Mark Norman CLEARY, Plaintiff-Appellant, v. COUNTY OF MACOMB, et al., Defendants-Appellees.
No. 09-1441.
United States Court of Appeals, Sixth Circuit.
Feb. 2, 2011.
890
OPINION
McKEAGUE, Circuit Judge.
Mark Norman Cleary was convicted in a state court in Michigan of sexually assaulting his daughter and spent sixteen years in prison. After his daughter recanted her allegations, he moved for and was granted a new trial. Prior to the start of the second trial, the government dismissed the charges against Cleary. Cleary then filed
I. BACKGROUND
A. Factual History
1. Investigation
Cleary‘s complaint sets forth the following facts. In the early part of 1987, Cleary and his former girlfriend, Susan Schwartz, were involved in a dispute in Macomb County, Michigan, over Cleary‘s right to visitation with their two young daughters, Rachael, then age seven, and Kristi, then age five. Before the Macomb County Friend of the Court Referee could make a recommendation in the case, Schwartz‘s mother, Donna Simon, called Macomb County Child Protective Services and alleged that Cleary had sexually assaulted Rachael approximately one year before, in February 1986. Child Protective Services assigned the case to Macomb County social worker Nancy Szlezyngier, who contacted Schwartz and visited Schwartz, her husband Gary, Simon, Rachael, and Kristi at their home shortly thereafter. Szlezyngier interviewed both Rachael and Kristi, and provided them with anatomically correct dolls in order to have them demonstrate any sexual abuse, though neither girl was responsive to the dolls. However, Rachael did tell Szlezyngier that Cleary had touched her “potty” with his hands and mouth, that this had occurred while she was in bed with Cleary and Kristi, and that Kristi was not touched by Cleary. Szlezyngier also learned that Rachael had told Schwartz about the alleged abuse after watching a cartoon about strangers.
Following this visit, Szlezyngier contacted Warren Lamb, a detective with the Macomb County Sheriff‘s Department, and informed Lamb that Schwartz wanted to have Cleary prosecuted for the alleged abuse. Lamb attempted to contact Schwartz on various occasions, but received no response. Szlezyngier also filled out a form with the Macomb County Child Sexual Abuse Trauma Team (“CSATT“) to request its services in the matter, noting that Kristi also told Schwartz that Cleary had sexually assaulted her. Additionally, Szlezyngier contacted social worker Therese L. Wolf and informed her about the case, indicating that it was difficult because of the “apparent animosity” held by Simon and Schwartz for Cleary, which had been expressed in front of the children.
Wolf then made her own visit to the Schwartz home, meeting with Schwartz, Gary Schwartz, Rachael, and Kristi. During her visit, Wolf learned that Schwartz and Cleary had a “rocky” relationship; that Cleary had been abusive towards her and the children while they had been living together; and that Cleary had recently stopped making child support payments. Schwartz also told Wolf that a year after the alleged abuse, she had caught Kristi and the young son of a friend in bed together with their clothes on, “each touching their private areas.” With regard to the specific abuse allegations, Rachael stated that she (Rachael), Kristi, and a man named Jack Swanger were all in bed
About a week after his initial phone call, Schwartz called Lamb to set up an appointment to come in that day to discuss the incident at the Sheriff‘s Department, though Schwartz canceled the meeting before it took place. Instead, Lamb and Schwartz discussed the matter over the phone, and Schwartz told Lamb that she ended her relationship with Cleary after numerous assaults on her took place in January 1986 and that their relationship was generally tumultuous. Schwartz also stated that she had discovered Rachael, Kristi, and some other children playing “doctor” at a friend‘s house, and that when scolded for doing so, Rachael replied that “daddy does it.” Being alerted to the possibility of sexual abuse, Schwartz had a discussion with Rachael, who said that Cleary took Rachael and Kristi into bed with him and then put his face in Rachael‘s “private spot and used his fingers on her.” Rachael told Schwartz that she had not mentioned the incident earlier because she did not think anything was wrong with it until she saw a cartoon at Schwartz‘s friend‘s house. She also stated that similar incidents had occurred prior to that one, before Schwartz had left Cleary, and also that Jack Swanger and Kevin McCarthy, both friends of Cleary, had “us[ed] their fingers on her.” Schwartz indicated to Lamb that Cleary was attempting to gain custody of the girls and stated that she wanted to see him prosecuted for the alleged abuse, though she did not mention prosecution of either McCarthy or Swanger. Although Schwartz scheduled a time to come in to discuss the matter with Lamb in person, that meeting never took place.
A few weeks later, Wolf began individual counseling sessions with Rachael. During one of these sessions, Wolf talked with Rachael about testifying in court, and Rachael stated that she was afraid of going to jail if she made a mistake. Around this same time, Wolf contacted Szlezyngier and told her that there were communication problems between Rachael, Schwartz, and Simon. Szlezyngier then wrote a letter to Lamb, informing him of the information given to her by Rachael during her interview and indicating that she would continue to assist him in the investigation. Szlezyngier also completed an investigation report, in which she stated that Schwartz was adamant that Cleary be prosecuted for his actions, but that the charges being pursued were only against him and not against the others, despite the fact that Rachael had told her that Swanger had done the same things to her that Cleary did and had touched Kristi. Szlezyngier also expressed concern that the allegations had been made due to the ongoing custody battle between Schwartz and Cleary, and she included the name of the judge, the name of the friend of the court assigned to the case, and the case number, but stated she had not contacted Cleary, as that would be done by Lamb. Only two days after drafting the report, Szlezyngier
A few weeks after beginning their counseling sessions, Rachael gave Wolf a note that said that Cleary “squirted ‘semen’ on Rachael‘s candy,” which was information that she had previously forgotten to tell Wolf. A few days later, Lamb was finally able to meet with Rachael, Schwartz, and Simon at Schwartz‘s home. Lamb‘s notes from the meeting reflect that Rachael was “hyperactive and silly and extremely shy” and that she “expressed a lack of ability to relate the events of the incident.” Lamb did learn, however, that on the day the alleged abuse took place, Rachael had gone to Cleary‘s mother‘s house and Cleary had picked up her and Kristi and taken them to his home. That evening, the three were watching television on the couch; Rachael was wearing only a tee shirt and underwear, and Cleary was wearing underwear only. Kristi had fallen asleep and Cleary, who had been drinking soda but then started drinking beer, gave Rachael a candy bar that he had “squirted his penis on.” Rachael stated that she did not want it, but Cleary forced her to eat it. Rachael informed Lamb that Cleary took off his underwear and “touched her down there,” indicating on the doll and calling it her “potty.” Rachael also stated that Cleary had put his “potty” into her mouth and into her “potty,” that he had “put his ‘potty’ also in her rectum area,” and that he threatened to kill her, Kristi, and Schwartz if she told anyone about what he had done. Rachael stated that Cleary had assaulted her on six separate occasions, and that on two of those occasions Swanger and McCarthy also assaulted her.
A few days later, Rachael spoke with Wolf and Simon, and they discussed how Rachael, Schwartz, and Gary Schwartz had “played court,” and how Rachael felt that she had to testify because Schwartz wanted her to do so. Wolf and Simon told Rachael that if she did go to court, Cleary “could get help.” Wolf spoke with Lamb the next day, and Lamb stated that Rachael was a weak witness. Lamb also told Wolf that he did not want Schwartz “playing Court” with Rachael, and he asked Wolf to tell Schwartz to discontinue that behavior.
The next day, Kathleen Beard of the Macomb County Prosecutor‘s Office sought an arrest warrant for Cleary, which was issued five days later by a judge of the district court. Schwartz was listed as the complaining witness, and she had signed the felony complaint. Two days after the arrest warrant issued, Szlezyngier received a report from Dr. Charles J. Barone, who had performed a physical examination on Rachael. The report stated that Rachael‘s genital examination was “abnormal,” and that “[h]er hymenal opening is 8-10 mm and hymenal membrane is absent on the superior aspect. Normally at this age a child‘s opening is 4 mm and the hymen is usually intact.” The report concluded that this was “consistent with the history that the child gives.” That same day, Lamb attempted to contact the friend of the court assigned to the Schwartz/Cleary custody dispute, but he was only able to leave a message.
2. Arrest and Trial
On April 27, 1987, approximately two months after the initial allegations of abuse were made and while he was at the Macomb County Circuit Court for the scheduled hearing on visitation, Cleary was arrested for criminal sexual conduct in the first degree. The next day, Prosecutor Beard met with Wolf, Rachael, and Simon, at which time Rachael stated that she did not want to go to court and “was being compelled to do so.” A few days later, Rachael also told Simon, who then told Wolf, that she did not want to go back to
Following a preliminary hearing on June 8, 1987, at which Schwartz and Rachael testified, a district court judge bound over Cleary to the circuit court for trial on a charge of criminal sexual conduct in the first degree. The trial began on January 11, 1989, and Schwartz, Rachael, Barone, Szlezyngier, Wolf, Simon, Dwaihy, and Lamb all testified. Rachael testified that Cleary had touched her “private spots” and had hurt her, that he had used his fingers to touch her “potty” but that she did not remember touching Cleary‘s “potty,” that Kristi was not in bed with her and Cleary when the alleged abuse took place, that she did not remember saying “daddy does it to me,” and that she calls her vaginal area her “private spot” and not “potty.”
Barone testified that he had received a call from either protective services or Macomb Family Services regarding Rachael, and that his examination of her “fell out of range of normal.” Although he found no scars or tears, he testified that hymen openings range from four to seven millimeters, and that Rachael‘s opening was between eight and ten millimeters. However, he also added that “actual size openings are hard to correlate to sexual abuse,” and that ten millimeters was not proof of sexual abuse. He stated that there were no specific findings highly correlated with penetration, the examination could be considered normal, and no conclusion could be made based on Rachael‘s results. Szlezyngier testified that she was responsible for initiating the investigation and relayed the details of her interview with Rachael. She further testified that motive should be looked at when allegations of sexual abuse are brought during a custody dispute, but she stated that there was never an independent investigation regarding the dispute between Schwartz and Cleary. She also testified that she had only interviewed Rachael once for thirty minutes and that she never attempted to speak with Cleary.
Wolf testified that she was a therapist with CSATT, and that although she was part of the Cleary investigation, she had only discussed the specifics of the incident with Rachael once. She also testified that she had considered the custody dispute and Sexual Allegations in Divorce Syndrome, but that it was nowhere in her notes. Finally, she stated that she only obtained history pertaining to the alleged incident from Schwartz. Lamb also testified, stating that he only spoke with Rachael once, that the warrant for Cleary‘s arrest was sought prior to the results of the physical examination by Barone, and that he was aware of the custody dispute but had not reviewed the friend of the court file. At the conclusion of the trial, the jury found Cleary guilty.
3. Exoneration
On August 27, 1997, Rachael provided a sworn statement and testified under oath that she had told Schwartz that the allegations against Cleary were not true; that
B. Procedural History
In December 2006, Cleary filed a complaint in the United States District Court for the Eastern District of Michigan, pursuant to
Barone and Henry Ford Health System filed a motion to dismiss the complaint pursuant to
Following a May 8, 2007 motions hearing, the district court issued its first opinion and order resolving the motions to dismiss brought by defendants Barone and Henry Ford Health System, Szlezyngier, Macomb County and Lamb, and Wolf. Cleary v. County of Macomb, et al., No. 06-15505, 2007 WL 2669102 (E.D.Mich. Sep. 6, 2007) (“Cleary I“). At the motions hearing, Cleary agreed to dismissal of the only state law claims against Defendants, Counts VI and VII for intentional and negligent infliction of emotional distress, and admitted that Counts V and VIII were not separate state claims, but rather summarized and described some of the relevant conduct by Defendants as it pertained to Cleary‘s alleged constitutional claims in Counts I, II, and IX. Id. at *6-7. Cleary also conceded that his claims of false arrest and false imprisonment were time barred and agreed to dismiss Henry Ford Health System as a defendant. Id. at *7. Accordingly, the district court dismissed Counts III, IV, VI, VII and Henry Ford Health System as a party, and “limit[ed] its analysis to the remaining claims Defendants’ [sic] [sought] to dismiss and construe[d] Counts V and VIII of [Cleary‘s] Complaint not as a separate state causes of action, but as causes of action inclusive in Counts I, II, and IX.” Id.
The district court then addressed the untimeliness of some of Cleary‘s claims, Defendants’ claimed entitlement to absolute and qualified immunity, and Cleary‘s alleged failure to state a claim. First, construing Cleary‘s complaint as raising claims of malicious prosecution, the court found that Cleary had timely filed his complaint. Id. at *7-8. The court also determined that defendants Barone, Szlezyngier, and Wolf were not entitled to absolute immunity. Id. at *9-10. However, the court determined that Cleary‘s complaint failed to allege facts to demonstrate that Barone acted under color of state law, a necessary element of a
With regard to qualified immunity, the district court found that Cleary had failed to state a claim for deprivation of his constitutionally protected liberty interest in familial association against any Defendants and dismissed that claim in its entirety. Id. at *13-14. It also concluded that Cleary had not alleged facts to show that Barone, Szlezyngier, or Wolf had violated Cleary‘s Fourteenth Amendment right to due process or his Fourth Amendment rights, as encompassed in his malicious prosecution and continued detention without probable cause claims, and thus these defendants were entitled to qualified immunity and were dismissed from the action. Id. at *14-18, *21. However, although the court determined that the facts alleged did not support a Fourteenth Amendment claim against Lamb for fabrication of evidence, it did find that the facts were sufficient to state a claim that Lamb had violated Cleary‘s Fourth and Four-
Shortly after the court issued its opinion and order, Cleary voluntarily dismissed defendant Schwartz without prejudice, pursuant to
On March 24, 2009, the district court issued a second opinion and order, in which it resolved Macomb County and Lamb‘s motion for summary judgment, as well as motions to strike exhibits from the various pleadings. Cleary v. County of Macomb and Warren Lamb, No. 06-15505, 2009 WL 837703 (E.D.Mich. March 24, 2009) (“Cleary II“). First, the court determined that although “the finding of probable cause could have gone either way,” the court could not conclude “that Lamb knew or should have known that [Cleary] was innocent.” Id. at *6. Thus, Lamb‘s conduct did not cause Cleary to be detained without probable cause, and Lamb was entitled to summary judgment on Cleary‘s Fourth Amendment claim. Id. at *4-6.
The court also found that Lamb was entitled to summary judgment on Cleary‘s Fourteenth Amendment claim because the evidence challenged by Cleary was not actually withheld by Lamb, not within Lamb‘s actual knowledge, or not favorable or materially exculpatory for Cleary. Id. at *6-9. Finally, the court found that because Cleary had failed to establish a violation of his constitutional rights, his claim against Macomb County must also fail. Id. at *8-9. Accordingly, the court granted summary judgment in favor of both Lamb and Macomb County, and because it did not need to rely on any of the opposed exhibits, it denied all motions and requests to strike accompanying exhibits as moot. Id. at *9. Cleary then filed a timely notice of appeal.
II. ANALYSIS
This case spans several decades, implicates a number of parties, and involves complex and somewhat disturbing allegations. Yet, Cleary does little to present a clearer picture for this court on appeal. In his brief to this court, Cleary asserts that he is raising the following five claims:
- Whether an alleged child victim‘s statements are sufficiently reliable to establish probable cause, where an investigating arm of the prosecution turns a blind eye and withholds potential excul-
patory and/or impeaching evidence in order to put a case together and pin a crime on a potential suspect?; - Whether a private actor, operating as an agent of law enforcement and as a member of the prosecution team, while conducting a criminal investigation, is acting under the color of law?;
- Is a member of the prosecution‘s team protected by qualified immunity when that member withholds and/or misrepresents potential exculpatory or impeaching evidence from the prosecutor and Court?;
- Whether it was appropriate for the District Court to exclude affidavits timely filed by Plaintiff-Appellant in opposition to a motion for summary judgment?;
- Whether it was appropriate for the District Court to grant summary judgment without permitting Plaintiff-Appellant to conduct further pertinent discovery?
A review of the parties’ briefs, the district court record, and the orders from which Cleary appeals reveal that Cleary is essentially raising the following four challenges: (1) whether the district court properly granted Barone, Szlezyngier, and Wolf‘s motions to dismiss; (2) whether the district court properly granted summary judgment in favor of Lamb and Macomb County; (3) whether the district court erred in not considering three affidavits submitted by Cleary with his response in opposition to Lamb and Macomb County‘s motion for summary judgment; and (4) whether the district court erred in not permitting Cleary to engage in additional discovery. Accordingly, we address these four issues in turn.
Following Cleary‘s concessions at the hearing on the motion to dismiss, the district court determined that Cleary‘s complaint properly raised the following claims against Szlezyngier, Wolf, Barone, and Lamb: (1) continued detention without probable cause, in violation of the Fourth Amendment; (2) failure to disclose exculpatory impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Fourteenth Amendment; and (3) fabrication of evidence, in violation of the Fourteenth Amendment. In Gregory v. City of Louisville, 444 F.3d 725 (6th Cir.2006), this court held that where a plaintiff alleges that he was detained without probable cause, such a claim is not one for malicious prosecution (though such a claim may still be raised, as we explained in Sykes v. Anderson, 625 F.3d 294 (6th Cir.2010)), but instead one for “continued detention without probable cause” in violation of the Fourth Amendment. Id. at 747-48. Citing to the Supreme Court‘s decision in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and this court‘s decision in Spurlock v. Satterfield, 167 F.3d 995, 1006-07 (6th Cir.1999), the court in Gregory explained that no new constitutional right was created, but rather that the cause of action was being “restyled” from a Fourteenth Amendment claim to one pursued under the Fourth Amendment, and should be analyzed accordingly. Gregory, 444 F.3d at 748-50; see also Pitt v. District of Columbia, 491 F.3d 494, 510-11 (D.C.Cir.2007) (summarizing cases from and joining with the majority of circuits that held “that malicious prosecution is actionable under the Fourth Amendment to the extent that the defendant‘s actions cause the plaintiff to be ‘seized’ without probable cause“). Moreover, this applies to other individuals working for the police, and not just law enforcement officials. See Gregory, 444 F.3d at 749 n. 11 (holding that a forensic examiner “in the employ of the state police” could be liable in a claim for continued detention without probable cause).
Finally, “[i]t is well established that a person‘s constitutional rights are violated when evidence is knowingly fabricated and a reasonable likelihood exists that the false evidence would have affected the decision of the jury.” Gregory, 444 F.3d at 737 (citing Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir.1997)). Thus, the district court correctly determined that Cleary had raised a proper constitutional claim under the law in this circuit. However, neither in the district court nor on appeal has Cleary once asserted that any of the remaining defendants fabricated evidence, instead raising only claims of Brady violations by withholding exculpatory evidence, so we need not address this fabrication claim.2 Accordingly, we must determine whether the district court was correct in finding that Cleary had not alleged facts sufficient to state a violation of his constitutional rights by Szlezyngier, Wolf, and Barone, and whether or not Lamb and Macomb County were entitled to summary judgment on these two remaining claims. See Roberts v. Ward, 468 F.3d 963, 967 (6th Cir.2006) (“Because the district court addressed the various claims in separate orders, one addressing the pleadings and the second at the summary judgment stage, we must evaluate each claim in light of the procedural posture under which it was dismissed.“).
A. Motion to Dismiss:
Cleary first challenges the district court‘s September 6, 2007 order dismissing all claims against defendants Szlezyngier, Wolf, and Barone because Cleary had not pled facts sufficient to find that those defendants violated his constitutional rights, and therefore they were entitled to qualified immunity. As noted, Cleary filed his complaint pursuant to
It is well-established that “[t]he doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172
“We review de novo the district court‘s grant of a
Although many pages of his brief are spent challenging the findings made by the district court in its order granting Lamb and Macomb County‘s motion for summary judgment, Cleary spends little time addressing the district court‘s determinations regarding qualified immunity as to defendants Szlezyngier, Wolf, and Barone. However, regardless of the arguments presented in his brief as to his claims against these defendants, counsel for Cleary conceded at oral argument that “every single piece of information that every other one of these investigatory team members had” was actually in Lamb‘s possession.4 Thus, by Cleary‘s own admission, he has no constitutional claim against any of these defendants, because both his Fourth Amendment continued detention without probable cause and Fourteenth Amendment Brady claims were based on allegations that these defendants withheld information
B. Summary Judgment:
Cleary also challenges the district court‘s grant of summary judgment in favor of Lamb and Macomb County. “We review a district court‘s grant of summary judgment de novo and draw all reasonable inferences in favor of the nonmoving party.” Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir.2010). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
1. Lamb:
At the summary judgment stage, Cleary had two claims remaining against Lamb: (1) a Fourth Amendment claim alleging continued detention without probable cause, and (2) a Fourteenth Amendment claim alleging a Brady violation that prevented Cleary from receiving a fair trial, both due to Lamb‘s failure to disclose evidence. In the motion for summary judgment, Lamb again argued that he was entitled to qualified immunity. As noted, a government official is immune from civil liability unless, in the course of performing his discretionary functions, he violates the plaintiff‘s constitutional right and that right was clearly established. See Aldini,
In finding that Cleary failed to state a Fourth Amendment claim for continued detention without probable cause as a result of withholding evidence, the district court stated that while it “share[d] in Plaintiff‘s concerns regarding the credibility of Rachael‘s allegations in light of all the facts and circumstances,” Lamb was entitled to discretion in analyzing Rachael‘s allegations and that he had probable cause to pursue the charges against Cleary. Cleary II, at *5-6. The court stated that, “at worst ... the finding of probable cause could have gone either way,” but that because Lamb did not know nor should have known that Cleary was innocent, Cleary failed to demonstrate that his Fourth Amendment rights were violated. Id. at *6. Although the court correctly concluded that Cleary‘s Fourth Amendment rights were not violated, the issue is not whether there was probable cause based on the information presented to the prosecutor and ultimately to the court, but whether evidence withheld by Lamb that otherwise should have been disclosed would have “dissolved” probable cause.7 See Gregory, 444 F.3d at 750. For there to be probable cause for an arrest, “the facts and circumstances within the officers’ knowledge must be sufficient to warrant a man of reasonable caution to believe that an offense had been, was being, or was about to be committed.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir.2007). However, “[a] finding of probable cause does not require evidence that is completely convincing or even evidence that would be admissible at trial; all that is required is that the evidence be sufficient to lead a reasonable officer to conclude that the arrestee has committed or is committing a crime.” Harris v. Bornhorst, 513 F.3d 503, 511 (6th Cir.2008). In other words, there must be more than “[a] mere suspicion of criminality.” Id.
With regard to his Fourteenth Amendment claim, the district court held that all of the evidence allegedly withheld by Lamb was “either not withheld by Lamb, not within Lamb‘s actual knowledge, or not favorable or materially exculpatory” for Cleary. Cleary II, at *6-9. The district court properly explained that, when bringing a Brady claim alleging that exculpatory evidence was withheld, the plaintiff bears “the burden of establishing that the prosecutor suppressed evidence,” that the evidence was favorable to the defense, and that it was material, meaning that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Warshak, 631 F.3d 266, 300 (6th Cir.2010); see also Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Because Cleary asserts that withholding of the same pieces of evidence violated both his Fourth and Fourteenth Amendment rights, our analysis will address both claims together.
On appeal, although Cleary asserts that Lamb “never reported over twenty-one (21) essential pieces of the puzzle to the prosecutor,” he ultimately argues that only five specific pieces of evidence were improperly withheld or misstated by Lamb, resulting in a violation of his Fourth and Fourteenth Amendment rights. First, Cleary argues that Lamb improperly with-
Moreover, there is nothing to suggest that this evidence would have been material or would have called Rachael‘s credibility or reliability into question for the purposes of Cleary‘s Brady claim. Cleary asserts that the information about Kristi, specifically the note on the CPS intake sheet, “could have persuaded a jury to render a not guilty verdict; Kristi would have been a child witness testifying to the exact opposite of Rachael during trial.” Cleary explains that this fact was of “critical importance because when Kristi denied being sexually abused by Cleary, consistently, these facts, in union with Rachael‘s inconsistency and other factors, were potentially exculpatory and impeaching to Cleary.” However, Cleary‘s argument is flawed. Cleary himself stated that Kristi consistently denied that she was abused so, had she testified, she would not have testified to the exact opposite of Rachael. Rather, their testimony would have been consistent because Rachael testified at the trial that only she had been abused.
Cleary next argues that his Fourth and Fourteenth Amendment rights were violated when Lamb stated in his report that Rachael brought in her own doll and demonstrated penetration with it during her interview with Lamb. Cleary argues that “[t]his material misrepresentation would tend to cast more doubt on the credibility of not only Rachael, but Wolf as well.” Cleary asserts that Lamb‘s misrepresentation about the fact that Rachael brought in and used her own dolls to demonstrate abuse gave the jury “two consecutive separate interviews with Rachael demonstrating thorough sexual penetration with dolls,” but that “[h]ad Lamb been honest ... a jury would have had two separate interviews where Rachael did not use the dolls in any way....” Cleary argues that her refusal to use the dolls brought by Lamb to his interview with Rachael would have “made her allegations even more suspicious and her inconsistencies greater.”
Although Cleary asserts rather pointedly that “Lamb lied” about Rachael bringing her own dolls to her interview with Lamb, Cleary grossly misstates the information in Lamb‘s report to support this allegation. In fact, the report does not explicitly state that Rachael brought her own dolls to the interview; rather, Lamb writes in the report that when she was asked to explain what “down there” was referring to, Rachael “indicated on her doll
Cleary also alleges that Lamb withheld the fact that Rachael “played court” with Schwartz. Again, Cleary does not argue that disclosing this evidence would have dissolved probable cause, and the record does not demonstrate that it would have. Although the fact that Schwartz and Simon “played court” with Rachael may be problematic, it is also not entirely surprising given the fact that Rachael, a seven-year-old child, had previously expressed fear about going to court. Moreover, prior to seeking the arrest warrant, Rachael consistently relayed to all individuals who interviewed her that she had been abused by Cleary and had provided significant details about these assaults, all of which was presented to the prosecutor and the court in order to demonstrate probable cause. The fact that Rachael may have played court is simply not enough to dissolve probable cause as it existed at the time of the arrest warrant.
With regard to his Fourteenth Amendment Brady claim, Cleary argues that although the district court asserted that this information would have been cumulative for impeachment purposes, “the government cannot satisfy its Brady obligation to disclose exculpatory evidence by making some evidence available and claiming the rest would be cumulative.” Instead, Cleary argues that the government was obligated to disclose all material relating to the credibility of a government witness, and that the district court was required to view this evidence “in the more sinister slant.” Ultimately, Cleary‘s claim seems to argue primarily that this information could have been used to impeach Rachael. However, Rachael‘s credibility already was significantly undermined at both the preliminary hearing and the trial, as Cleary himself acknowledges in his complaint, because she would not identify where she was touched by Cleary, did not use the word “potty” consistently as she had previously, the facts of her story changed at
Cleary next argues that Lamb violated his Fourth and Fourteenth Amendment rights by failing to disclose that Rachael had written a note to Wolf that used the words “penis” and “semen.” Cleary claims that “it is of no moment that Lamb never saw or had possession of the note,” because Wolf had seen the note, therefore “without a doubt, Lamb had knowledge of the note content through his several conversations with Wolf and Szlezyngier.” First, Cleary‘s complaint indicates that the note given to Wolf only used the word “semen,” and stated that Cleary squirted “semen” onto her candy. In fact, Cleary was aware of Rachael‘s use of the word “penis,” because it was revealed in Lamb‘s report, which was submitted for the purpose of obtaining the arrest warrant. More importantly, Cleary does not deny in his brief that Lamb never saw or had possession of the note given to Wolf by Rachael. In fact, Cleary argues that Lamb had knowledge of the contents of the note through his conversations with Wolf and Szlezyngier. To the extent the note reflected Rachael‘s allegations that Cleary gave her a candy bar with his semen on it, Lamb had already indicated this in his report (that was disclosed when seeking Cleary‘s arrest warrant), because Rachael had conveyed that information to him during their meeting. All that remains to Cleary‘s allegations then is the fact that Rachael wrote and used the word “semen.” However, because there is no proof that Lamb ever had possession of the note, he cannot now be said to have violated Cleary‘s rights for withholding it.9
Finally, Cleary argues that Lamb should have disclosed that Rachael made allegations in 1988 that Schwartz and Gary Schwartz physically and emotionally abused her, and his failure to do so resulted in a violation of his Fourteenth Amendment rights under Brady.10 Cleary claims that Wolf had knowledge of this information, which was not disclosed to the prosecutor. He also argues that, contrary to Lamb‘s testimony, Lamb was involved in the Cleary case after the arrest warrant issued, and that this is when Beard would
Regardless of Lamb‘s continued involvement in the Cleary case, Cleary has failed to demonstrate that Lamb had any actual knowledge regarding the allegations of physical abuse. Even though a protective services employee may have been required to report violations of the penal code to law enforcement, as Cleary asserts, and even assuming that the allegations of abuse rose to the level of penal code violations, Cleary presents nothing to support his claim that this information was given specifically to Lamb. Any law enforcement officer could have received this information, and there is nothing in the record to demonstrate that Lamb knew of and then failed to disclose these allegations of abuse.
As a result, Cleary has failed to demonstrate that any of the allegedly withheld information resulted in his continued detention without probable cause or a violation of his right to a fair trial under Brady and the Fourteenth Amendment. Although Cleary asserts that the district court did not examine the materiality of the evidence collectively for the purpose of his Brady claim, as it was required to do, a full review of the evidence demonstrates that the court did not err in granting summary judgment in favor of Lamb. See Kyles, 514 U.S. at 436, 115 S.Ct. 1555. Viewing the evidence cumulatively, there is nothing to indicate that the result of his trial would have been different. Accordingly, the district court properly granted summary judgment in favor of Lamb.
2. Macomb County:
The district court also granted summary judgment in favor of Macomb County. On appeal, Cleary argues that Macomb County is not entitled to summary judgment because questions of fact remain “regarding whether the constitutional deprivations in the arrest of Cleary, the withholding of exculpatory and impeaching information, and the misrepresentation of such information were caused by the County‘s custom, policy and practice of not training, supervising, or acquiescing in the unconstitutional conduct of its officers.” Under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality may be liable to a plaintiff under
3. Affidavits
Additionally, Cleary argues that the district court erred when it failed to consider three affidavits submitted in support of his response to the motion for summary judgment. Specifically, Cleary attached one affidavit from George Kirkham, an expert in police practices; one from Schwartz; and one from Dr. Gordon Blush, a psychologist employed by Macomb County. Cleary argues that the court should have considered these three affidavits, and its failure to do so constitutes grounds for
Despite Cleary‘s assertions, Schwartz‘s affidavit does not create a genuine issue of material fact. In her affidavit, Schwartz states that Lamb brought an anatomically correct doll to his meeting with Rachael, and that “Rachael did not want to play or use the doll in any manner.”11 Regardless of whether Rachael wanted to use the doll, the affidavit simply does not state that she did not actually use the doll, as Lamb indicated in his report. Thus, the affidavit does not create a genuine issue of material fact and it is not otherwise relevant to or necessary for resolving Cleary‘s claims. As to the expert affidavits, Kirkham‘s affidavit presents his assessment of “the failures and omissions of Sgt. Lamb” and other issues in the case. Blush‘s affidavit also challenges Lamb‘s conduct, and specifically concludes that he did not properly investigate the allegations of abuse in light of the existing custody dispute. Although Cleary argues that these affidavits are based on facts in the record and that the “expertise” of these two individuals “goes to the heart of the issues before the court,” neither of these affidavits were necessary to resolve Cleary‘s claims, and in large part they do little more than repeat matters already raised by Cleary in his pleadings. Thus, the district court did not err in failing to consider these when deciding on the motion for summary judgment.
C. Discovery
Finally, Cleary argues that “[t]he [d]istrict [c]ourt limited Cleary to five depositions (Lamb, Wolf, Szlezyngier, Beard, and Schwartz),” and that “Cleary has since learned of additional individuals, some never previously disclosed (others known before), who clearly would have firsthand pertinent knowledge to Cleary‘s claims.” Cleary specifically names Dee Cassin, a social worker for Macomb Family Services who reported the 1988 allegations of abuse made by Rachael; Larry Burke, who was Szlezyngier‘s supervisor; Lieutenant Mentzer, Lamb‘s supervisor; Patricia McDonald, Wolf‘s supervisor and project coordinator of the CSATT; Terry Hutton, a counselor from Macomb Child Guidance who was involved with the Schwartz and Cleary family; and Denise Jansen Capp, who performed a psychological evaluation on Rachael. Cleary claims that the district court‘s refusal to address “the issue” was in error, and that the court “should have granted Cleary‘s request and permitted him to pursue the discovery sought.” However, Cleary does not explain why these individuals are relevant to his claim, what information he seeks, or how the court abused its discretion in failing to permit him to depose these individuals. See Plott v. General Motors Corp., 71 F.3d 1190, 1196 (6th Cir.1995).
III. CONCLUSION
The facts as alleged by Cleary present a tragic and regrettable situation that resulted in this plaintiff spending sixteen years in prison, in part because of allegations by his own daughter that were later recanted. Nonetheless, the fault for his incarceration does not lie with the investigators and Macomb County officials named as defen-