Opinion
Case No. 4:99cv 19.
Dated: February 3, 2000.
JUDGMENT
In accordance with the opinion filed this date: IT IS ORDERED AND ADJUDGED that defendants' motions for summary judgment (docket #'s 43, 49) be and hereby are GRANTED and that final judgment is hereby entered in favor of all defendants on all claims against them.
IT IS FURTHER ORDERED that plaintiff's motion for leave to file a third amended complaint (docket # 46) be and hereby is DENIED.
OPINION
This is an action brought pro se by an Alabama prisoner pursuant to 42 U.S.C. § 1983. Plaintiff's first amended complaint (docket # 20) seeks $3 million in damages. Plaintiff's complaint has its origin in his arrest by City of Lansing police officers on April 7, 1998, and plaintiff's subsequent trial, in which a jury found him not guilty of two counts of delivery of cocaine. Plaintiff named the following defendants: Ingham County, the City of Lansing and its police officers Joel Maatman, John Prince, Brad St. Aubin, Michael Wichar, Guy Pace, Traci Ruiz, Dave Sileo, and Jeff Hudak (collectively referred to herein as City of Lansing defendants). The first amended complaint also named state employee, Scott Penabaker, a Forensic Scientist in the Narcotics Subunit of the Michigan State Police Laboratory, as a defendant. Plaintiff's complaint and first amended complaint seek to assert claims under section 1983 for malicious prosecution and false arrest. Defendant Penabaker is charged with presenting false testimony concerning laboratory tests of seized drugs.
Additionally, plaintiff has moved for leave to file a third amended complaint, in which he attempts to assert claims arising from the revocation of his parole in the State of Alabama. In essence, plaintiff asserts that certain officers in the State of Michigan provided information to the Alabama parole authorities leading to the revocation of parole, even though plaintiff had been acquitted in the Michigan courts of criminal charges arising from the same conduct.
The matter is before the court on the motions of all remaining defendants for summary judgment. Plaintiff has not responded to any of the pending motions for summary judgment, even though the magistrate judge entered orders (docket #'s 44, 50) directing him to do so. Nevertheless, plaintiff has made certain submissions to the court during the course of the proceedings, including documents captioned "Plaintiff's Objections to Defendants Answer or Special Report" and "Plaintiff Legal Facts" (docket # 25), and "Plaintiff's Documentary Evidence Under Rule 1732" (docket # 28). The court will take these documents into consideration in determining whether plaintiff has raised a triable issue of fact in support of his federal claims.
By the court's opinion and order of August 9, 1999 (docket #'s 37, 38), the complaint against Ingham County was dismissed as frivolous.
Findings of Fact
Relevant to the pending motion, the following facts appear of record and are not subject to dispute. On the evening of April 7, 1998, defendants St. Aubin and Price (undercover officers of the Lansing Police Department) were working in the area of Hosmer and Kalamazoo Streets in the City of Lansing. St. Aubin and Prince were posing as veterans, and Prince was in a wheelchair, feigning disability. They were attempting to make hand-to-hand purchases of narcotics from street dealers. Officer St. Aubin was walking southbound on Hosmer, pushing Prince in the wheelchair. The officers saw a person, later identified as Aljay Lockett, Jr., walking eastbound on Kalamazoo Street approaching Hosmer.
St. Aubin indicated that he and Prince spoke with plaintiff and that after Prince reported that had "a 20" to spend, plaintiff looked west on Kalamazoo Street and whistled to two people walking along the street. Officers said that plaintiff then motioned for St. Aubin to walk towards these two people, a male and a female, and told them that they would be able to "hook them up," referring to the ability of the man and woman to sell St. Aubin crack cocaine.
St. Aubin and Prince approached the man and woman and purchased crack cocaine from the woman. During this time, plaintiff stayed in the immediate area where the officers were located. The undercover officers then radioed to a surveillance team, who arrested plaintiff and his alleged woman accomplice. Plaintiff was charged in a criminal complaint with two counts of delivery of less than 50 grams of a mixture containing cocaine. MICH. COMP. LAWS § 333.7401(2)(A)(iv). ( See Felony Warrant, attached as Ex. 3 to docket # 49). On or about April 8, 1998, plaintiff was arraigned before a district judge and counsel was appointed. Plaintiff waived a preliminary examination and elected to proceed to trial. ( See Amended Complaint, docket # 20, at 2).
Plaintiff was tried before a jury in the Ingham County Circuit Court, Honorable Thomas L. Brown presiding. ( See Excerpts from Trial Transcript, attached as Ex. 1 to docket # 49. The transcript is cited herein as "TT"). During opening statement, the assistant prosecutor told the jury that the People were proceeding on a theory of aiding and abetting the delivery of crack cocaine. (TT, 77). "We are not alleging that this Defendant in fact delivered the crack cocaine himself. He assisted, he aided and abetted another individual to accomplish that." ( Id.). Officer St. Aubin testified consistently with the facts outlined above. With regard to plaintiff's involvement in the drug transaction, St. Aubin testified that plaintiff asked the undercover officer "what we needed." (TT, 90-91). Plaintiff then looked down westbound Kalamazoo and whistled to two people who were walking about. After plaintiff whistled, he motioned for the officers to walk towards a man and a woman, and they complied. As the officers were walking, plaintiff informed them that the man and woman "would be able to hook us up, which means sell us some crack." (TT, 91).
The officers then met with the man and woman and walked back towards the corner of Hosmer and Kalamazoo. Plaintiff walked with the man and woman for awhile and returned to the officers, asking whether $20 is all that they had to spend. Officer St. Aubin responded that he had "$50 to spend." St. Aubin said that he wanted to sample "his dope" first, before spending any money. (TT, 91-92). The female suspect then walked behind a building and came back a minute or so later with a rock of cocaine for Officer Prince. She thereafter sold Officer St. Aubin three rocks for $50. During the transaction, plaintiff was standing near both the officers.
After St. Aubin was cross-examined, Officer Prince testified concerning the same transaction. (TT, 121-32).
Plaintiff testified in his own defense. He testified that he was walking eastbound along Kalamazoo Street, going towards a Wendy's restaurant. In a parking lot, he met two people, a male and a female, who asked him if he wanted to buy drugs. Plaintiff testified that he refused and that he continued to walk eastbound on Kalamazoo. (Proceedings of June 30, 1998 (TT 2), attached as Ex. 2 to docket # 49, at 53-58).
As he walked along Kalamazoo, plaintiff observed the undercover officers. He testified that St. Aubin initially asked him whether he could help find a woman for Prince, who was confined to a wheelchair. (TT2, 60). Plaintiff responded that he was a married man, and that he didn't "do that." The officers then asked if he could get them drugs. He said, "No, I don't know where you could get that from." (TT2, 61). He testified that the officers continued to press and that they explained that Officer Prince was a Desert Storm veteran and needed the drugs because of his injuries. Plaintiff finally said, "Maybe those people can help you that I just passed down the street." (TT2, 62). The officers then approached the man and the woman, and plaintiff left, because he was beginning to get scared. (TT2, 62).
After the close of proofs, the court gave the jury instructions. Judge Brown explained to the jury that plaintiff was being prosecuted on a theory of aiding and abetting, and defined the elements of aiding and abetting under state law. (TT2, 113-14). The jury acquitted plaintiff.
On March 1, 1999, plaintiff brought the present civil rights action naming the City of Lansing, Ingham County, and a number of officers of the Lansing Police Department The original complaint asserts claims for false arrest and malicious prosecution. It alleges that defendants subjected him to a false arrest, because he did not have in or under his control any controlled substances, that officers provided false information to procure an arrest warrant, and that he was subjected to malicious prosecution. By amended complaint, plaintiff asserted that defendant Penabaker, a forensic scientist with the Michigan State Police, participated in a conspiracy against him by testifying concerning the chemical makeup of the seized substance. Defendant Penabaker has submitted an affidavit to the court, averring that he tested the seized substance by various scientific methods and found the presence of cocaine. Penabaker has also presented to the court copies of his laboratory reports (attached to docket # 43). Plaintiff has not submitted to the court any evidence tending to show that Penabaker's testimony was false or misleading or that the substance purchased by the undercover officers from the co-defendants was not in actuality crack cocaine.
Summary Judgment Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J.C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); Payne v. Board of Educ., 88 F.3d 392, 397 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Williams v. Ford Motor Co., 187 F.3d 533, 537 (6th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52); see also, Mount Elliott Cemetery Ass'n v. City of Troy, 171 F.3d 398, 403 (6th Cir. 1999).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fox v. Van Oosterum, 176 F.3d 342, 347 (6th Cir. 1999). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Holloway v. Ohio, 179 F.3d 431, 436 (6th Cir. 1999). To sustain this burden, plaintiff may not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56(e); Jacklyn v. Schering-Plough Health Care Products Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim. See Oil, Chemical Atomic Workers Int'l Union v. RMI Titanium Co., No. 98-4336, 2000 WL 16554, at * 4 (6th Cir. Jan. 12, 2000); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81; Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989). In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); see Bratten v. SSI Services, Inc., 185 F.3d 625, 629 (6th Cir. 1999); Kensu v. Haigh, 87 F.3d 172, 175 (1996). "Merely alleging the existence of a factual dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material fact." Walton v. Hammons, 192 F.3d 590, 592 (6th Cir. 1999). The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
Discussion I. False Arrest
The Fourth Amendment to the United States Constitution, as applied to the states, safeguards against seizures of the person without probable cause. An officer may arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing a crime. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). A plaintiff bringing a constitutional claim of false arrest under the Fourth Amendment must therefore show that there was not probable cause for the arrest. Stemler v. City of Florence, 126 F.3d 856, 871 (6th Cir. 1997). Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). The establishment of probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983). The existence of probable cause must be determined on the totality of the circumstances. United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) ( en banc). The test is one of objective reasonableness, asking whether, at the moment the arrest was made, officers had probable cause to make it in light of the facts and circumstances within their knowledge. See Donovan v. Thames, 105 F.3d 291, 298 (6th Cir. 1997); Ferguson, 8 F.3d at 391.
In support of their motion for summary judgment, defendants have presented excerpts from the transcript of plaintiff's criminal trial, principally focusing upon the testimony of Officers St. Aubin and Prince. These officers were eye witnesses to the events that took place on April 7, 1998. The facts presented in the testimony of these two officers are certainly sufficient to establish probable cause to believe that plaintiff aided and abetted the sale of crack cocaine. Under Michigan law, one who aids and abets a crime is liable as a principal. MICH. COMP. LAWS § 767.39. The purpose of the statute was to abolish the distinction between aider and abettor and principal. Consequently, a prosecutor need not set forth the theory of aiding and abetting in the criminal information. See People v. Swindlehurst, 328 N.W.2d 92, 94 (Mich.App. 1982). To be convicted as an aider and abettor, a criminal defendant must have aided, encouraged, instigated, or assisted a criminal enterprise in some way. People v. Davenport, 332 N.W.2d 443, 445 (Mich.App. 1982). Certainly, the conduct described by the officers, pursuant to which plaintiff arranged a drug transaction with his alleged accomplices, falls clearly within this definition.
When faced with defendants' well-documented motion for summary judgment, plaintiff was not privileged to rely upon his broad assertions that the charges against him were false. Rather, plaintiff had the burden of coming forward with some evidence to establish the lack of probable cause at the time of his arrest. This he has utterly failed to do. As pleaded, plaintiff's claim apparently relies upon two undisputed, but irrelevant, facts. The first is that plaintiff was acquitted. The mere fact of acquittal does not prove that the initial arrest was made without probable cause. See Baker v. McCollan, 443 U.S. 137, 145 (1979). Alternatively, plaintiff appears to rely upon the fact that the felony information charges him with delivery of cocaine when, as all concede, he never actually possessed the drug. However, as stated above, plaintiff was charged with aiding and abetting the delivery of the drug by others. It was not necessary that the warrant use the words "aiding and abetting," as plaintiff was responsible as a principal if in fact he encouraged and facilitated the transaction. See People v. Berry, 300 N.W.2d 575, 576-77 (Mich.App. 1980) (where defendant arranged, assisted, and facilitated delivery of cocaine, evidence was sufficient to establish offense of delivery, even though defendant never possessed the drug).
The record is devoid of any evidence upon which a reasonable jury could rely in concluding that officers lacked probable cause for plaintiff's arrest. All defendants are therefore entitled to summary judgment on plaintiff's Fourth Amendment claim for false arrest.
II. Wrongful Issuance of Arrest Warrant
Plaintiff further contends that certain defendants, principally Officers St. Aubin and Prince, provided false information to procure the issuance of an arrest warrant. The Fourth Amendment requires that no arrest warrant shall issue except upon a showing of probable cause. See Giordenello v. United States, 357 U.S. 480, 485-86 (1958). It is a violation of the Fourth Amendment for an arrest warrant affiant to "knowingly, or with reckless disregard for the truth," include false statements in the affidavit. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In a section 1983 action seeking to impose liability against an affiant officer, the court is to apply a test of objective reasonableness, asking whether a reasonably well-trained officer faced with the facts known to the defendant would have believed that probable cause existed. Malley v. Briggs, 475 U.S. 335 (1986).
Plaintiff has failed in his burden of coming forward with admissible evidence showing that the officers presented false information in support of their request for an arrest warrant. Again, plaintiff appears to place great stock in the fact that he never actually possessed crack cocaine. There is no evidence before this court, however, that the officers falsely averred that plaintiff was in actual possession of cocaine. Rather, as set forth above, plaintiff was charged for his role in facilitating the drug transaction. In the absence of any evidence that the officers provided false information, plaintiff's claim for wrongful issuance of an arrest warrant must fail.
III. Malicious Prosecution
Plaintiff asserts a claim for malicious prosecution. In Albright v. Oliver, 510 U.S. 266 (1994), a plurality of the Supreme Court held that the Fourth Amendment exclusively governs deprivations of pretrial liberty, and that Fourteenth Amendment substantive due-process standards have no applicability to a federal claim for malicious prosecution. As the Supreme Court observed, there is "an embarrassing diversity of judicial opinion" concerning the elements of a federal claim for malicious prosecution. Albright, 510 U.S. at 270 n. 4. The Court cited cases from a number of circuits holding that the elements of liability for the constitutional tort of malicious prosecution coincide with those of the common-law tort. See, e.g., Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Other circuits, however, required a showing of some injury or deprivation of a constitutional magnitude in addition to the traditional elements of common-law malicious prosecution. The Supreme Court included the Sixth Circuit in the latter category, citing Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987). In Coogan, the Court of Appeals held that in addition to the elements of malicious prosecution under state law, a plaintiff must show an egregious misuse of the legal proceeding resulting in a constitutional deprivation. 820 F.2d at 175.
The elements of a constitutional claim for malicious prosecution in the Sixth Circuit are not crystal clear in the wake of Albright. At a bare minimum, however, a plaintiff must satisfy all the elements of a state common-law malicious prosecution claim. As recognized by the Sixth Circuit, the elements of a claim for malicious prosecution under Michigan law are "(1) a criminal prosecution initiated against plaintiff by defendant, terminating in plaintiff's favor; (2) absence of probable cause for the criminal proceeding; and (3) malice or a primary purpose in bringing the action other than bringing the offender to justice." Coogan, 820 F.2d at 172 (quoting Rivers v. Ex-Cello Corp., 300 N.W.2d 420, 424 (Mich. 1980)).
Consequently, a plaintiff asserting a malicious prosecution claim under section 1983 must show that the prosecution was not supported by probable cause, in addition to other elements. Plaintiff has utterly failed in his burden of raising a triable issue of fact on this essential element. Although plaintiff has made several submissions to the court, none of them remotely establishes the lack of probable cause. It is not enough that the prosecution ended with an acquittal. If this were so, every acquitted defendant would have a constitutional claim against prosecuting officers. Coogan, 820 F.2d at 174. Rather, plaintiff bears the burden of producing evidence sufficient to support a jury finding that the officers began and maintained the prosecution without probable cause and with malice. See Adams v. Metiva, 31 F.3d 375, 388 (6th Cir. 1994). In the absence of proof sufficient to carry the case to a jury, defendants are entitled to summary judgment on this claim.
IV. False Testimony
In his amended complaint, plaintiff brings a claim against defendant Penabaker, the chemical analyst employed by the Michigan State Police. The nature of plaintiff's claim against Penabaker is virtually inscrutable. Plaintiff alleges, verbatim: "Mr. Penabaker `testifying that it was crack cocaine' in plaintiff's trial was only reckless disregard of the truth, `because the plaintiff never had any drugs, nor did he sell any of the drugs.'" (Amended Complaint, p. 3, docket # 20). Despite the opacity of plaintiff's claim, it is clear that he attempts to hold Penabaker responsible for the contents of that defendant's testimony in court. It is well settled that witnesses are granted absolute immunity from suit for all testimony provided in judicial proceedings. See Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983); Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). Under this principle, Penabaker is insulated from liability for any testimony that he provided as a witness at trial, even if it was false.
Absolute testimonial immunity, however, does not "relate backwards" to protect a defendant for activities that he allegedly engaged in prior to taking the witness stand. Spurlock, 167 F.3d at 1001. Consequently, if Penabaker knowingly falsified chemical analysis or otherwise manufactured evidence against plaintiff, those acts could still give rise to section 1983 liability, as they would be non-testimonial. On this score, Penabaker has presented his affidavit, supported by laboratory test reports, demonstrating that the substance that he tested was indeed cocaine. ( See Attachments to docket # 43). When faced with this evidence, plaintiff had the burden of coming forward with evidence of his own, demonstrating that Penabaker committed a non-testimonial act falling outside the scope of immunity. Again, plaintiff failed in his burden of production. In the absence of evidence that Penabaker falsified evidence or otherwise deprived plaintiff of a constitutionally guaranteed right, plaintiff's claim against this defendant must fail. Penabaker is entitled to summary judgment.
V. Motion to Amend
Also pending before the court is plaintiff's motion to file a third amended complaint (docket # 46). The proposed amendment seeks to impose liability upon some of the present defendants, as well as three additional defendants, all arising from the revocation of plaintiff's parole by the State of Alabama. The proposed amendment asserts that certain officers of the State of Michigan honored a parole warrant issued by the State of Alabama, which was based upon the same drug transaction that was the subject of the Michigan criminal prosecution. Plaintiff asserts that even though he "proved his innocence" in the Michigan case, the proposed defendants honored the warrant and returned him to Alabama to face revocation proceedings. He further alleges that Michigan parole agents filed additional charges against him in Alabama and provided information to the Alabama authorities leading up to parole revocation.
By opinion and order entered August 9, 1999 (docket #'s 37, 38), the court denied plaintiff leave to file a second amended complaint, as futile. The second amended complaint also sought to add new claims related to the revocation of plaintiff's Alabama parole. The court pointed out that leave to amend must be denied as futile if the proposed amendment does not state a valid claim. (Op., 4). The court went on to hold that under the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), a claim arising from parole revocation does not accrue until the revocation has been reversed on direct or collateral review. Plaintiff essentially reasserts the same claims in his present proposed amendment. The answer is the same: plaintiff has no section 1983 claim based upon parole revocation until such time as the decision of the Alabama Parole Board is reversed on direct or collateral review. (Op., 5-6).
Moreover, even if plaintiff's claim has accrued, it is clear that his proposed amendment fails to state a claim upon which relief can be granted. Plaintiff proceeds upon the erroneous assumption that his acquittal in the Michigan criminal courts somehow precludes revocation of his parole in Alabama based upon the same underlying conduct. Under the law, however, criminal prosecutions and parole revocation proceedings are separate and independent. The mere fact that the Michigan prosecutor was not able to persuade a jury of plaintiff's guilt beyond a reasonable doubt does not preclude the Alabama authorities from meeting the much lower evidentiary standard on parole revocation proceedings. Consequently, neither the Double Jeopardy Clause nor principles of due process precluded the proposed defendants from honoring the Alabama parole detainer or from presenting facts to the Alabama Parole Board leading up to plaintiff's conviction in revocation proceedings. See United States v. Miller, 797 F.2d 336 (6th Cir. 1986); accord Stringer v. Williams, 161 F.3d 259 (5th Cir. 1998); United States v. Woods, 127 F.3d 990 (11th Cir. 1997); United States v. Soto-Olivas, 44 F.3d 788 (9th Cir. 1995). Consequently, the proposed third amended complaint falls to state a claim upon which relief can be granted, both because plaintiff's claim has not yet accrued and because it is based upon an inarguable legal proposition.
Conclusion
The court concludes that all defendants are entitled to summary judgment in their favor. The motions for summary judgment of the City of Lansing defendants (docket # 49) and defendant Penabaker (docket # 43) will therefore be granted. Plaintiff's motion for leave to file a third amended complaint (docket # 46) will be denied as futile.