Buchanan v. Metz
Buchanan v. Metz
Opinion of the Court
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION
This civil rights litigation arises out of Plaintiff John C. Buchanan, Jr.’s involvement in attempting to redevelop a manufacturing plant into a film studio and claim a credit under Michigan’s Film and Digital Media Tax Credit program. When the
Both Defendants have now moved for summary judgment, asserting that there was probable cause to bring the charges, and that they are entitled to either qualified, absolute, or governmental immunity. Having reviewed and considered the Defendants Motions and supporting briefs, Plaintiffs response briefs, and the entire record of this matter, the Court has determined that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the deci-sional process. Therefore, the Court will decide this matter “On the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). The Court’s Opinion and Order is set forth below.
II. PERTINENT FACTS
A. Michigan’s Film and Digital Media Tax Credit
This case arises out of the State of Michigan’s tax incentives for the film industry. In 2008, the State Legislature enacted the “Film and Digital Media Tax Credit,” which permits investors to claim a tax credit “for an investment in a qualified film and digital media infrastructure project ... equal to 25% of the taxpayer’s base investment.” M.C.L- § 208.1457(1-2) (effective April 8, 2008).
[T]he cost, including fabrication and installation, paid or accrued in the taxable year of tangible assets of a type that are, or under the internal revenue code will become, eligible for depreciation, amortization, or accelerated capital cost recovery for federal income tax purposes, provided that the assets are physically located in this state for use in a business activity in this state and are not mobile tangible assets expended by a person in the development of a qualified film and digital media infrastructure project. Base investment, does not include a direct production expenditure or qualified personnel expenditure eligible*926 for a credit under [a different provision of Michigan’s film incentive, § 208.1455].
§ 208.1457(ll)(a).
B. The Development of the Lear Plant into a Film Production Facility
1. Alpinist and West Michigan Films Agree To Redevelop the Lear Plant
In 2006, Plaintiff had a discussion with his father, Jack Buchanan, Sr., in which he convinced Buchanan Sr. to enter into a business deal in which the two would purchase a former manufacturing plant just outside of Grand Rapids commonly known as the “Lear Plant” or “Hangar 42.” Motley Interview with Jack Buchanan Sr., Dkt. # 67-9, at 1. To facilitate the transaction, the two formed Alpinist Endeavors, LLC (“Alpinist”) a limited liability company jointly co-owned by the two. Id. They purchased the property for $4.2 million. Id. Plaintiff and his father had originally planned to sell the building, and according to Buchanan Sr., they had several interested purchasers ready to buy the property for $7 million, but Plaintiff believed they could make more money, leading to tension between Plaintiff and his father. Eventually, Plaintiff, without the input of his father, sought to find an investor to convert units 4 and 5 of the Lear Plant (the “Property”) into a permanent film studio, which could enable Plaintiff to take advantage of the Film and Digital Media Tax Credit. See id. at 1-2; see also Pl.’s Compl, Dkt. # 49, at ¶¶ 15-21). In 2009, Plaintiff met with Joseph Peters, an unemployed individual who had previously interacted with Plaintiff, and the two came to an agreement that Peters would form and own a company called West Michigan Films, LLC (“WMF”), which would purchase the Property for $40 million. See Peters Dep., Dkt #69-6, at 9-15; PL’s Compl., Dkt. # 49, ¶ 21(a). This initial plan was formed unbeknownst to Buchanan Sr., who did not find out about WMF until November 2009.
2. The Tax Credit Application
Prior to Buchanan Sr.’s discovery of the plan, WMF filed an “Application and Agreement for Infrastructure Development Film and Digital Media Incentives” with the MFO on November 2, 2009. Application, Dkt. # 66-9. The application included a business plan, describing a “state of the art film production facility” with a floor area “in excess of 400,000 square feet” and projecting employment of up to 975 individuals. Id. at 2. The plan included a construction estimate of $23.72 million that would be necessary to convert the property to a “turnkey ready” film studio. Budget, Dkt. # 66-9. Further, the application contained a purchase agreement, signed by Plaintiff and Joseph Peters, executed on October 28, 2009, that purported to demonstrate a transfer of units 4 and 5 of the Lear Plant from Alpinist to WMF. Purchase Agreement, Dkt. # 66-10. The agreement contained a condition precedent stating that “Buyer shall not be obligated to close the transaction ... unless the following conditions shall have each been met prior to the closing ... Buyer shall have obtained a commitment for a Michigan Film Infrastructure Tax Credit of no less than $10,000,000.” Id. at 5-6. In November 2009, the MEDC, the Michigan Film Office, and the Treasurer apparently provided a preliminary approval for WMF’s application, subject to further examination of the Property. PL’s Compl., ¶¶ 30, 34.
Following the initial application to the MFO, Buchanan Sr. learned of, and approved of, the plan to redevelop the plant. Buchanan Sr. stated that in November (after the initial application, including the purchase agreement, had been filed), his attorney informed him that his son and Peters had made an agreement to develop the Property into a film studio. May 19, 2011 email from Jack Buchanan to Donovan Motley, Dkt. # 67-9. At the time, Buchanan Sr. had been working with potential buyers of units 3 and 4 — the two units included in the MFO application. Id. Buchanan Sr. “still did not consider this deal with [his] son and Joe Peters viable until they sent [him] ... a copy of an executed tax credit approval form signed by Janet Lockwood.” Id. Buchanan Sr.’s attorney “verified with Joe Peters that the approval form was the final step before issuance of the tax credits and there were no contingencies remaining,” and Buchanan Sr. then “entered into an agreement with [Plaintiff] to sell [his] interest in the property ... for $3.2 million.” Id. Buchanan Sr. then “learned, for the first time ... that before the state actually issued the credits, certain improvements had to be made to the property in order to make it an official operating film studio.” Id.
Three other individuals associated with Plaintiff were involved in the application process. First, Plaintiff recruited Brice Bossardet, whom Plaintiff knew from various construction and development projects. Bossardet Aff., Dkt. # 67-12, ¶ 2. Bossar-det assisted in creating the business plan that was attached to the November 2, 2009 application. Id. ¶¶ 2-4. Bossardet - had anticipated that investors would be brought in to secure funding for the necessary improvements to the property, but over time, he came to the conclusion that Peters and Plaintiff “did not intend to make the $20 million of enhancements that we had discussed as necessary to convert the Property into a state-of-the-art turnkey film studio.” Id. ¶ 5. Eventually, Bossardet became disillusioned with the plan, based on, as he characterized it, Plaintiffs “effort to draft/create statements for others to them make/present” and because of Plaintiffs “loose or cavalier approach” to the tax credit procedure.” Id. ¶¶ 7-8. After a dispute with Plaintiff over a separate construction project, the two had a falling out and Bossardet ceased working on the Lear Plant project. Id. ¶¶ 9-11.
Second, Plaintiff recruited Noah Seiful-lah, who was a legislative aid to then-House Representative Robert Dean. According to Bossardet, Seifullah was to be a part owner of the studio and would be paid a salary. Bossardet claims that when he objected to Seifullah being paid a salary for his assistance, Plaintiff stated that he would pay Seifullah himself. Id. ¶ 6. As Bossardet put it, Seifullah’s role appeared to be that of an outside official lobbying on behalf of a project that would benefit Rep. Dean’s constituency. Id.
Third, Plaintiff sought the assistance of Dennis Weiss, a CPA who had previously worked with Plaintiff through Alpinist. Weiss assisted Plaintiff and his group with various aspects of the project, including an audit of the value of the property. As Weiss testified in his deposition in this matter, Plaintiff attempted to have several appraisals of the Property done,
4. The Redevelopment Plan Falls Apart
Communications between the MFO and MEDC continued into early 2010. On February 2, 2010, Plaintiff and his father entered into a “Redemption Agreement,” by which Buchanan Sr. agreed to sell the Property to Plaintiff for $3.2 million and gave Plaintiff permission to sell the property to WMF.
On March 2, 2010, Peters submitted an Investment Expenditure Certificate (IEC) form to Lockwood. That form represented that the project was “complete,” that $40 million had been expended, that 500-700 jobs had been “created,” the project had been “audited,” and that the property had been “purchased” by WMF. IEC From, Dkt. # 66-11. None of these statements were true at the time, as Plaintiff still lacked the ability to sell the Property without final approval from his father. Peters Dep., at 162-65, Weiss Dep., at 101. Also attached to the IFC form was a letter from Weiss similarly stating, “I have reviewed and audited the project verifying completion and quantification of costs. The audit of the project consisted of physical review of the facilities, title work, and closing documentation.... The applicant purchased the facility as a ‘turnkey’ digital media and film studio for $40,000,000. The cost incurred by the applicant qualifies as infrastructure costs; applicant qualifies for $10,000,000 in Infrastructure Credits.” March 2, 2010 letter, Dkt. # 67-8.
On April 5, 2010, Plaintiff and Peters executed various agreements purportedly closing the sale of the Property from Al-pinist to WMF. Closing Documents, Dkt.
Though the dealings between Plaintiff, his father, Peters, Seifullah, and Weiss had finally reached a conclusion satisfactory to all, the application before the MFO was not so successful. On May 23, 2010, the MFO made the decision not to finalize the tax credit. Plaintiff asserts that the project’s downfall began when “politics intervened.” PL’s Compl. ¶ 37.
C. Plaintiffs Arrest and Prosecution
1. The Investigation
The Lear Plant application received significant media and public attention. PL’s Compl., ¶¶ 46, 47, 50, 61, 81-83. One individual with close ties to media in Grand
The investigation against Plaintiff continued following the charges against Peters. On October 27, 2010 Metz prepared an internal memorandum, called a “Request to Initiate Litigation,” which was circulated among various officers in the Office of Attorney General. October 27, 2010 Request to Initiate Litigation, Dkt. # 67-6. In that memorandum, Metz detailed much of the factual background described above, and sought charges of “one count of Attempted False Pretenses $20,000 or more, and one count of Conspiracy to do the same.” Id. at 3. At least two officials within the Office agreed that probable cause was present and signed off on the request, Thomas C. Cameron Dep., Dkt. # 69-1, at 9, 93, in addition to Division Chief for the Criminal Division David Tanay, who also supported filing the charges, id. at 25. But as the Office was undergoing a change in administrations, approval was delayed. Metz submitted a largely identical second request on January 19, 2011. January 19, 2011 Request to Initiate Litigation, Dkt. # 67-7. That request was approved by two more individuals, id. at 130-40, and on January 25, 2011, Motley appeared before a magistrate, presented a sworn affidavit with facts uncovered during the investigation, and requested a warrant for Plaintiffs arrest on similar charges. Donovan Motley Aff., Dkt. # 67-10. The magistrate granted this request. PL’s Compl., ¶ 105.
1. The Affidavit
Pertinent to these Motions, Motley’s affidavit cited three main evidentiary bases that Motley thought gave rise to probable cause for a charge of false pretenses under Michigan law. First, the affidavit stated that Peters’s application to the MFO was filed “prior to any evidence of an ownership interest belonging to” Peters, and falsely indicated, through letters from Weiss, that Peters had already purchased the property, as discussed above. Donovan Motley January 25, 2011 Aff., Dkt. # 67-10, ¶¶ 1, 3, 7, 9.
Second, the affidavit stated that “[Plaintiff] arranged for an appraisal of [the Property] which came in at a value of $45 million dollars (as was suggested by [Plaintiff] ).” Id. ¶ 4. This statement was based primarily on an interview that Motley had with Doug Adams, who appraised the property. As Motley recalls that visit in his affidavit in the instant case,
One of the witnesses with whom I met, and from whom I obtained information, was Doug Adams, an appraiser. I met Mr. Adams several times at his office, obtained documents from him, and at*932 tended his investigative subpoena deposition. During one of my visits with Mr. Adams at his office, Mr. Adams mentioned to me that he had discussed with Mr. Buchanan Jr. a $40 million land contract that Mr. Adams relied upon in part for his 2010 opinion of value. At that meeting, Mr. Adams told me that Mr. Buchanan Jr. told him that the 2010 appraisal should be for no less than $4.0 million.
Donovan Motley Jan. 21, 2015 Aff., ¶ 10 (emphasis added). When deposed for this case, Adams stated that he didn’t think Motley had ever asked him a question regarding Plaintiffs influence over the appraisal. Doug Adams Dep., Dkt. # 69, at 80-81. However, Adams testified that he could not recall the conversation well enough to know whether Motley was lying in his affidavit. Id. Adams also testified in his deposition that Plaintiff had told him about the $40 million land contract with WMF and that the amount did have an effect on his assumption about sufficient demand for the Property. Id. at 79. Adams had previously appraised all units of the Lear Plant (not just units 4 and 5, which were involved in the film studio project) at just over $8 million. Id. at 82. This appraisal involved an extra 40 percent of the building that was not appraised in 2010 when Plaintiff hired Adams to appraise only units 4 and 5. Id. at 33. The only apparent improvements to the Property between those two assessments were some system upgrades that Alpinist had made. May 4, 2010 email from Plaintiff to Joeseph Peters and Noah Seifullah, Dkt. # 68-1. Tanay, who conducted the investigative deposition of Adams, stated that he “left the investigative ... interview of Mr. Adams with the unmistakable impression that [Adams] got the message [of Plaintiffs desired appraisal amount] and was playing ball.” David Tanay Dep., Dkt. # 69-8, at 44-45.
As explained in his briefing, Motley also relied on a number of other indicators that the appraisal value was bogus, such as Plaintiffs discussions with Weiss as detailed above regarding the audit of the property and Plaintiffs refusal to provide documentation of improvements made to the Property. He also relied on the opinion of Jay Riggs, another appraiser who toured the site in 2010. Riggs testified at his deposition that when he toured it, it was not in the condition of a film studio, and that a fair value for units 4 and 5 would be in the $8-12 million price range. Jay Riggs Dep., Dkt. # 69-7, at 46-48.
Third, the affidavit stated that Plaintiff “signed a Memorandum of Land Contract as seller indicating that he had sold the property to Joseph Peters. He did this knowing he did not have the authority to sell the property. [Plaintiff] did not have the authority to sell or transfer the property without the consent of [his father].” Donovan Motley January 25, 2011 Aff., ¶ 8. Motley relied on the above description of Plaintiffs and his father’s respective authority over the Property in making this statement.
After Plaintiffs booking and subsequent release on bond, the state district court held preliminary examinations in May, July, and September 2011, and eventually dismissed the charges against Plaintiff and Peters for lack of probable cause, stating that “looking at the entire context of the interaction between the defendants, their representatives, the State ... [and] the surrounding circumstances, I simply am not convinced that there was ever an intentional misrepresentation made by either [Peters or Buchanan].” Probable Cause hearing transcript, Dkt. # 84-15, at 31.
D. Plaintiffs Claims
On December 17, 2012, Plaintiff filed a civil suit in this Court, asserting claims of
1. The Problems with Motley’s Affidavit
Plaintiff claims that Motley presented untrue statements to the magistrate, which were “material to the issuance of the arrest warrant.” Pl.’s Compl., ¶ 114. As pertinent here, Plaintiff notes that the affidavit provided that “Plaintiff arranged for an appraisal in which he suggested and insisted that the appraiser yalue the facility in excess of $40 million[ ] and that the appraisal relied in part upon the $40 million sales price as part of the rationale for the final opinion of value.” Id. ¶ 107. In asserting that this statement was false at the time Motley provided the affidavit, Plaintiff relies on several facts. First, he notes that at his deposition, Adams did not recall being pressured by Plaintiff regarding his appraisal price. Further, he asserts facts implying that Motley’s suspicions about the Property not being worth $40 million were off base. He notes that Buchanan Sr. stated that while the property was not worth more than $10 million as an industrial property, it could be worth $50-60 million as a film studio, and Motley knew this based on his interview with Buchanan Sr. Motley Interview with Jack Buchanan Sr., Dkt. # 67-9, at 2. He also points to a Progressive Insurance appraisal that Motley possessed during the investigation that valued the building at approximately the same amount Adams’s appraisal did, stating that the cost to replace the building entirely would have been around $40 million. Donovan Motley Dep., Dkt. # 83-13, at 76-78.
Second, Plaintiff claims that the affidavit “falsely suggested that Mr. Buchanan had a CPA falsify the transaction by stating that the property had been sold.” Id. ¶ 96. Similarly, the affidavit claimed “that there was no intent to sell because [Plaintiff] did not have the ability to transfer title.” Id. ¶ 111. Plaintiff claims that Metz and Motley “knew that this statement was false and misleading because they had in their possession at the time the agreements and e-mails among Mr. Buchanan, his father, and Alpinist’s attorney.” Id. ¶ 112. Plaintiff supports these statements with various communications during the application process, focusing on the fact that after the initial application filed by Peters with the MFO, Buchanan knew about the application and had formed various agreements with Plaintiff to sell his interest in the Property if the tax credits were acquired. Plaintiff focuses especially on the Redemption Agreement, discussed above, which Motley knew about and agreed gave Plaintiff the authority to sell the Property to WMF after its effective date of February 2, 2010. Donovan Motley Dep., at 102. Plaintiff also notes that Weiss stated in his deposition that it was Peters, not Plaintiff, who drafted the letter stating that the property had been sold, and Motley was present during this statement. Id. at 45-46; Dennis K. Weiss Dep., Dkt. # 82-3, at 11-12.
Regarding the allegations that Plaintiff and Peters had falsely indicated that the Property had already been purchased by WMF, Plaintiff points to various communications between Lockwood and Peters, which Motley possessed during the investigation, including from Peters to Lockwood on February 1, 2010, and March 4, 2010, stating that the closing had not yet occurred and the property was not yet sold.
2. Metz’s Involvement
In his complaint, Plaintiff also made a number of separate allegations against Defendant Metz, asserting that Metz was involved in the investigative process by gathering documents and recording statements of individuals. PL’s Compl, ¶¶ 95-96. The record indeed indicates that Metz was involved in various aspects of the investigation, and Metz does not challenge this on Summary Judgment. Further, Plaintiff provides evidence, and Metz does not dispute, that Metz had access to much, if not all, of the factual background of the ease, leading up to Metz’s first Request to Initiate Litigation.
Plaintiffs Complaint also alleges that “defendant Metz also may have given advice to the defendant Motley concerning how the investigation was to be pursued and further gave advice to Motley and others as to the propriety of the arrest of plaintiff, or ordered the arrest in the absence of probable cause.” Id. ¶ 97. The Complaint further alleges that “Defendant Metz may also have conspired with Defendant Motley to provide false information to the Court at that (sic) time of the issuance of the warrant for plaintiffs arrest.” Id. ¶ 102. There does not, however, appear to be any evidence in the record that Metz was so involved in either the decision to order the arrest of the Plaintiff or any alleged decision to provide false information when seeking issuance of an arrest warrant.
E. Procedural History
This litigation has had a protracted history, with a number of procedural and discovery motions. Pertinent to these summary judgment motions is Defendant Metz’s Motion to Dismiss, which this Court granted on March 3, 2014. Dkt. # 36. In that Motion, Metz asserted that he was entitled to absolute prosecutorial immunity with regard to his role in the case. See generally Metz Mot. to Dismiss, Dkt. # 23. The Court agreed in part, holding that Metz was entitled to absolute immunity with his regard to prosecutorial functions, including his rolé in initiating charges against Plaintiff. Dkt. # 36, at 26-27. The Court also held, however, that any actions taken by Metz that involved investigation into Plaintiffs alleged misconduct, including the giving of advice to Motley and collection of evidence, were not covered by absolute immunity. Id. at 23-25. Ultimately, however, the Court found that Plaintiff failed to allege any federal claims that were not covered by prosecutorial immunity, because any investigative role taken by Metz only harmed Plaintiff “as a result of his prosecution.” Id. at 38-39. Accordingly, the Court dismissed all federal claims against Metz. Id. at 39.
Plaintiff, however, then filed a Motion for Reconsideration, as well as an amended complaint. Dkt. #48. In his amended complaint, Plaintiff asserted that in addition to harming him as a result of his prosecution, the investigation itself, prior to any formal charges being filed, harmed his business interests. Opinion and Order Regarding Plaintiffs Mot. for Reconsideration, Dkt. # 48, at 8-10. The Court held that while Plaintiff had still failed to make out a federal substantive due process claim against Metz for any participation in a “sham investigation,” id. at 13-20, the new allegation of injury allowed him to make out a claim of false arrest against Metz based on the allegations that Metz “falsely advised Motley that probable cause existed to arrest Plaintiff, or ordered his arrest in the absence of probable cause” and “[gave] advice to defendant Motley concerning how the investigation was to be pursued.” Id. at 21-22.
Both Defendants have now moved for summary judgment, asserting that they are entitled to qualified immunity, absolute immunity (in the case of Metz), and governmental immunity (with regard to the state claims). Dkt. # # 66, 71. Metz has also moved for partial summary judgment on the issue of damages, asserting that Plaintiffs damages claims — which include the benefit of the tax credit that Plaintiff asserts he would have received if not for the investigation against him — “go beyond fantasy or good faith advocacy.” Dkt. # 72, at 2. The issues have been fully briefed, and the Court may now properly address the Motions. Because many of the counts overlap substantially with regard to each Defendant, the Court addresses the claims against Defendant Motley first, followed by the claims against Defendant Metz.
III. DISCUSSION
A. Standard of Review
Through their present motions, both Defendants seek summary judgment in their favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Under that Rule, summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In addition, where a moving party seeks an award of summary judgment in its favor on a claim or issue as to which it bears the burden of proof at trial, this party’s “showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (emphasis and citation omitted).
In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmov-ing party may not rely on mere allegations or denials, but must “cit[e] to particular parts of materials in the record” as establishing that one or more material facts are “genuinely disputed.” Fed.R.Civ.P. 56(c)(1). But, “the mere existence of a scintilla of evidence that supports the non-moving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted).
B. Analysis
1. Claims Against Defendant Motley a. Fourth Amendment False Arrest and Malicious Prosecution Claims (Counts I and II)
First, Plaintiff alleges that Defendant Motley is liable for both false arrest and
The charges at issue here were based on attempted false pretenses under M.C.L. § 750.218(5). As defined in that statute, the elements for the crime are (1) “attempting,” (2) “with the intent to defraud or cheat” and (3) mak[ing] or us[ing] a false pretense to” obtain money or an item of value. M.C.L. § 750.218. In his Motion for Summary Judgment, Motley asserts that, regarding the federal claims, probable cause was present to make a charge of attempted false pretenses and conspiracy to the same, and that he is entitled to qualified immunity. The standards under qualified immunity in this arena are well-defined:
Qualified immunity shields government officials acting within the scope of their official duties from civil liability insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. The purpose of the qualified immunity defense is to protect public officials from undue interference with their duties and from potentially disabling threats of liability.
Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003) (internal quotation marks omitted). The bar for the plaintiff is not an easy one to pass: “[t]he qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). As the Supreme Court has repeatedly articulated, qualified immunity is assessed using a two-step process:
First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.
Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). After Pearson, judges are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236, 129 S.Ct. 808.
Though the legal standards for false arrest and malicious prosecution under the Fourth Amendment differ slightly, both turn on the question of whether the determination of probable cause was reasonable here. “A false arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005). “An arrest pursuant to a facially valid warrant is normally a complete defense to a federal constitutional claim for false arrest.” Id. However, a Plaintiff may still recover in such circumstances where she is able to show “by a preponderance of the evidence: (1) that the police officer knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to
Malicious prosecution is “a separate constitutionally cognizable claim ... under the Fourth Amendment,” which “encompasses wrongful investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006) (internal quotation marks omitted). The tort “remedies detention accompanied not by absence of legal process, but by wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (internal quotation marks omitted). As with a Fourth Amendment false arrest claim, a Fourth Amendment malicious prosecution claim often turns on whether it was reasonable for an officer to believe that probable cause was present:
To succeed on a malicious-prosecution claim under § 1983 when the claim is premised on a violation of the Fourth Amendment, a plaintiff must prove the following: First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute. Second, because a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution. Third, the plaintiff must show that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment jurisprudence, apart from the initial seizure. Fourth, the criminal proceeding must have been resolved in the plaintiffs favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (emphasis added).
As applicable to both false arrest and malicious prosecution under the Fourth Amendment, “[pjrobable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993) (en banc) (internal quotation omitted). A determination of probable cause in qualified immunity analysis must be looked at by examining the totality of the circumstances. When determining whether an officer had probable cause, a court must examine “whether it was ‘clearly established that the circumstances with which [the officers were] confronted did not constitute probable cause’ for purposes of the Fourth Amendment.” Legenzoff v. Steckel, 564 Fed.Appx. 136, 141 (6th Cir. 2014) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Especially in the qualified immunity context, this is a fact specific analysis that requires examination of past cases to determine whether an officer should have known that the circumstances presented would or would not give rise to probable cause. E.g, Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Legenzoff v. Steckel, 564 Fed.Appx. at 141 (finding, in a case involving a probable cause determination base on a photo array, that “we are assessing whether it was clearly established that a reasonable officer would not find probable cause where several eyewitness identified a defendant using a possibly suggestive photo array”)
Examining the totality of the evidence in this factually complex case, the Court cannot say that a reasonable juror
It is, of course, true that Motley did not provide to the magistrate all of the evidence 'that could lead one to believe that— despite the numerous misrepresentations that Plaintiff, Peters, and their associates made to the MFO — Lockwood and the MFO knew the real story that Plaintiff had no authority to sell the property until the February agreement with his father and that Alpinist retained possession of the property all along. But even if all of that information had been made clear in the affidavit, the Court cannot say that this would have negated any reasonable finding of probable cause. At bottom, the many indications of deception on the part of Plaintiff, Peters, and their associates provided substantial reason for Motley to be leery of Plaintiffs representations.
The same is true as to Plaintiffs argument that Motley’s statements in the affidavit that the $40 million appraisal value was a sham did not provide the full picture. While the evidence that Plaintiff points to may sow reasonable doubt as to whether the appraisal was fraudulent, reasonable doubt is not the standard that an office must abide by when making a reasonable determination of probable cause— especially in the context of a qualified immunity analysis of whether that defense shields the officer. Significant evidence cited by Defendants provides good reason to be skeptical about the legitimacy of the value of the Property. The Court finds no reason to infer that Motley was malicious in presenting the evidence, and even accounting for all of the evidence provided by Plaintiff, the Court again cannot say that it was clearly established that no reasonable officer would have thought probable cause was present.
Importantly, this was an extraordinarily complex investigation, resulting in thou
In sum, although this case presents circumstances in which probable cause was perhaps debatable, particularly since Motley clearly did not provide all of the evidence that he could have — and perhaps should have — in his affidavit to the magistrate, even by viewing the evidence in the light more favorable to Plaintiff, the Court cannot say that a reasonable juror could find that no reasonable officer would have thought probable cause was present, that such a determination was clearly established at the time the warrant was sought, or that Motley maliciously and recklessly falsified information or intentionally or recklessly misled the magistrate. Qualified immunity requires that police investigations be reasonable, not perfect. While Officer Motley’s decision to proceed may have been open to question, it was not unlawful.
b. State Law False Arrest and Malicious Prosecution Claims (Counts IV and Y)
Plaintiff also alleges that Defendant Motley is liable for both false arrest and malicious prosecution under state law, based on the same theory as his Fourth Amendment complaints.
In Odom v. Wayne County, 482 Mich. 459, 760 N.W.2d 217, 228 (2008), the Michigan Supreme Court stated that the proper method for determining whether governmental immunity applies to intentional torts, such as assault and battery, is to apply the test set forth in Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641, 647 (1984). Under the Ross test, an employee enjoys a right to immunity if (1) the employee undertook the challenged acts during the course of his employment and was acting, or reasonably believed that he was acting, within the scope of his authority; (2) the employee undertook the challenged acts in good faith or without malice; and (3) the acts were discretionary, rather than ministerial, in nature. Defendants bear the burden of establishing their entitlement to immunity from plaintiffs state-law claims.
Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011) (citations omitted). Importantly, regarding the good-faith element of governmental immunity, “[ujnlike qualified immunity under federal law, which uses an objective standard, ‘[t]he good-faith element of the Ross test is subjective in nature. It protects a defendant’s honest belief and good-faith conduct with the cloak of immunity while exposing to liability a defendant who acts with malicious intent.’ ” Id. (quoting Odom, 760 N.W.2d at 229) (second alteration in -original). Still, as Plaintiff notes, the question of good faith under governmental immunity often “overlaps considerably, if not entirely, with [the qualified immunity] analysis of whether [an] officer’s actions were objectively reasonable under the circumstances.” Malory v. Whiting, 489 Fed.Appx. 78, 86 (6th Cir. 2012).
Plaintiff appears to concede that Motley was acting in the course of his employment as an investigator during all of the events alleged here, and likewise makes no argument that any of Motley’s actions were ministerial in nature.
As with Defendant Motley, Plaintiff brings a claim of false arrest against Defendant Metz. The Court has addressed this claim in some detail in response to Metz’s earlier Motion to Dismiss (Dkt.# 23) and Plaintiffs Motion for Reconsideration and Motion for Leave to File a Second Amended Complaint (Dkt.# 38). As with those Motions, Metz asserts that he is entitled to absolute immunity from Plaintiffs Fourth Amendment claim, as, he argues, Plaintiff has not brought forth any evidence adducing Metz’s wrongful conduct in the investigation outside of his prosecutorial role.
This Court previously outlined the standard for absolute immunity in detail in its Opinion and Order granting Metz’s Motion to Dismiss:
“State prosecutors are absolutely immune from civil liability when acting within the scope of their prosecutorial duties.” Howell v. Sanders, 668 F.3d 344, 349 (6th Cir. 2012) (citing Imbler v. Packtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Prosecutorial immunity flows from the common-law and “is based upon the same considerations that underlie the common-law immunities of judges and gran[d] jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler, 424 U.S. at 422-23, 96 S.Ct. 984. “Although absolute immunity ‘leave[s] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,’ ‘the broader public interest’ would be disserved if defendants could retaliate against prosecutors who were doing their duties.” Adams v. Hanson, 656 F.3d 397, 401-02 (6th Cir. 2011) (alteration in original) (citing Imbler).
The key to determining whether a prosecutor is entitled to absolute immunity requires analyzing whether the prosecutor’s alleged activities “were intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. If so, then a prosecutor is absolutely immune from liability, even for egregious conduct such as “the knowing use of false testimony and the suppression of material evidence at [a] criminal trial.” Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2003) (citing Imbler). There are limits to this broad rule. “[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Instead, courts are to apply a “ ‘functional approach,’ which looks at ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269, 113 S.Ct. 2606 (internal citation omitted). “[T]he critical inquiry is how closely related is the prosecutor’s challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process.” Spurlock, 330 F.3d at 798. (internal quotation marks and citation omitted).
Opinion and Order Granting Defendant Metz’s Motion to Dismiss, Dkt. # 36, at 15-17. Based on this governing law, the Court found that Metz was not entitled to
Although a close call in this postTwombly legal era,
Plaintiff describes in painstaking detail Metz’s role in the investigation, as noted above in the factual background. See Pl.’s Resp. to Metz’s Mot. for Summ. J., Dkt. # 80, at 1-7. And indeed, it is clear that Metz took some part in the investigation of this matter, and he is not entitled to absolute immunity for any unlawful conduct he undertook during that investigation. But critically, Plaintiff does not point to any unlawful acts that Metz performed when taking an investigative rule. Instead, Plaintiff repeatedly argues that Metz “misunderstood the law and misreported the facts,” id. at 7, “ignored evidence,” id. at 10, “misrepresented” evidence, id. at 17, and “falsely accused” Plaintiff, id. at 20, all in Metz’s request to initiate litigation. What Plaintiff still fails to recognize, however, is that he cannot avoid the bar of absolute immunity with regard to actions taken in Plaintiffs prosecutorial role, as this Court has already explained in previous orders. Plaintiff makes no allegation of wrongdoing in the actions Metz took when investigating the case; instead he alleges that Metz misinterpreted that evidence when providing memoranda to his superiors requesting to initiate litigation. But Metz is clearly entitled to immunity with regard to any wrongful conduct associated with his request to initiate litigation, as such an act clearly falls within his pros-ecutorial role.
Other allegations in Plaintiffs Complaint that are independent of Metz’s Request to Initiate Litigation could make out a legitimate claim of false arrest if supported by evidence. As the Court previously noted, had Metz falsely advised to Motley that probable cause existed, ordered Plaintiffs arrest in the absence of probable cause, or conspired with Metz to falsify evidence or undertake a sham investigation, Plaintiff could make out a legitimate claim of false arrest against Metz. However, as Metz persuasively argues, there is simply no
b. State Law False Arrest Claim (Count IV)
Finally, Plaintiff alleges that Metz is liable for false arrest under state law, based on the same general theory under which he alleges Motley is liable under state law. The analysis here proceeds the same as it did there. Plaintiff does not contend that Metz was acting outside of the scope of his employment during the alleged acts, nor does he allege that any of Metz’s actions were ministerial in nature. As with the state-law charges against Motley, the only question is whether Metz was acting in good faith. And, as with Motley, the Court finds no evidence of malicious behavior or ill will on the part of Metz. His decision to seek charges against Plaintiff was clearly open to debate as to whether probable cause existed, but this did not rise to the level of malicious behavior that would not be entitled to governmental immunity. Accordingly, Metz is entitled to summary judgment on Plaintiffs state-law claim of false arrest against him.
IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Motley’s Motion for Summary Judgment (Dkt.# 66) is GRANTED.
IT IS FURTHER ORDERED that Defendant Metz’s Motion for Summary Judgment (Dkt.# 71) is GRANTED.
IT IS FURTHER ORDERED that Defendant Metz’s Motion for Partial Summary Judgment (Dkt.# 72) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
. After the events at issue in this lawsuit, Michigan significantly changed its film industry tax credit program.
. Plaintiff had, however, been in talks with Buchanan Sr.’s attorney since May 2009 regarding the possibility of Plaintiff buying out his father’s share in Alpinist. May 19, 2011 email, Dkt. # 67-9.
. Plaintiff does not appear to provide supporting documentation of this approval, but Defendant does not contest this claim in its briefing.
. As discussed below, Buchanan Sr. and Plaintiff eventually reached an agreement by which Buchanan Sr. would sell his interest in Alpinist to Plaintiff, had the tax credit application ever been fully approved.
. Bossardet also asserts that Plaintiff “threatened [him] and told [him] not to say anything about [Plaintiff] or his role in the tax credit effort, Joe Peters or their tax credit application.’’ Id. 1111. Bossardet also asserts that Plaintiff "threatened [him] at a meeting [they] had in approximately November, 2010” and that “even as late as last summer” when Bossardet "happened to run into [Plaintiff] at a mall in Grand Rapids,” Plaintiff "threatened [him] and [his] family.” Id. There is no independent evidence of any such threats, aside from a July 1, 2010 email that Plaintiff sent to Bossardet discussing Bossardet’s hesitancy with the project and stating that "[w]e remain deeply concerned but encourage you not to do anything further you’ll regret.” July 1, 2010 email, Dkt. # 67-12, Ex. H.
. The record includes a letter, signed by Rep. Dean, that was drafted by Seifullah and sent to the MFO pressuring the office to move forward on the WMF application. April 21, 2010 letter from Robert Dean to Janet Lockwood, Dkt. # 674.
. The Property was appraised by Doug Adams, as discussed in more detail below regarding Motley’s affidavit in support of probable cause.
. Weiss also later answered "no” to the question, "Did you actually do any analysis or calculation to be the person that came up with that $40 million dollar number for the initial application document?” Weiss Dep., at 319.
.Both parties agree to this interpretation of the Redemption Agreement.
. The Republican primary for governor in the summer of 2010 was occurring during this time. Plaintiff contends that then-gubernatorial candidate Representative Pete Hoeks-tra called for a criminal investigation into the matter as “a political ploy ... to make ... [gubernatorial competitor] Attorney General Cox ... either investigate or seem soft on fraud.” PL's Compl., ¶ 87).
. Other individuals shared this view. In an April 14, 2010 email from Buchanan Sr. to his attorney, Robert Nolan, Buchanan Sr. speculated that Plaintiff would not be able to secure the tax credit and stated, "Why are we just learning now about the muck raking and its effect on the State issuing the tax credits[?] ... The asking price for the property has been a matter of public record for years. The real problem is that they tried to pull a fast one on the state by telling them that they we paying 40M for the property to get the 10M in tax credits. The State apparently approved the credits based on that lie until they were tipped off by the Mac Center and investigated. They got caught. They also tried to fool them by making all those improvements, but that backfired when Lookwood (sic) wanted to see the invoices.” April 14, 2010 email from Jack Buchanan .Sr. to Robert Nolan, Dkt. #67-5.
. Plaintiff focuses heavily on the potential political motives of the investigation, but provides no ties between those potential motives and Motley's or Metz’s behavior. See PL's Resp. to Motley's Mot. For Summ. J., at 3-6.
. Plaintiff improperly numbered the Counts in his Complaint, neglecting to include a Count III. Because the parties briefed the claims using the incorrect numbers, the Court does as well, for ease.
. Plaintiff asserts that "The Attorney General needed evidence to show that Buchanan and Peters did not intend to deliver a film studio upon receipt of the tax credits.” PL's Resp. to Motley’s Mot. for Summ. J., Dkt. # 82, at 14. So long as Plaintiff intended that the Property would eventually be used for the purpose envisioned by the Film and Digital Media Tax Credit statute, Plaintiff argues, it does not matter if he made false representations with the intent to mislead the MFO along the way. In support of this, Plaintiff relies on dicta in People v. McCoy, 75 Mich.App. 164, 254 N.W.2d 829 (1977), stating that an intent to defraud is not necessarily "established as soon as any part of the transaction was revealed as being tainted by a falsehood.” Id. at 834. But even so, Plaintiff could have intended to defraud the MFO in violation of the statute even if he ultimately intended to deliver the film studio by securing the tax credit by unlawful means in derogation of the statute (i.e., by misrepresenting the purchase
. As with the Fourth Amendment claims, state law false arrest and malicious prosecu
. Indeed, neither party addresses either of these two points in their briefs.
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That watershed case significantly raised the bar for sufficient pleading by making clear that factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must "state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).
. In the alternative, the Court notes that even if Metz were not entitled to absolute immunity on these allegations, he certainly would be entitled to qualified immunity, for the reasons described above with regard to Defendant Motley.
Reference
- Full Case Name
- John C. BUCHANAN, Jr. v. James W. METZ II and Donovan Motley
- Cited By
- 1 case
- Status
- Published