ORDER

SANDRA S. BECKWITH, Senior District Judge.

This matter is before the Court on the motion for summary judgment filed by the Defendants, Detective Erik Nelson and Lt. Mark Rankin. Doc. No. 23. For the reasons that follow, Defendants' motion for summary judgment is well-taken and is GRANTED.

I. Background

Plaintiff Maurice Snow filed a complaint against City of Norwood Police Officers Erik Nelson and Mark Rankin pursuant to 42 U.S.C. § 1983 alleging that they violated his Fourth Amendment rights by initiating a criminal prosecution against him without probable cause. The material facts of this case are largely undisputed.

In 2013, a confidential informant approached a Norwood patrol officer and stated that he could provide information on persons selling narcotics in Norwood. The patrolman contacted Detective Nelson who, at the time, was on the Norwood Drug Task Force. Lt. Rankin was in charge of the task force. Also in the unit was Detective Josh Schlie of the Ohio Bureau of Criminal Investigation. Nelson contacted the informant. The informant indicated that he had previously worked on investigations for the Ohio Liquor Control agency and the Cincinnati Police Department. The informant gave Detective Howard Fox of the Cincinnati Police Department as a reference. Nelson contacted Detective Fox and Fox indicated that he had used the informant in the past and that he was reliable and was willing to testify in court.

As it relates to this case, the informant told Nelson that he could purchase crack cocaine from a man named "Emmitt." The informant stated that Emmitt lived at 5613 Rolston Avenue in Norwood and that he had previously lived there with Emmitt and his girlfriend for about two months. The task force used the informant to conduct four controlled buys of crack cocaine from Emmitt on July 15, 2013, July 16, 2013, July 30, 2013, and August 13, 2013. Although the complaint lists each of these controlled buys as a basis for the alleged Fourth Amendment violation, after briefing it appears that Plaintiff's claim is limited to the July 15 transaction. The other transactions, nevertheless, bear some relevance in this case.

In the July 15 controlled buy, as well as the others, the Defendants wired the informant with a hidden microphone. The informant made a recorded "preempt call" to Emmitt to arrange for the purchase of crack. The informant told Emmitt that he had $80 and was waiting by the blue apartment building near the Dale Road Drive Thru at the corner of Dale Road and Rolston Avenue. The Defendants videotaped the transaction from two different locations. The videos show the informant sitting on the front stoop of the apartment building. The informant is first approached by a thin, shirtless African-American male wearing white shorts. The informant and this man speak for a moment. Then another, heavier-set African-American male wearing a green shirt and a green plaid hat approaches the informant. The informant and this man then make the exchange of the money and the crack.

The Defendants debriefed the informant afterward. The informant identified the man in the green shirt as "the dope dealer." Based on the informant's reference to the man in the green shirt as "the dope dealer," Nelson assumed that this man was Emmitt. Nelson Dep. at 55-56. Nelson also wrote a "Trial Preparation Report" stating that Emmitt handed crack cocaine to the informant and then went into the Dale Road Drive Thru. The following day, Nelson obtained records indicating that the plaintiff, Maurice Snow, and Tanisha Sims paid the utility bills for 5613 Rolston Avenue. Nelson also obtained photographs of Plaintiff and Sims from the Ohio Bureau of Motor Vehicles and showed them to the informant. The informant immediately identified Plaintiff as "Emmitt" and Sims as "Emmitt's girlfriend." Nelson Aff. (Doc. No. 22) ¶¶ 21-22. The informant also told Nelson that these were the individuals he lived with at 5613 Rolston Avenue. Id. ¶ 23.

Nelson never compared the videotape to Plaintiff's BMV photograph to determine whether the man in the green shirt was in fact "Emmitt." Nelson Dep. at 56, 58. Nelson, however, testified that he did not use the video to identify Plaintiff as "Emmitt." Id. at 42. Plaintiff, in fact, does not appear in any of the videos of the controlled buys. Nelson Aff. ¶ 33. In his deposition, Rankin explained that Nelson apparently mistakenly assumed that Emmitt was the man in the green shirt, but it was not until the investigation progressed that they realized that Emmitt was using runners to deliver crack to the informant. Rankin Dep. (Doc. No. 24) at 13-14; see also Nelson Aff. ¶ 27.

As indicated, Defendants used the confidential informant to purchase crack from Emmitt on July 16, July 30, and August 13. In the July 16 and July 30 deals, Emmitt sent a younger African-American male riding a bicycle to deliver crack to the informant. In the August 13 transaction, two African-American males, one in a black T-shirt and white shorts, the other in a black T-shirt and black shorts, delivered crack to the informant. Apparently the man in the white shorts made the actual exchange. Although it does not appear on the tape, after the August 13 deal, the informant told Nelson that he saw the runner give the buy money to Emmitt at the entrance of the Dale Road Drive Thru and that Emmitt then walked back to 5613 Rolston Avenue. Nelson Aff. ¶¶ 35-38.

On August 15, 2013, Nelson sent a memorandum to the Hamilton County Prosecutor's Office to request the grand jury to convene to consider indicting Plaintiff on four counts of trafficking in drugs. Doc. No. 26, at 1, 7-8. Nelson was subpoened to appear before the grand jury on September 5, 2013. Id. at 6. Nelson could not recall whether he or another member of the task force testified to the grand jury, but presumably he did since he was the one subpoened. In any event, a transcript of the grand jury proceedings is not included in this record. The grand jury indicted Plaintiff the same day on four counts of aggravated trafficking in cocaine in violation of Ohio Rev. Code § 2925.03(A). A warrant for his arrest was then issued.

Deputies from the Hamilton County Sheriff's Department arrested Plaintiff on October 18, 2013 and took him to the Hamilton County Justice Center. Plaintiff was unable to make bail and remained in detention until December 9, 2013. On December 9, 2013, Plaintiff's criminal case was scheduled for a plea or trial setting. Plaintiff's defense attorney, Erik Laursen, the assistant prosecuting attorney, and Detective Nelson met in the courthouse and reviewed the July 15, 2013 video tape. When Mr. Laursen asked Nelson what was happening in the tape, Nelson pointed to the man in the green shirt and stated, "There is your guy." At that point, Detective Schlie arrived and Mr. Laursen told both of them that his client was not the man in the green shirt. Mr. Laursen and Detective Schlie then went to the holding area and Schlie confirmed that Plaintiff was not the man in the video. Laursen Aff. (Doc. No. 32-1) ¶¶ 5-9.

According to Lt. Rankin, Detective Schlie contacted him and stated that there was a discrepancy in the video and the trial preparation report and there was some question whether the man in the video was actually Plaintiff. Rankin testified that he told Schlie to err on the side of caution and dismiss the case and that they would look further to see if they made an error in the investigation. Rankin Dep. at 16-22. Plaintiff was released on a recognizance bond the same day and the prosecutor later dismissed the criminal case. Laursen Aff. ¶¶ 10-11. Rankin was not able to get in contact with the confidential informant to clear up the video and he moved on to other investigations. Rankin Dep. at 22. Despite the dismissal of the criminal case, both Nelson and Rankin remain convinced that there was sufficient evidence to prosecute Plaintiff for drug trafficking. Nelson Dep. at 67-68; Rankin Dep. at 20-21.

In January 2014, Plaintiff filed a complaint against Nelson and Rankin pursuant to 42 U.S.C. § 1983 alleging that they violated his Fourth Amendment rights by causing him to be arrested and detained for drug trafficking without probable cause. Following the close of discovery, Defendants filed a motion for summary judgment which is now ready for disposition.

II. Summary Judgment Standard of Review

The court "shall grant summary judgment if 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." Fed. R. Civ. P. 56(a). An assertion of a undisputed fact must be supported by citations to particular parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The party opposing a properly supported summary judgment motion "`may not rest upon the mere allegations or denials of his pleading, but. . . must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation omitted).

The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir. 1992). Rather, the burden is on the non-moving party to "present affirmative evidence to defeat a properly supported motion for summary judgment," Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movant's favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must assess "whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. "If the evidence is merely colorable, . . . or is not significantly probative, . . . the court may grant judgment." Anderson, 477 U.S. at 249-50 (citations omitted).

III. Analysis

Plaintiff alleges that Defendants violated his Fourth Amendment rights by causing him to be arrested and detained without probable cause. As clarified by his memorandum in opposition to Defendants' summary judgment motion, Plaintiff claims that Defendants were in possession of exculpatory evidence, i.e., the July 15, 2013 videotapes, that showed that he was not the person involved in the July 15 transaction. Plaintiff also contends that since he is not the person delivering crack in the video, but was nonetheless indicted, one or both of the Defendants must have testified falsely before the grand jury that he was the person in the video. Defendants, however, move for summary judgment on the grounds that the grand jury's indictment conclusively establishes that there was probable cause to arrest and detain Plaintiff. Plaintiff, however, argues that this defense fails because the indictment was based on false testimony.

It should be noted at this point, however, that Plaintiff apparently does not contest that Defendants had probable cause to arrest and detain him for the July 16, July 30, and August 13 transactions. Plaintiff certainly never mentions these deals in his brief. He, therefore, has apparently abandoned any constitutional claims related to his arrest and detention for these transactions.

In order to establish a claim under 42 U.S.C. § 1983, the plaintiff must prove that a person acting under color of state law deprived him of a right secured by the United States Constitution or the laws of the United States. Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001). Although the Sixth Circuit disfavors the name, Plaintiff's cause of action in this case sounds in malicious prosecution, that is, that the defendants violated his Fourth Amendment rights by causing him to be criminally prosecuted without probable cause. A malicious prosecution claim "encompasses wrongful investigation, prosecution, conviction, and incarceration." Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). The plaintiff must prove each of the following elements to establish a malicious prosecution claim: 1) that the defendant made, influenced, or participated in the decision to initiate a criminal prosecution against him; 2) that there was a lack of probable cause for the prosecution; 3) that as a consequence of the legal proceeding, he suffered a deprivation of liberty; and 4) that the criminal proceedings were resolved in his favor. Id. at 308-09.

Generally, the grand jury's indictment conclusively establishes that the defendant had probable cause to investigate, arrest and detain the plaintiff. Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014). The plaintiff, however, may overcome this presumption by showing that the defendant testified falsely before the grand jury or that he testified with reckless disregard as to the truth. Id. Additionally, in Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), the Sixth Circuit held that a police official could be held liable for malicious prosecution, despite the fact that the grand jury indicted the plaintiff, for intentionally withholding exculpatory information in order to continue the plaintiff's detention without probable cause. Id. at 751. Gregory is clear, however, that to establish a malicious prosecution claim for withholding exculpatory information, the plaintiff must demonstrate that probable cause for his continued detention would have dissolved had the exculpatory information been disclosed. Id. at 750.

In this case, the grand jury's indictment presumptively establishes that the Defendants had probable cause to investigate Plaintiff and to have him arrested and detained. The Court finds that Plaintiff has not created a issue of fact to overcome the presumption that Defendants had probable cause to have him arrested and detained.

First, Plaintiff has not shown that either Nelson or Rankin knowingly provided false testimony to the grand jury or that either one of them testified with reckless disregard for the truth.1 What Plaintiff has shown is that Nelson mistakenly believed that the man in the green shirt in the video was Emmitt, and therefore, Plaintiff. Nelson, however, testified that he did not use the video to identify Plaintiff as Emmitt. Additionally, since the grand jury transcript is not included in the record, Plaintiff has not shown that Nelson or Rankin falsely or recklessly told the grand jury that the man in the green shirt was Emmitt. The fact of the matter is that without the grand jury transcript there is no proof at all as to what Nelson or Rankin told the grand jury. Consequently, there is no basis upon which a reasonable juror could conclude that either of the Defendants provided false testimony to the grand jury, or that either one of them testified with reckless regard for the truth. Cf. Young v. Owens, 577 Fed. Appx. 410, 416-17 (6th Cir. 2014)(affirming district court's grant of summary judgment on plaintiffs' malicious prosecution claim because, although plaintiffs argued that defendants provided false testimony to the grand jury, they did not support their contention with the grand jury transcript).

Plaintiff's claim presumes that the grand jury decided to indict him based solely on the videotapes and that no other evidence was presented to the grand jury to support the indictment. That assumption is incorrect, however, because, as just stated, there is nothing in the record to show what evidence was presented to the grand jury. Moreover, Plaintiff overlooks other relevant facts which support a finding of probable cause: 1) the confidential informant was known to be reliable; 2) the confidential informant knew Emmitt and his girlfriend from living with them; 3) the confidential informant correctly provided Emmitt's address; 4) records obtained by the Defendants showed that Plaintiff lived at the address provided by the confidential informant; 5) the confidential informant immediately identified Plaintiff as Emmitt from a photograph shown to him by Nelson; 6) the confidential informant arranged four different purchases of crack cocaine from Emmitt; 7) although Plaintiff is not in the July 15 video, the use of a runner to deliver crack to the confidential informant was consistent with Emmitt's practice as demonstrated in the July 16, July 30, and August 13 transactions; and 8) the confidential informant witnessed the runner give the buy money to Emmitt after the August 13 transaction. The totality of the circumstances — a reliable informant with firsthand knowledge of Emmitt and his activities, his positive identification of Plaintiff as Emmitt, and corroboration of his information by subsequent events — all reasonably support probable cause to believe that Plaintiff was involved in the July 15 transaction. Cf. United States v. Dyer, 580 F.3d 386, 390-92 (6th Cir. 2009) (holding that probable cause for search warrant was established where the informant was known to be reliable and the police were able to corroborate his information). A reasonable juror, therefore, could not conclude that Defendants procured an indictment of Plaintiff based on false testimony.

Second, assuming that the July 15 videos are exculpatory, the record does not support a finding that either of the Defendants intentionally suppressed the videos or that probable cause would have dissolved upon disclosure of the videos. As an initial matter, as demonstrated by Mr. Laursen's affidavit, Nelson clearly thought that the videos were inculpatory; therefore, it makes little sense that he would have intentionally withheld them from Plaintiff.

Additionally, the timeline shown by Mr. Laursen's affidavit does not support a conclusion that either of the Defendants suppressed the July 15 videos from Plaintiff. Plaintiff was arrested on October 18, 2013. Mr. Laursen served a discovery demand on November 12, 2013 and six days later, on November 18, 2013, the prosecutor responded and specifically indicated that he was in possession of still photos and audio and video tapes. Doc. No. 32-1, at 4-10. Mr. Laursen was able to view the videos about three weeks later, on December 9, 2013. It seems evident that the Defendants provided the video tapes to the prosecution no later than November 18, 2013. Mr. Laursen states that there was "a problem" getting the Defendants to bring the videos to court or to allow him to view the tapes in Norwood, but he does not indicate what "the problem" was. Laursen Aff. ¶ 4. A juror could only speculate that "the problem" was that the Defendants were being evasive about producing the videos. Speculation is insufficient to withstand a motion for summary judgment.

Finally, despite the fact that Lt. Rankin ordered the case against Plaintiff to be dismissed upon being informed that there was a discrepancy in the videos as to the identity of the man in the green shirt, a reasonable juror could not conclude that probable cause to detain Plaintiff dissolved upon disclosure of the tape. As just discussed, the totality of the circumstances demonstrated probable cause to believe that Plaintiff was involved in the July 15 transaction.

Conclusion

For the reasons stated, a reasonable juror could not find that the Defendants caused Plaintiff to be arrested and detained without probable cause, or that they intentionally withheld exculpatory information. Having concluded that Plaintiff has not demonstrated a constitutional violation, the Court does not reach the merits of Defendants' qualified immunity defense. Accordingly, Defendants' motion for summary judgment is well-taken and is GRANTED. The complaint is DISMISSED WITH PREJUDICE. THIS CASE IS CLOSED.

IT IS SO ORDERED