidence existed to to trial. amination. Fournier also testified that she During hearing, Fournier testified had never in the Detroit neighbor- been assault, prior to the she had dated her, hood and where EMS found that she and for lived with Moldowan more than crack frequented had never house in the year relationship their when area. before ended form, Ingles subsequently signed.
1. Detective later transcribed which she responses Fournier's to witness statement Warnick, D.D.S., addition, degree. sentencing, Dr. Alan first After court requiring entered order that “[a]ll and consultant odontologist forensic custody evidence of the Warren Wayne County Examiner’s Of- Medical Department, County Police the Macomb County, fice and a consultant Macomb Prosecutor’s Office the Macomb and Coun- County, Michigan Monroe State Court[,] ty Circuit whether admitted into Police, testimony offered expert bite [,] preserved evidence or not ... be from neck were consistent marks on Fournier’s this date forward until further order of the with taken from Mol- impressions dental Court, Circuit Court of Michigan Appeals, dowan, marks on bite Fournier’s (J.A. 2613.) Michigan Supreme Court.” right right arm and were consistent side *14 trial, private investigator After a hired with Michael dentition. In Cristini’s de- family witness, Moldowan’s located a conclusions, scribing Dr. his Warnick testi- Jerry Burroughs, reported that, who are ... 2.1 fied the “chances billion to morning of August he saw four 1 that can make another individual those African-American standing males around a (J.A. 2544.) same marks.” naked white female who was in lying defense, In presenting their Cristini and street, and that he saw the four men leave Moldowan offered alibi witnesses who tes- light-colored in a Burroughs van. further togeth- tified that the were not defendants that, approximately recounted one week evening question. er on the in The de- assault, after the he overheard two of delivery fense also pizza introduced tickets talking those same men about the incident pizza location of the which documented the bragging they participated and had in night deliveries made the of Cristini had the assault. also Burroughs indicated that 8, 1990, August seeking to show that Cris- he had seen that neighborhood Fournier in part of kidnap- tini could not have been several times that frequenting summer presented ing. testimony The defense also crack in house the area. from a witness who claimed she ob- evidence, In addition new to this Dr. in the served several males street where Hammel, being approached after several found, Fournier was and that the males years appellate later Moldowan’s coun
were and African-Ameri- both Caucasian sel, testimony. also recanted her Dr. expert can. The defense offered testi- also explained initially Hammel that she had mony odontologists from its own forensic matching trouble the defendants’ denti countering testimony Dr. con- Warnick’s body, tions to the bite on Fournier’s marks cerning the bite-mark evidence. that Dr. had reassured her but Warnick that Dr. Norman Sperber, highly re rebuttal, prosecution On called Dr. spected odontologist, forensic had re Hammel, D.D.S., a colleague Pamela of Dr. viewed the evidence and confirmed Dr. Warnick, testimony who corrobo- offered Warnick’s After subsequent conclusions. Dr. rating supporting and Warnick’s con- ly determining Sperber Dr. had never clusions. case, any reviewed in the evidence Dr. May 10, 1991, jury On convicted Dr. Hammel surmised that Warnick “had kidnaping, Moldowan and of as- Cristini deceptive in to mislead been order [her] murder, sault with intent to commit and testifying support into of his conclu 2 (J.A. 2568.) affidavit, two counts of criminal sexual conduct in sions.” In sworn disputes Dr. nick Hammel Dr. Warnick Hammel’s claims also denies that Dr. ever ex- pressed any pri- her and denies that he ever told Dr. Hammel that doubt about conclusions Sperber. he or to had consulted with Dr. Dr. War- Moldowan’s 1991 trial. operative Complaint, known Third Amended had she Hammel stated Dr. juncture: at this pleading that Dr. representation Dr. that Warnick’s (Third evidence was complaint had reviewed the Plaintiffs current Sperber agreed February have untrue, Complaint “would never filed she Amended 2006) of counts support alleges total of 36 testify a rebuttal witness 2568.) (J.A. City groups of several of defendants: conclusions.” Dr. Warnick’s Warren; City Department Police evidence basis this new On the (WPD); County of Macomb Warren again testimony, Moldowan discredited capacity; Prosecutor in his official its The review of his conviction. sought and official and sued their individual eventually re- Michigan Supreme Court Alan con- capacities: [forensic Warnick conviction, and re- versed Moldowan’s sultant], detective], Ingles Donald [WPD trial. the matter for a new manded detective], Mark Christian Mi- [WPD Supreme Court particular, Michigan sergeant charge [WPD chael Schultz prosecutor’s expert “the two found that room], the evidence and “other Pres- respect evi- with to ‘bite-mark’ witnesses Former ent and Members Warren *15 testimony have either recanted dence the Department office of Ma- Police and marks on the which concluded bite County yet uniden- comb Prosecutor made the defendant victim were tified,” individually: and sued Maureen has now presented opinion evidence which crime The [the victim]. Fournier case Moldowan, discredited.” been currently exceeds 200 docket entries The at 570. court also noted N.W.2d discovery disputes numerous ... with simply that “it prosecutor the conceded discovery appeals. and Extensive has say that or defen- not fair to the defendant depositions lengthy been conducted— known about dant’s counsel should have interrogatories taken and and numerous evidence problems the with the bite-mark produce exchanged. to requests prior trial. The same can also be said complaint federal alleges The violations the alibi regard with later-discovered plaintiffs of civil and constitutional bite-mark evi- witnesses.... Without the during prosecution, rights his criminal the wit- and with additional alibi dence including as well as state claims inten- nesses, result of have the trial could tional infliction of emotional distress Id. at been different.” her in against Ms. Fournier for conduct retrial, in Moldowan February On prosecution. Relevant to second all released. acquitted charges of and plaintiffs instant motion are claims told, nearly All twelve spent Moldowan City and the against of War- Warren years prison. respect Department. ren Police With defendants, alleges a plaintiff these con- History B. Procedural of spiracy between and Warnick members the Instant Action (Counts V, VI, VII, of the Warren Police January brought On Moldowan VIII), and between conspiracy Ms. action numerous claims asserting this civil and of the Fournier members Warren Michigan (Counts XVI, state XVII, under U.S.C. 1983 and Department Police XIX). three ultimately XVIII, Moldowan filed law. Plaintiff also contends an ear- complaints. resolving liability part amended that there discovery, the dis- Police regarding City lier motion of De- Warren and Warren summary training following inadequate offered for partment trict court and/or regarding of supervising claims asserted Moldowan his officers rights of County the constitutional citizens as a matter of law and (Count XXIV), and for the actions of certainly there many questions are of ma- Ingles policymak- defendant as the final (J.A. jury terial fact for a to determine.” (Count conducting investigation er in 3041.) As to the Warren Defendants’ mo- XXV). Additionally, plaintiff claims lia- tion, the district court concluded that bility City of against the Warren and the “[tjhere many are far too questions of fact Department for the Warren Police de- (J.A. 3020.) here.” As to Dr. Warnick’s of a struction evidence violation motion, the court concluded that the mo- court order. He also claims “[tjhere tion “has to be denied” because Department City Police and the Warren many are too facts at issue here even as to liable, are along Warren with Macomb qualified immunity grant summary County and for prosecutor, its the con- (J.A. 3065.) judgment.” As to Fournier’s prosecution tinued of plain- seizure “[tjhere motion, the court concluded that probable tiff cause in the second without here, are innumerable partic- issues fact trial violation of his constitutional ularly simply as to whether Fournier lied rights under the Fourth Amendment or not. And the Court will instruct ... (Count XXVII), rights and his to sub- that this was an intentional infliction or the process stantive due under the Four- jury is to decide whether there was an (Count XXVIII), teenth Amendment intentional infliction of emotional distress. rights procedural process his due un- I do find that the elements have been (Count der the Fourteenth Amendment (J.A. 3090-91.) met.” The court also de- XXIX). He claim also has state *16 nied partial Moldowan’s motion for sum- imprisonment false in connection with mary judgment. (Count XXXV). prosecution the second The district subsequently court entered Warren, City Moldowan v. 2006 WL three stating written orders merely that (altera- 3106090, (E.D.Mich.2006) at *2-3 Defendants’ summary motions for judg- tions in original). ment were “denied for the reasons stated discovery, After extensive Defendants (J.A. 328.) 323, 326, on the record.” The summary judgment, filed motions for as- district court’s written order as to the serting qualified various and absolute im- motion Warren Defendants’ also dismissed munity opposed defenses. Moldowan those against “all claims City of Warren partial motions and cross-moved for sum- Police Department ... for the reason that mary judgment. Based on concessions City Department Warren Police is response made Moldowan in his to De- legal entity capable not a being sued.” motions, fendants’ the district court dis- (J.A. 326.) XXV, XXVII, XXVIII, missed Counts and XXIX City as to the of Warren and the interlocutory These three appeals fol- Department, Warren Police all dismissed lowed. Christian, against
claims Officer and dis- II. missed Count XXXII Detective In- gles. Before turning to the merits of Defen- appeals, dants’ we first must determine receiving briefing parties
After from all juris- whether and to what extent matter, we have hearing argument on the diction to consider interlocutory appeal district court denied Defendants’ motions parties. as to all the issues raised remaining claims. The district On De- 3, 2007, County’s court denied the motion on the cember Moldowan moved this grounds filing that appropriate “[t]he Court to dismiss each of the three interloe-
368 (2006) Aqueduct Rico (quoting trial Puerto arguing that utory appeals, Inc., Eddy, & constitute final or- and Sewer Auth. orders do not court’s Metcalf 139, 144, 684, § under U.S.C. 1291 506 U.S. 113 S.Ct. appealable ders (1993)). Jones, collateral under the L.Ed.2d 605 Johnson v. appealable and are not 27, March By order dated 132 L.Ed.2d doctrine. S.Ct. order (1995), panel of this Court referred clarified prior Court for reso- panel motions to this Moldowan’s these elements as follows: consideration, hereby we Upon lution. underly- requirement The that the issue deny Moldowan’smotions. “effectively ing the order be unreview- on, example, able” later means under the Collateral
A. Jurisdiction
immediately may
failure to review
well
Order Doctrine
significant
require-
cause
harm. The
Although
1291 vests
28 U.S.C.
ment that the district court’s order “con-
jurisdiction
appeals
over
this Court with
clusively
question
means
determine”
only from “final decisions” of the district
likely
appellate
review is
needed
courts, “a decision ‘final’within the mean
requirement
avoid that harm. The
necessarily mean
ing
§of
1291 does not
from
separate
the matter be
the merits
in a
possible
the last order
to be made
that review
o'f the action itself means
Steel
Gillespie
case.”
v. United States
likely
appellate
is less
to force the
now
Corp., 379 U.S.
approximately
court
consider
(1964). A
L.Ed.2d 199
decision also is
(or
similar)
very
matter more
same
if
“that
appealable
it falls within
small
once,
likely
than
and also seems less
finally
class
which
determine
[of orders]
(for,
delay trial
if the
proceedings
court
from,
collat
right separable
claims of
collateral,
truly
proceed-
matter is
those
to,
action,
in the
.too
rights
eral
asserted
ings might
appeal
continue while the
review and too
important
be denied
pending).
independent
require
itself to
cause
(citations
omit
Id.
appellate
consideration be deferred
ted)
The
(emphasis
original).
*17
adjudicated.”
until the whole case is
Co
particular
also has noted that “some
value
Corp.,
hen v.
Indus. Loan
337
Beneficial
a
in
high
order” must be “marshaled
541, 546,
1221,
69
rate from the merits of the
solve an
determine the
important
disputed question,
issue
completely sepa
action,
and [3]
[2]
re
B.
Jurisdiction
Immunity
in
Claims
the Context
jurisdiction to
effectively
appeal
Whether we have
consid-
be
unreviewable
from
”
Hallock,
interlocutory appeal
er an issue on
thus
judgment.’
a final
Will v.
345, 349,
requires
163 L.Ed.2d
us to consider the three basic
U.S.
qualified immunity.
case,
well as whether the denial of
elements as
such a
summary judgment implicates “substantial
there -willbe
in
nothing
subsequent
case,
interests.”
In this
that re-
public
course of the
proceedings
the district
quires
impli-
us to consider the interests
court that can alter the court’s conclu-
denial of
by
cated
the district court’s
De-
sion that the defendant is not immune.
immunity
and absolute
qualified
fendants’
Alternatively,
judge may
the trial
rule
claims in the context
which those de-
only that if the
facts are as asserted
fenses have been asserted.
plaintiff,
the defendant
is not im-
trial,
mune. At
plaintiff may
Qualified
1. Defendants’
proving
succeed in
his version of the
Immunity Claims
facts, and the
may
defendant
thus es-
Generally speaking, the rationale
so,
cape liability. Even
the court’s deni-
underlying
qualified immunity
doctrine
al
summary judgment finally
and con-
legiti
“where an official’s duties
clusively determines
the defendant’s
mately require
clearly
action which
es
right
claim of
not to stand trial on the
rights
implicated,
tablished
are not
plaintiffs
allegations,
because
public
may
interest
be better served
are
no
simply
steps
“[there]
further
independence
action taken ‘with
and with
can be taken in the District Court to
”
consequences.’
out fear of
Harlow v.
avoid the trial the defendant maintains
800, 819,
Fitzgerald, 457 U.S.
102 S.Ct.
“Cohen’s,
barred,”
it is apparent that
(1982)
(quoting Pier
summary judgment insofar Cir.2002) (“In circuit, it is well the this estab- pre- whether order determines that, jurisdiction to lie ‘genuine’ appellate a issue of lished for forth trial record sets Johnson, 313, interlocutory appeal, an 515 at over defendant trial.” U.S. fact for 2151; seeking qualified immunity willing must be Berryman Rieger, v. 150 (6th Cir.1998) (“A alleged by concede the facts as the defen- 563 F.3d legal only the qualified immunity plaintiff and discuss issues dant who is denied case.”). by raised “Once defendant’s interlocutory appeal with this the may file an legal argument purely from the into appeal if that involves the ab- drifts only Court begins contesting of the the factual realm and legal issue whether pure stract or jurisdiction really happened, a what our plaintiff constitute alleged facts law.”). proceed In ends and the case should trial.” clearly established violation of limitation, (finding jurisdictional Berryman, “a 150 F.3d 564 lack of light of this jurisdiction appeal to consider defendants’ court’s determination that there district of “attempt[ed] a triable issue fact cannot be extent that defendants exists basis, interlocutory their appealed persuade on an even to us to believe version of facts”); Ash, of finding when the arises the context v. 539 Harrison F.3d (6th Cir.2008) immunity.” qualified (“Thus, an of assertion extent Louisville, City Gregory qualified immunity v. that of denial of Cir.2006). (6th an permit To dispute, based on a factual such denial appeal in- in such circumstances “would jurisdiction falls outside of the narrow of terject appellate Court.”). review into a district this determination the evidence is court’s Harris, In Scott v. trial, adjudication for a nonfinal sufficient (2007), 167 L.Ed.2d howev for Id. at purposes of 28 U.S.C. 1291.” er, recognized ap Court Johnson, therefore, a 743. “Under deter- jurisdictional parent exception to this limi of given mination that a set facts violates rejected tation when it considered reviewable, law is clearly established summary district of judg court’s denial while a determination an issue though ment even the district court had ‘genuine’ fact is is unreviewable.” See genuine as to found issues existed material (6th City Elyria, 502 F.3d conclusion, In reaching facts. Cir.2007). jurisdic addressing without the issue tion, jurisdictional found that a video of the This limitation Court requires disputes plaintiffs if “the defendant incident rendered the version of story, utterly version of the the de the facts discredited plaintiff’s “so jury nonetheless to record could willing fendant must be that no reasonable have 380, 127 the most favorable view of the believed him.” Id. at S.Ct. 1769. concede plaintiff trying to the to reconcile Scott with the purposes facts Su Johnson, 563; appeal.” Berryman, preme edict in this F.3d Court’s “ City Memphis, has ‘where trial Meals concluded (“[A] (6th Cir.2007) subject court’s that a fact is 726-27 defendant determination *19 argument blatantly required ques dispute to limit her and de reasonable false, monstrably appeals may on facts in the a court of premised tions of law taken ”3 so, say interlocutory appeal.’ light plaintiff.”); most favorable to the even on Wysong, plain- the district this Court found that the warranted reversal of court's deposition finding disputed material facts. Fed. tiffs admission in his that no factu- of exception Appx. within at dispute al existed fell this 853-54. Heath, Wysong Fed.Appx. qualified Unlike immunity, the de (6th Cir.2008) (quoting Blaylock City nial of a defense of absolute witness im of (3rd 405, 414 Philadelphia, munity 504 F.3d Cir. generally is not immediately ap 2007)). pealable because the “lack of interlocutory appeal from denials of immunity witness that a important It also is note ‘imperil does not public [a] substantial in denying stated basis for an district court’s ” Kelly, terest.’ Despite F.3d at 949. immunity necessarily claim “does not fore acknowledging that immunity testimonial jurisdiction par close this Court’s over [a “strengthens the public substantial inter ty’s] City Elyria, at appeal.” 502 F.3d of having est witnesses come forward and 490; Christophel see also v. Kukulinsky, testify truthfully,” we con nevertheless (6th Cir.1995) (“A 61 F.3d defen cluded in Kelly the denial of such right appeal quali dant’s the denial of imperil claims does not that overarching immunity turn phras fied does not on the interest because “private individuals ... order.”). ing Rather, of the district court’s “ witnesses, appear most, will at only a ‘regardless the district court’s reasons few times in their lives.” Id. On that denying qualified immunity, may we basis, we reasoned that permitting suit jurisdiction exercise over the ... appeal to proceed against “private individuals” questions the extent it raises of law.” implicate does not the same interests as Mehra, Williams v. 689-90 appeal an from public the denial of official (6th Cir.1999) Dickerson, (quoting immunity, where the relevant interest 1157) Williams). in (emphasis F.3d at significant official, more given that “the reviewing After Defendants’ vari spending more time than necessary to de claims, qualified immunity ous we conclude action, fend himself or herself in an would appeals predominantly while these spend less time on the tasks for which he questions capable raise of law are or she was hired and cost the public addi appellate juncture, review at this they also tional money defending suit present some issues of fact that Johnson should have been dismissed.” Id. beyond scope juris dictates are of our parties diction. Where the Unlike the ask us to re defendants before us in Kel- however, disputes, ly, solve factual we set asserting those issues the defendants testi- aside for resolution the trial immunity court. See monial this case are a (“To Gregory, officer, F.3d at 742-43 the ex consultant, a forensic and the vic- appellant interlocutory tent that an ap Moreover, tim of a brutal crime. each peal argues ap issues of fact and law on immunity asserts on testimony based de- peal, only this Court will pure entertain livered the course of a prosecu- criminal law.”). issues factors, In light tion. of these we conclude that the balance of interests issue this
2. Defendants’ Absolute case dramatically differs from the interests Immunity Claims implicated by the denial of immunity in Warnick, Detective Dr. Ingles, Kelly. Kelly Because does not dispose of challenge Fournier also question here, district court’s presented must we de- denial of their claims of absolute testimoni- termine whether the denial of absolute al or immunity, they witness which immunity assert witness claim asserted under in response to those arising particular claims out of these imperils circumstances (or on) in part testimony based their public substantial interest. We conclude trial. that it does. *20 based on investigators to suit Ingles and Dr. forensic Detective
As to
of their
Warnick,
implicated
testimony they
part
deliver as
interests
testimonial
denial of their
the state
court’s
and on behalf of
district
official duties
sufficiently akin to
claims are
immunity
ability
their
to ex
undoubtedly implicates
public
of
by the denial
implicated
those
in
potentially
ercise their discretion
interlocutory
immunity
support
official
their
performing
from
hibits
them
Kelly.
in
noted
As the Court
review.
in
before us
parties
Unlike the
duties.4
immunity
protect
seeks
Official
against po
Kelly,
1983 lawsuits
“[s]ection
discre
an official to exercise
ability of
witnesses,
like
lawsuits
officer
lice
and to
accomplishing public
in
tasks
tion
expected
‘could be
against prosecutors,
time
spending
from
the official
prevent
officers
frequency.’
some
Police
with
actions that are rea
defending
in court
every year, testify in scores of cases
legal.
sonably thought
to be
Without
resent
often will transform
defendants
from district court
interlocutory appeal
allegations
being
convicted into
ment
official, by
immunity,
denials of
official wit
by the State’s
perjury
of
necessary to
time than
spending more
LaHue, 460 U.S.
nesses.” Briscoe v.
action,
in an
or herself
defend himself
325, 343,
374
evidence,
evaluating the
S.Ct. 2505.
a matter of law.”
judgment
tied
in the
56(c).
of
all inferences
genuine
A
issue
court must draw
Fed.R.Civ.P.
are “dis-
when there
nonmoving par-
fact exists
to the
material
most favorable
light
affect the out-
might
that
Matsushita,
587,
over facts
putes
475
at
106 S.Ct.
ty.
U.S.
governing law.”
under the
come of the suit
a
of
mere existence of
scintilla
1348. “The
Inc., 477 U.S.
Liberty Lobby,
Anderson
[non-moving
support of the
evidence
2505,
L.Ed.2d 202
242, 248,
91
106 S.Ct.
de-
[to
will be insufficient
party’s] position
However,
tak-
(1986).
the record
“[w]here
summary judgment];
for
feat a motion
a rational
not lead
a whole could
en as
jury
on which the
be evidence
there must
non-moving
find for the
of fact to
trier
[non-moving
find for the
reasonably
could
”
issue for trial.’
‘genuine
is no
party, there
Anderson,
252,
at
106
party].”
477 U.S.
v. Zenith Ra-
Elec. Indus. Co.
Matsushita
S.Ct. 2505.
574, 587, 106 S.Ct.
Corp., 475 U.S.
dio
motions for
That Defendants’
(1986)
1348,
(quoting First
L.Ed.2d 538
claims
were based on
summary judgment
Co.,
Serv.
Bank Arizona
Cities
Nat’l
of
immunity does
qualified
of absolute and
1575,
88 S.Ct.
391 U.S.
ap
of
that
affect the standard
review
(1968)).
L.Ed.2d
at
Gregory, 444 F.3d
plies. See
summary judgment
At
to abso
is entitled
defendant
Whether
initial
moving
bears the
stage,
party
liability
immunity from
qualified
lute or
parts
those
identifying
burden
legal question
1983 is
under
U.S.C.
the absence of
that demonstrate
record
novo.
Id. at
that
this
reviews de
Court
material fact. Celo
any genuine issue of
737, 742.
317, 323,
Catrett, 477
Corp. v.
U.S.
tex
(1986).
If the
broad rele tiff to demonstrate that the officials are vant, dispositive inquiry determining qualified immunity.” not entitled to Sil clearly a right whether established is City Dayton, berstein whether it would be clear to a reasonable (6th Cir.2006) (citing Barrett v. Steub officer that his was unlawful in the conduct Schools, City enville Finally, situation he confronted.” Id. (6th Cir.2004)).
only if
are
these first two elements
satis-
Immunity
necessary to examine the substantive
B. Absolute
Moldowan’s re-
rights underlying each of
certain-
application,
“More limited
but
Baker,
relief.
maining requests for
See
immu-
ly
is absolute
protection,
broader
(“The
first
443 U.S.
99 S.Ct.
has held
nity,
which the
any §
“to
inquiry in
1983 suit” is
isolate
of certain func-
applies
performance
to the
precise
constitutional violation with
integral
functions are
tions when those
charged.”).
That
[the
which
defendant]
judicial
functioning of our adversarial
Moldowan asserts claims under various
system.” Gregory,
(citing
Id.
v.
Brady
(Ingles)
Claims
259, 269,
2606,
U.S.
113 S.Ct.
125 L.Ed.2d
Moldowan asserts
number of claims
(1993)).
Fourth,
Ingles under the
against Detective
qualified immunity,
Unlike
“[t]he Fifth, Sixth, and Fourteenth Amendments
immunity
seeking
official
absolute
bears
Ingles’ alleged
based on
failure to disclose
showing
immunity
that
burden
such
exculpatory
particular,
evidence.
In
Mol
justified
question.”
for the function in
Ingles
required
dowan contends that
269,
Buckley,
prosecutor.
judgment about
discretionary legal
concealing
that exact same information
material and
defense,
whether
the evidence is
prosecutor,
from the
and
Brady compels
such that
its
exculpatory,
Why
police
else would the
be re-
courts.
disclosure to the defendant.
they
if
quired
preserve
such evidence
obligation
no attendant
to reveal its
police
prose-
and
had
Although
Id. at 664.
process,
Brady
different roles in this
and Trombetta would
play
cutor
existence?
differentiation ... should
functional
if the
impose
obligations
“[t]his
hollow
indeed
Brady
that
creates a
not obscure the fact
preclude police
did not also
Constitution
duty,
prose-
which
singular constitutional
concealing the
officers from
same evidence
capable
are
police
cutors and
officers
they
destroy
permitted
that
are not
factually
ways.”
Id.
breaching
different
prosecutor
required
that the
is
to disclose.
justifica-
practical
In addition to these
argues that
police
The concurrence
considerations, the
tions and constitutional
obligations
cannot share in the state’s
un
turn
police’s obligation to
over material
Brady
Brady duty
der
because “the
is
inex-
exculpatory
evidence also follows
uniquely
prosecutors”
tailored to
in that it
orably
recogni-
from the
Court’s
requires
exculpatory
the disclosure
evi
police
tion that the
have a constitutional
“material,”
constitutionally
that
dence
duty
preserve
such evidence.
Trom-
requires
judg
and thus
the exercise of “a
that
Supreme Court observed
betta>
officers,
prosecutors,
police
ment that
“[wjhatever duty
imposes
the Constitution
Op.
are trained to make.”8
at 402. This
evidence,
preserve
on the States to
argument
point.
agree
misses the
We
duty
be limited to evidence that
must
determining
particular
whether a
might
expected
play significant
be
role
“material,”
piece of evidence is
as defined
suspect’s
defense.” 467 U.S. at
Bagley,
U.S.
S.Ct.
recognized
2528. The
S.Ct.
generally requires
legal
the exercise of
duty in
Youngblood,
same
Arizona v.
judgment
prosecuting attorney
that the
Having determined that Moldowan’s
sented here because he cannot show that
claims
Ingles implicate
Detective
Ingles
Detective
withheld these statements
clearly
right,
established constitutional
we
in “bad faith.” In particular, Defendants
next
whether,
must
taking
determine
Cannon,
argue
in Davidson v.
true,
facts alleged by Moldowan as
Mol-
U.S.
106 S.Ct.
385
488
cate that the evidence could form a
violation has occurred.
basis
process
due
57-58,
In discuss-
exonerating
intentionally withholding
in
also
claims
Moldowan
asserts
statements,
testimony, at
tory
Burroughs’
Fifth,
Ingles
Detective
under the
light
when
in the
most favor
least
viewed
Sixth, and Fourteenth Amendments based
Moldowan, provides
to
sufficient evi
able
allegation
during
Moldowan’s
claim to
for
survive
dence
Moldowan’s
trial,
first
Ingles
perjury
“committed
summary
Despite Detective
judgment.
prepared
he had
testifying that
statements
contrary,
lack
insistence to the
we
Ingles’
that
any evidence
was relevant
regarding
his
that
jurisdiction
to consider
claim
fact,
case, when,
to the
he
failed to
had
any such
Burroughs
made
state
never
Burroughs!’] exculpatory
reduce Mr.
state
Gregory,
444
police.
ments to
See
293.)
(J.A.
report.”
ment
a written
(“By arguing
at 744-45
the evi
F.3d
negligent
responds
that he is enti-
per-
Ingles
at most
Detective
dence establishes
Parratt,
aspects
expressly
any justification
imposing
for
it
left undisturbed
17. Nor is there
of
Daniels,
higher
§
because Moldowan asserts
holding
burden
Parratt's
as to
1983. See
§
process
329-30,
in the
1983 context.
("In
his due
claim
at
Although officials based entirely Ingles’ on Detective trial enjoy only immunity as to qualified their testimony than rather conduct related to conduct, “all of pretrial witnesses — witness,” his role as the “complaining In- absolute lay ficers as well as witness—are gles liability based on is entitled to absolute ly immunity. immune from civil This judicial testimony proceed trial regardless their true whether previously he Briscoe, ings.” signed the complain- arrest warrant as the A witness is entitled to testimonial 1108. ing Ingles witness. Detective therefore is egregious how immunity “no matter summary judgment entitled to as to testimony perjurious alleged XIII, XIV, Counts and XV. Spurlock,
have been.”
391
Court, Michigan Court of
431,
of the Circuit
Mich.
72 N.W.2d
Hoyt, 343
Roblyer v.
(1955)
Michigan Supreme
Sant
Court.”
126,
(quoting
Appeals,
Van
128
Co.,
2613.)
931 (J.A.
Express
American
(3d Cir.1946)),
courts have held
Michigan
XXIII,
In
Moldowan as
Count
“
an action
only
which
‘the
situation
statutory
claim under 18 U.S.C.
serts
properly
would
prosecution
malicious
for
however,
provision,
provides
§
That
knowingly
officer
is where
lie
justice
penalties
criminal
for obstruction
complaint,
in a
with-
facts
to false
swears
corrupt conduct and threats of
through
”
probable
no
cause.’
there is
out which
force;
a civil claim for
provide
it does not
Arbic,
Mich.App.
406
159
King v.
Nor does violation of
damages.
monetary
(1987)
Belt v.
(quoting
858
N.W.2d
give rise to a claim for
provision
Ritter,
Mich.App.
N.W.2d
damages under 42 U.S.C.
1983 because
(1969)).
“rights-creating
explicit
it does not contain
prosecution
malicious
asserting
In
his
Detroit,
City
language.” Johnson
Moldowan
Ingles,
against
claim
Detective
(6th Cir.2006)
(holding that
“failed,
the com-
Ingles
as
alleges only that
merely
‘benefits’
“statutory language
witness,
full and fair
to make a
plaining
specific rights-
putative plaintiffs without
facts and allowed
of the material
disclosure
is insufficient to confer a
creating language
...
to continue without
prosecution
right enforceable under
personal federal
313.)
(J.A.
Although
cause.”
probable
Doe,
(citing Gonzaga
§ 1983”
Univ. v.
conclusory
vague and
makes a
Moldowan
273, 282,
153 L.Ed.2d
S.Ct.
complaint
criminal
allegation
(2002))). Accordingly, Officer Schultz
on the ...
false
him
“based
summary
judgment
entitled to
Ingles,”
by Defendant
provided
evidence
XXIII.
Count
“false evi-
any such
he never identifies
314.)
(J.A.
only sub-
Moldowan’s
dence.”
claim in
constitutional
Moldowan’s
claim
support
of this
allegation
stantive
hand,
XXII, on the
is a more
Count
other
“deliberately failed
Ingles
is that Detective
safeguard
“To
a defen
question.
involved
to the
convey [Burroughs’ statements]
a com
right
present
process
dant’s due
313.)
(J.A.
County Prosecutor.”
Macomb
defense,
has de
plete
all of Mol-
accepting
even
Consequently,
loosely be called the
veloped
might
‘what
true,
conclude
allegations as
we
dowan’s
access
constitutionally guaranteed
area of
a claim for malicious
Payton,
under
”
gardless of government whether the acted Municipal Liability (City faith.”); in bad see also Monzo v. Ed Warren) wards, (6th Cir.2002) (discussing bad faith requirement only in Moldowan also asserts various claims evidence). potentially terms of useful City of Warren and the War- ren Department. Police Because the dis- light In tests, of these distinct Moldowan trict court Department dismissed the would as a need to only demonstrate bad faith defendant and Moldowan appeal if the did not evidence at issue merely “poten- that ruling, only City’s tially susceptibility useful.” stage, however, At this we XXIV, suit is before us. In cannot resolve that Count disputed issue Mol- of fact. Johnson, dowan 313-18, City See claims that the is liable under 2151; Gregory, failing adequately F.3d at 744-45. train its Nev- ertheless, assuming regarding even officers .the evidence constitutional rights issue was materially of criminal exculpatory, Mol- defendants. Count XXVI, dowan still would required be Moldowan claims that City show that *39 the “exculpatory value” of the liable evidence because unidentified individual “apparent” destroyed. before it was with “policy-making authority” ordered the Trombetta, 489, 467 at U.S. 104 S.Ct. 2528. destruction of evidence in contravention of the trial court’s order.
Although the record indicates that materiality was, the of this evidence or at qualified immunity Because been, least should apparent have § to Detec- unavailable 1983 claims a mu-
393
Pearson,
training
on
of the
adequacy
[the]
129
822 must be
see
S.Ct.
nicipality,
Lewis,
partic-
523
in relation
the tasks the
program
Sacramento v.
to
County
(citing
of
1708,
390,
5,
140
perform.”
officers must
Id. at
n.
118 S.Ct.
ular
(1998)),
ar-
City
instead
1197.
involved a
Although
109 S.Ct.
Harris
L.Ed.2d
mu-
establish
Moldowan cannot
to train
to
gues
city’s
that
failure
its officers
deter-
be-
liability
any
on
of these claims
nicipal
required
whether a detainee
medical
mine
underlying
establish an
he cannot
care,
Supreme
cause
more
spoke
Court
As
right.
a constitutional
deprivation of
that
that in
broadly, noting
may happen
“it
above, however,
that
we find
explained
assigned
specific
of the duties
to
offi-
light
claims
failure-to-disclose'
Moldowan’s
employees
need for more or
cers
Ingles
implicate
do
against Detective
obvious,
training is
and the
different
so
rights.
clearly
process
established due
likely
in the viola-
inadequacy so
to result
Moreover,
sys-
a
recognize
courts
“[t]he
rights,
poli-
of constitutional
that the
tion
ade-
to train
officers
police
tematic failure
city
reasonably
can
be
cymakers
can lead
policy
as custom or
which
quately
deliberately
to have been
indifferent
said
Although recognized Pembaur policy-maker liability, the Court made V-VIII, XVI-XIX, 6. Counts clear that every “not decision municipal Conspiracy Claims XXXIV— automatically subjects officers the munici Moldowan’s Third Amended Com pality liability.” Id. at plaint also asserts alleg numerous claims Rather, S.Ct. 1292. municipal liability ing Defendants, that the ways, various only “attaches where the decisionmaker conspired together possesses to violate his authority final constitu to establish mu tional nicipal policy rights. with respect conspiracy to the action or Moldowan’s words, dered.” Id. In other claims are against the official asserted Defendants In must “responsible Fournier, be for establishing gles, final and Dr. acting Warnick spite discovery, yet extensive Moldowan has have believed him.” 550 U.S. at identify responsible the individual for or- S.Ct. 1769. dering the destruction of evidence. Moldow- any an also has not introduced evidence of an disagree 20. We also with the notion that Mol- policy directing official officers to withhold dowan cannot make out a claim exculpatory prosecutor. evidence from the City under Count XXVI because he cannot alleged persistent Nor has he a "clear and any show part constitutional violation on the Doe, pattern” of such conduct. See Although of Officer Schultz. Officer Schultz fact, City points deposition 508. In did not violate Moldowan's constitutional testimony and suggesting sworn statements evidence, rights by destroying the case Mol- pattern that no such or custom exists. Never- may dowan nevertheless be able to show that theless, alleged whether Moldowan has facts "the policy-making individual with final au- satisfy sufficient to elements of claim for thority who directed ... the destruction of the municipal liability beyond scope of this materiality evidence” was aware of the interlocutory appeal. The evidence on which evidence, not, and thus did violate Moldowan’s rely Defendants does did the record Scott, rights Youngblood. under Trombetta evidence before the Court in Thus, least, utterly stage "so at this ]” Moldowan's asser- we are not inclined discredit jury
tions such that "no grant summary judgment reasonable could on that basis. *41 1539; Jaco F.2d see also claim.” 826 as with unnamed as well together concert (6th Bloechle, Cir. Depart- Police Warren of the members 1984) County (affirming conspiracy Prosecu- dismissal of Macomb and the ment merely alleged “complaint Office. claim where tor’s language void conclusory negligence broad circuit, is well-settled “[i]t In this necessary to allegations factual with pled must be claims conspiracy that conspiracy theory”). Accord support a vague that and degree specificity some appropriate summary judgment ingly, unsupported conclusory allegations and conspiracy nine of Moldowan’s as to each sufficient to will not be material facts Gardner, Spadafore v. claims. See § 1983.” Gutier a claim under state such (6th Cir.2003). F.3d 853-54 (6th Lynch, 826 rez v. Cir.1987). of Mol reviewing each After Imprisonment XXXV —False 7. Count claims, it is evident conspiracy dowan’s XXXV, as these claims In Count Moldowan plead failed to that he has V, In Count specificity. Michigan claim under the Constitu requisite with the serts a instance, merely asserts Moldowan City for for false tion Warren Ingles, Detective and that Dr. Warnick continued with imprisonment and seizure members of the other unnamed along with Specifically, Moldow probable cause. out “conspired to Department, Police Warren that, Dr. after Hammel recanted alleges violating purpose of illegal for the gether Michigan Supreme testimony and the her (J.A. 287.) To support rights.” civil [his] his conviction reversed claim, only offers one sub Moldowan that “probable cause to longer there no that “Defen allegation, factual stantive crimi had committed the [he] believe photograph arranged] ... for dants that Defendant Fournier accused nal acts and on Ms. Fournier bite marks ing of the of,” being “[b]y and virtue of him Mr. molds of Moldowan’s making probable under house arrest without held (J.A. 287.) Mol dentition.” Mr. Cristini’s cause,” “unlawfully he was restrained.” of acts allegations other makes no dowan 319-20.) (J.A. asserts that this Moldowan conspiracy. of a in furtherance taken the Michi liberty on his violated restraint allegations, any further offering Without ultra and constituted gan Constitution “prior incorporates these then Moldowan which was not within vires conduct VI-VIII, serially allegations” Counts author governmental Defendants’ scope of constitu claim as different recasting this City that it is appeal, the contends ity. On takes the Moldowan violations. tional immunity under M.C.L. entitled conspira other in all of his approach same 691.1407(1), of whether Mol regardless claims, more than one offering nothing cy inten that Defendants acted alleges dowan claim in in his first conclusory allegation tionally. series, repeatedly recasting then clear, constitutional as different howev allegation Michigan law makes er, immunity violations. is not “[g]overnmental alleged that the ... it is available where Gutierrez, allega- a review of inAs a right violated conferred state has in Moldowan’s various tions contained Burdette v. State Michigan Constitution.” “they are claims evinces conspiracy Mich., 421 N.W.2d Mich.App. motion for to withstand insufficient (1988) Dep’t (citing Smith they] ... summary judgment [because Health, 540, 410 N.W.2d 428 Mich. Pub. speci- facts and material requisite lack the (1987)). Although governmental conspiracy necessary to sustain ficity *42 396 313-18, 2151;
immunity Gregory, 444 F.3d recognized in 691.1407extends 115 S.Ct. “intentional torts” are “committed at 743-44. therefore affirm dis- We the governmental scope the of a func within immunity trict court’s denial of as to Count tion,” that does not immunity extend to XXXV. in this case
Moldowan’s claims
because
badge
“intentional use
misuse of a
of
or
V.
authority for a
governmental
purpose un
the
Dr.
by
Next we turn to
claims raised
the
by
authorized
law is not
exercise of a
(Case
07-2116).
Warnick’s
No.
Dr.
appeal
Smith,
governmental
function.”
forensic odontologist
Warnick is the
who
Michigan
at
N.W.2d
780. As the
Court of
Appeals
in
expert opinion,
held
Burdette:
“defendant
testified
in his
the
claim
where
immunity
plaintiff
cannot
the
conclusively
bite-mark evidence
linked
alleges that
has
defendant
violated its own Moldowan to
attack. Dr.
Warnick’s
rights
Constitutional
serve
constitution.
testimony undoubtedly played major
role
government
restrict
conduct. These
it
Moldowan’s conviction as
confirmed
rights
purpose
would never serve this
if
testimony that
Fournier’s
Moldowan was
governmental immunity
the state could use
one of her assailants. Moldowan asserts
to avoid constitutional restrictions.” 421
various claims
Dr.
Each
Warnick.
N.W.2d
186-87. This conclusion is not
of these
claims is considered
turn.
Michigan
affected
trial court’s de
termination,
trial,
prior to Moldowan’s first
Fabricating
A. Counts
Evidence
I-IV —
probable
cause existed.
Hinch
Cf.
Withholding Exculpatory
Moore,
(6th
F.3d
man
202-03
Evidence
Cir.2002)
“a
(holding
finding
proba
of
I-IV,
In Counts
Moldowan asserts viola-
prior
ble cause
criminal proceeding
Fifth,
Fourth,
tions of
rights
his
under the
in a
plaintiff
subsequent
does
bar
Sixth,
maintaining
Amendments,
civil action from
a claim
alleg-
and Fourteenth
prosecution
malicious
under Michigan
Warnick,
law ing
intentionally
that Dr.
“either
where the claim is based on a
offi or with deliberate indifference
with
and/or
supplying
cer’s
false information to estab
reckless
of the truth
disregard
probable
(citing
City
lish
cause”
Darrah v.
constitutional rights,
[Moldowan’s]
fabri-
(6th
Park,
Oak
255 F.3d
Cir.
cated
impeaching
evidence and withheld
2001))).
and exculpatory evidence from
Ma-
County
comb
Prosecutor and from [Mol-
Nor are we persuaded
Defen
(J.A. 284.)
defense counsel.”
In
dowan’s]
arguments
dants’
that we should resolve
response,
argues
Dr. Warnick
that he is
disputed
factual
underlying
issues
probable
question.
summary judgment
cause
Whether
entitled to
proba
on these
ble cause exists to arrest and detain a
claims because Moldowan’s complaint
suspect generally
question
is a
of law that
identify
allegedly
failed to
unconstitu-
may
we
review de novo. See United
tional conduct. Dr.
argument
Warnick’s
(6th
Combs,
States
not well taken.
Cir.2004)
Hill,
(citing United States v.
Qualified immunity
gov
shields
(6th Cir.1999)).
Because of
acting
ernment
within
scope
officials
however,
posture
appeal,
of this
we
their official
from civil liability
duties
inso
jurisdiction
disputed
lack
to consider the
clearly
far as their
does not
conduct
violate
issues
fact that are critical to resolving
Harlow,
rights.
claim
there
established
See
Moldowan’s
was a want of
Johnson,
817-18,
probable cause.
clarifying
See
U.S. at
immunity inqui- holding
exculpatory
the existence of
foren
qualified
scope of the
fabricating
stated Mitchell:
forensic evi
ry,
sic evidence
Relying
Spurlock,
at 744.
dence.
Id.
reviewing the denial
appellate
An
court
*43
immunity
expert
that a forensic
Gregory
claim of
reaffirmed
the defendant’s
“
of the
seriously
the correctness
‘cannot
contend that
need not consider
defendant
facts, nor even
plaintiffs
[investigator]
version
not know
a reasonable
would
allega-
plaintiff’s
whether the
determine
inappropriate
were
that such actions
All it need
actually state a claim.
tions
in
of an
performed
violation
individual’s
”21
of lave whether
question
is a
determine
...
at 744
rights.’
constitutional
Id.
by
allegedly violated
legal norms
1005) (alter
at
(quoting Spurlock, 167 F.3d
at
clearly established
were
defendant
Gregory). Gregory’s
ation in
reliance on
or, challenged actions
the time of the
significant
is
because we deter
Spurlock
district court has de-
where the
cases
norm
legal
mined
that case
this
was
summary judgment for the defen-
nied
clearly
early
established at least as
that even under the
ground
on the
dant
998-99,
May
April or
of 1990.
F.3d
the de-
version of the facts
defendant’s
1006.
clearly estab-
fendant’s conduct violated
challenges
Dr.
Because
Warnick
law,
clearly pro-
the law
whether
lished
allegations
the factual
he fabricated
actions the defendant claims
scribed the
evidence, however,
manipulated
we
he took.
jurisdiction
lack
to consider Dr. Warnick’s
(emphasis
appeal
summary judg
from the denial of
added). Accordingly, we need not deter-
ment as to Counts I-IV.
stage
at this
whether Moldowan’s
mine
relief
states a claim on which
complaint
Negligence
B. Count XXXIII —Gross
whether,
only
may
granted, but
assum-
be
XXXIII,
Moldowan,
In
by
Count
Moldowan
facts as asserted
ing the
by the de-
allegedly
gross negligence
violated
asserts a claim of
under
“legal norms
law,
at the
clearly
Michigan
were
established
Dr.
fendant
state law. Under
War-
action.” Id.
challenged
statutory immunity
time of the
enjoys
nick
from liabil
ity to the extent
his conduct
that ex
Gregory,
we reasoned
scope
of his duties as the State’s
within
“act
an investi
pert forensic examiners
691.1407(2).
§
expert.
forensic
M.C.L.
they interpret and
gatory fashion when
plainly
Because Dr. Warnick’s conduct
evidence,” and thus we
physical
document
duties,
scope
of his
Mol
falls within
that “the intentional fabrica
determined
demonstrate that Dr.
dowan must
War-
report”
subject
to the
tion of a forensic
“gross
nick’s conduct rises to the level
to the inten
applied
considerations
same
negligence.”
Payton,
See
536 N.W.2d at
by
of evidence
tional fabrication
negligence
stat
242. Gross
defined
at 740.
prosecutor.
officer
“conduct so reckless as to demon
framework,
ute as
concluded
Gregory
Under
lack of
for
subject
strate a substantial
concern
expert may be
that a forensic
deliberately
injury
§
whether
results.” M.C.L.
1983 for
with-
suit under
engaged
prior
taking
suggestion,
edly
the witness
Contrary Dr. Warnick's
subsequently
("Subsequent
testified as to these
fact that he
VI.
any other actions to initiate Moldowan’s
Finally, we address whether Fournier is
prosecution
arrest or
previous-
courts
entitled
immunity
as to the various
ly have found critical in applying the com-
(Case
claims
against
Moldowan asserts
her
plaining
exception.
witness
Although
07-2117).
No,
Fournier’s identification of Moldowan as
one
her
Immunity
certainly
A.
attackers
Absolute Testimonial
was critical
to Detective Ingles’ decision to file a crimi-
matter,
As an initial
we note
nal complaint against Moldowan and the
to the extent
that Moldowan’s claims
County
Macomb
Prosecutor’s decision to
against
rely
allegations
Fournier
pursue
prosecution,
Moldowan’s
her state-
perjured
trial,
she offered
testimony at
only
broader,
ments were
part of a
inde-
Fournier is entitled
immunity.
to absolute
pendent
investigation. As the record
Briscoe,
Moldowan argues that Fournier is
not entitled to
Given Fournier’s
immunity
testimonial
limited role leading up
under
Briscoe because she
arrest,
was the
“complaining
Moldowan’s
in light
of above,
witness.” As noted
independent inquiry
po-
conducted
fact,
In
Moldowan's Third Amended
complaining
Com-
charging Jeffrey
witness
Mol-
plaint explicitly acknowledges that "Defen-
(J.A.275.)
dowan with four felonies.”
Ingles signed
Complaint
dant
[the]
as the
Finally, the nexus test
that of the state.
lice,
complaining witness ex-
extending the
sufficiently
run
requires
relationship
in this case would
close
to Fournier
ception
(i.e.
must
analysis
regulation
we
or con-
through
to the
state
counter
functional
Holloway
tract)
context. See
private
in this
apply
between the state and the
Cir.2000)
(6th
Brush,
220 F.3d
may
actor so that the action
be attrib-
(“Absolute
by a
immunity is determined
the state.
uted to
looks to ‘the nature
analysis that
functional
(6th
Garbarino,
Ellison
identity
not the
performed,
function
of the
omitted).
Cir.1995) (citations
Moldowan
” (quoting
it.’
performed
actor who
concluding
any
offers no basis for
2606)).
269, 113 S.Ct.
Buckley, 509 U.S. at
infor-
applies
Providing
these tests
here.
police, responding
ques-
mation to the
§ 1983
B.
XVI-XIX—
Count
crime,
offering
tions about a
witness
Conspiracy Claims
testimony at a criminal trial does not ex-
XVI-XIX,
Moldowan
Counts
pose
private
liability
individual to
Four
claims under
asserts
taken “under color of law.” See
actions
citizen,
nier,
alleging that she
private
*45
Briscoe,
329,
460
plaining liability. victim is insulated from (“ Id. at 613 n. 28 ‘The exercise of the above, For all of the reasons set forth officer’s discretion make's the initiation of (1) hereby: we jurisdic- hold that we lack prosecution protects his own and from interlocutory tion to consider Defendants’ liability the person whose information or appeals summary from judg- the denial of accusation has led the officer to initiate the (cid:127) I, II, III, IV, ment as to Counts ” proceedings.’ (quoting 3 Restatement XXXIII and thus DISMISS Defendants’ “Thus, Torts 2d cmt. g)). Michi- claims, appeals as to those but DENY gan, prosecutor’s exercise of his inde- Moldowan’s motions to dismiss with re- *46 pendent initiating discretion in and main- (2) Counts; spect to all other REVERSE taining prosecution a complete is defense judgment the of the district court and to an action for prosecution.” malicious V, grant summary judgment as to Counts added). (emphasis Id. VI, VII, VIII, XVI, XVII, XVIII, XIX, and ground XXXIV on the that Moldowan
That
precisely
the case here.
to plead
conspiracy
failed
his
claims with
above,
As noted
although Fournier’s iden
(3)
requisite specificity;
the
REVERSE
tification of Moldowan as one of her at
judgment
the
of the district court and
certainly
tackers
was critical to the Ma-
grant summary judgment as to Counts
County
comb
Prosecutor’s decision to
XIII, XIV, XV, XXII,
him,
and XXXVI on the
prosecute
only
her statements were
ground that
broader,
Defendants are entitled to
part of a
independent investiga
(cid:127)
(4)
claims;
immunity as to
RE-
tion.
these
controlling Michigan
Under
authori
judgment
ty, the
VERSE the
of the district court
independent judgment
exercise
grant summary
part
judgment
and discretion on
and
as to
police
the
of the
and
Counts
XVI, XVII, XVIII,
prosecutor
the
precludes,
ground
as a matter of
and XIX on the
law,
§
prosecution
malicious
claim
1983 cannot
against
support
against
claim
Fournier,
individual,
Fournier.
a private
under these
(5)
circumstances;
judg-
REVERSE the
D. Count XXXVI —Intentional
ment of
grant
the district court and
sum-
Infliction of Emotional
mary judgment as to Count XXIII on the
Distress
ground
§
that 18 U.S.C.
1503 does not
XXXVI,
provide
a private right
Count
Moldowan
of action and can-
also
support
asserts
state law intentional infliction of not
a civil claim
un-
damages
for
(6)
1983;
emotional
against
distress claim
Fournier.
der
judgment
REVERSE the
According to the Third
grant summary
Amended Com- of the district court and
police
unprece-
officers would be both
ground
the
XXX on
as to Count
judgment
a claim
support
not
dented and unwise.
Michigan law does
a victim
against
prosecution
malicious
for
Brady
imposes
doctrine
“The
abso
circumstances;
these
under
complainant
duty
prosecutor
produce
on the
all
lute
(7)
of the dis-
judgment
the
REVERSE
materially
in
favorable evidence
the State’s
summary judgment
grant
and
trict court
Wilhoit,
possession.” Villasana v.
ground
XXXI on
as to Count
(8th Cir.2004).
terms,
By
its
support a claim
law does not
Michigan
therefore, Brady applies
prosecutors,
In-
against Detective
prosecution
malicious
course,
itself,
police
Brady
officers.
(8)
circumstances; and
these
gles under
all,
did not involve
conduct at
but
of the district
judgment
AFFIRM
concerned a criminal defendant’s
rather
summary judgment as to
denying
court
upon
a new trial
attempt
obtain
based
XXVI,
XI, XII, XXIV,
IX, X,
and
Counts
prosecution’s suppression
of evidence
that Moldowan’s
grounds
on the
XXXV
In granting Brady par
favorable to him.
clearly established
implicate
allegations
conviction,
from his
tial relief
that Defendants
rights and
constitutional
suppression by
prosecu
held “that the
immunity as to these
entitled to
are not
of evidence favorable to an accused
tion
claims.
upon request
process
violates due
where
guilt
the evidence is material either to
KETHLEDGE,
Judge,
Circuit
punishment,
irrespective
good
judgment
part,
concurring
prosecution.”
faith or bad faith
dissenting
part.
added).
(emphasis
U.S. at
It is
absolute
acting
government’s
ers
on the
behalf in
duty
government
on the
official who will
case,
including
police.”
Id.
lie.,
present the State’s case at trial
added).
(emphasis
any
The is framed the dic- — Brady duty materially to conceal ex- adversary system tates of the and the —not Thus, culpatory faith. evidence bad prosecution’s legal Legal role therein. matter, practical extending Brady po- terms of art define its bounds and limits. accomplish lice officers would little with prosecutor lawyer’s The must ask such *48 respect to the of criminal fairness trials questions as an whether item of evi- already that current law does not accom- “exculpatory” “impeach- dence has plish. ment” value and whether such evidence inappropriate is “material.” It would be What extension accomplish, that would charge police answering to with these rather, a significant is increase in lawsuits questions, job gather- same for their against police enjoy officers. Prosecutors ing quite evidence is different from the immunity absolute for actions taken in
prosecution’s
evaluating
task of
it.
capacities,
their official
see Imbler v.
Jean,
(Wilkinson, C.J.,
The extension is also The object Brady already “encompasses special rule evidence would become the of atten- only investigators ‘known criminal who believe police and not tion from defendants time, that allegedly exculpatory present exculpatory pic- evidence should but an been, not, disclosed to their so, have but arranged just ture after the fact when prior respect to trial. And in this counsel grounds would be for a suit. target. present large would police unleashed, Once these suits would be officers, Ingles particularly ones like Police very stop difficult short of trial. For in field, investigate violent crime
who refuge qualified these cases the immuni- great deal of information obtain ty Qualified illusory. immunity would be investigation. of an Some of what course requires “clearly the officer violate obtain, they casings, tangible, like shell is rights established” constitutional lia- to be it, things they may much of like have but ble, definition, being with the idea or heard in the course of their activi- seen liability usually such is limited to officers ties, matter, an practical is not. As who knew or should have they known were preserve, pass officer cannot and thus Katz, violating law. See Saucier v. sees, prosecutor, everything to the he 194, 202, 150 L.Ed.2d hears, investigat- in the or learns course (2001). But it an does officer little He has to exercise ing crime. instead good to aware be of the existence of a important what seems and judgment about if, generic duty, when acting good faith not. But if an officer bears an what does duty materially excul- and to the of his ability, absolute disclose best he is not evidence, information patory all of the breaching aware that he is it. And be- judgment, even thus filtered officer’s absolute, Brady duty cause the is a erimi- faith, purest good potentially be- nal-defendant-turned-plaintiff would need the basis of a him. comes lawsuit prove not that the officer knew—or even an excul- recognize An officer’s failure any reasonable officer would have clue, example, pass and thus to patory duty known—that the officer had a to dis- prosecutor, it would be a viola- on to particular close the information at issue. That the tion of the Due Process Clause. Foreknowledge illegality would be be- merely negligent, officer was or even thus, point; practical side the as a could have under- no reasonable officer matter, qualified immunity would no be time, significance the clue’s at the stood immunity at all. defense; Brady duty no would be if the clue could have absolute. So B. changed the result of the criminal defen- reason, then, good appel- For no federal trial, dant’s first the defendant would not Brady’s late court has extended no-fault one; enti- only get a second he would be regime officers. Two circuits pay the officer him for his tled to have directly; have addressed the issue troubles as well. pointedly both of them refused to make only from exposure This would arise White, the extension. In Porter v. considered in isolation. We must evidence (11th Cir.2007), F.3d 1294 the court “h[e]ld cumulatively in consider evidence deter- Brady that the no-fault standard of care materially it mining exculpatory whether *49 in imposes prosecutors on the criminal or purposes Brady, Kyles, for of see 514 U.S. § in place habeas context has no a 1983 at 115 so an officer’s fail- S.Ct. damages against action a law enforcement dots, exculpatory ure to connect the as plaintiff alleges official in which the a vio- well, him damages. would render liable for at process.” lation of due Id. 1306. The Two, of, any pieces of or indeed number information, negligent court thus concluded that “a act unim- might have seemed provide cannot for investigator to a at the or omission basis portant reasonable 404 revealing heavy is Moldowan’s
liability
seeking compen-
in a
1983 action
Still more
major-
liberty
for
of
occasioned
reliance—and to a lesser extent the
sation
loss
ity’s'
at
in
in Hilliard
v.
Brady violation.” Id.
1308. And
our decision
—on
(6th
Villasana,
Williams,
Cir.1975),
held that a
F.2d
Eighth
Circuit
516
1344
apply
likewise
424
part,
“bad faith standard should
vacated in
(1976).
that law
729
The failure-
process
to due
claims
enforcement
L.Ed.2d
preserved
officers
evidence favorable to to-disclose claim there was asserted
it.”
against
prosecutor,
the defense but failed
disclose
defendant
Williams,
officer,
police
F.3d at 980.
not
defendant
(“Williams
id. at 1349
withheld
Clark. See
majority
None of the cases
cites
indicating
F.B.I.
report
an
there was
Brady’s
duty of
actually imposes
absolute
jacket”).
[plaintiffs]
no blood on
The Su-
upon police
disclosure
officers. Most of
preme
vacated our decision as to
liability
precisely
for
them instead find
that claim on direct review. The other
give
sort of bad-faith conduct
would
case,
Clark,
claim the
Officer
liability
virtually any
under
rise to
stan-
upon
“deceptive
was based
his
and mis-
See,
City Chicago,
v.
e.g.,
dard.
Jones
”
leading testimony
at
criminal
Hilliard’s
(7th Cir.1988)
(finding
856 F.2d
added).
(emphasis
trial.
Id.
Which is to
liability
“retaining
for
records
clandes-
say,
a police-disclosure
Hilliard was not
deliberately
pros-
tine files
concealed from
Moreover,
Clark,
at all.
as to
we
case
counsel”);
ecutors and defense
v.
Hart
thought
plain
“it
that a law enforcement
(5th
O’Brien,
Cir.1997)
127 F.3d
evasive,
knowingly gives
officer who
mis-
§a
(permitting
“against
po-
1983 claim
leading,
deceptive testimony during
who,
learning
patently
lice officer
after
escape
criminal trial cannot
civil liabili-
evidence,
exculpatory
deliberately fails to
ty[.]”
holding
Id. That
too has since been
(internal
prosecutor”)
it to the
disclose
Supreme
invalidated
Court. See
omitted).
quotation marks
LaHue,
325, 328,
Briscoe v.
Spurlock
Nor do our
own decisions
(1983) (“all
qualified immunity goes
today,
majori-
to whether there
The issue before us
as the
observes,
genuine
ty correctly
exists a
issue of fact for trial
...
is one of law rather
jurisdiction
this Court lacks
to entertain
than
And I
it
policy.
would decide
appeal from the
I
apply—
[the officer’s]
district
such. The standard that would
qualified immunity
Eighth
court’s denial of
and the one the
and Eleventh Cir-
violations”) (em-
claim Brady
apply
Plaintiffs
cuits
the one that the
—is
added).
phasis
always applied
Court has so far
to deter-
*50
in
liability
imposed
prosecutor,
officer
the “area of consti
above” that
on the
mine
id.
56,
333,
evidence”: at
tutionally guaranteed
by failing
preserve
access to
109 S.Ct.
Young
that,
v.
namely, bad faith. Arizona
evidence. And the Court held
blood,
51, 55,
333,
violation,
Youngblood
488 U.S.
109 S.Ct.
establish such a
had
(1988) (quoting
prove
police destroyed
United States
that the
L.Ed.2d
the evi-
Valenzuela-Bernal,
858, 867,
58,
in
458 U.S.
dence
“bad
Id. at
faith[.]”
109 S.Ct.
(1982)).
3440,
The Court therefore considered whether
There remains the
whether
duty
claim
can
against Ingles
pro-
had violated a
“over and Moldowan’s
*51
3.
stan-
Youngblood’s
under
bad-faith
ceed
upon Ingles’
That claim is based
dard.
agreement suggests,
that bottom-line
As
convey
prosecutor
to
to the
failure
majority may
my disagreement with the
In-
Burroughs’ statement
of
substance
prove larger
theory
practice.
in
than in
aspects
Burroughs’
of
testimo-
gles. Two
suppres-
To establish
officer’s conscious
First,
view,
he
ny,
my
are critical.
materially exculpatory evidence-
sion of
heard two
personally
testified that he had
must
plaintiff
and thus his bad faith-a
Moldowan—
of whom was
men—neither
things,
police’s
other
“the
prove, among
rape
standing
Fournier’s
while
discussing
That
exculpatory
next to his house.
value of the
knowledge
outside
house
(as
be) in
testimony, when
it must
viewed
the criminal defen-
evidence at the time”
Moldowan,
light
most favorable to
says it
have been disclosed.
dant
should
interpreted
meaning
could be
*,n.
Youngblood,
Brady’s absolute Plaintiffs-Appellants, officers, scope but limits the lice materially exculpa- whose duty to evidence particular known to the tory value was YATES, Brent In his individual approach I think the better officer sued. al., capacity, and official et apply simply would be Defendants-Appellees. rule, rather than a modi- Court’s bad-faith designed rule fied version of absolute No. 08-3633. however, prosecutors. practice, for Appeals, United States Court of probably operate latter rule will Sixth Circuit. equivalent functional of the former.
Argued: June 2009. D. Aug. Decided and Filed: one I otherwise concur exception, With majority’s disposition of the remain-
ing exception claims the case. The con- 26, in
cerns Count which Moldowan claims City §
under 1983 that the is liable destruction of evidence. “A mu-
Schultz’s ... be
nicipality cannot liable under
§ underlying 1983 absent an constitutional
violation its officers.” Blackmore v. (6th County,
Kalamazoo
Cir.2004). above, As discussed Schultz did
not violate Moldowan’s constitutional
rights disposed when he of the evidence City
from Moldowan’s first trial. The
therefore cannot be liable under 1983 on
this claim. reasons, partially
For these I concur judgment, respectfully dissent in
part.