McKEAGUE, Circuit Judge.
Plaintiffs-appellants Lowestco Ballard and Geneva France were framed during Operation Turnaround, a corrupt investigation into the Mansfield, Ohio drug trade by the United States Drug Enforcement Agency (DEA) and the Richland County Sheriff's Office (RCSO). The federal government prosecuted Ballard and France for allegedly selling drugs to law-enforcement officials and confidential informant Jerrell Bray. After Operation Turnaround ended, however, Bray admitted that he used his friends to act as "stand-ins" for the drug buys and intentionally misidentified them to frame Ballard and France. Ballard and France then sued Bray, DEA Special Agent Lee Lucas, and the defendants-appellees, RCSO officers Charles Metcalf, Matthew Mayer, Larry Faith, and
The district court granted summary judgment to the defendants. Ballard and France appeal that decision, arguing that we should infer from the evidence that the RCSO officers knew Bray was using stand-ins to frame them and at times even assisted him in doing so. But Ballard and France have failed to produce evidence showing that the officers personally violated their constitutional rights. In addition, the officers relied on eyewitness identifications of Ballard and France by Special Agent Lucas and indictments from a federal grand jury for probable cause, and Ballard and France have failed to show a genuine issue of material fact as to whether the defendants should have doubted that there was probable cause. For the reasons set forth below, we
Lowestco Ballard and Geneva France were separately arrested and charged as part of "Operation Turnaround," an investigation into the Mansfield, Ohio drug trade launched by the Richland County Sheriff's Office and later joined by the DEA. This case one in a series of lawsuits brought by individuals who were targeted during Operation Turnaround. See Webb v. United States, 789 F.3d 647, 652 (6th Cir. 2015); Robertson v. Lucas, 753 F.3d 606, 610 (6th Cir. 2014).
RCSO launched Operation Turnaround after the death of Timothy Harris in December 2004, believing Harris's death to be drug related. As part of the investigation, RCSO recruited Jerrell Bray as a confidential informant to make controlled buys from suspected drug traffickers in Richland County.
In August 2005, the DEA joined Operation Turnaround and DEA Special Agents, including Special Agent Lee Lucas, registered Bray as a DEA informant. Bray had previously made several buys for RCSO, and he had also supplied Lucas with reliable information in a separate DEA drug investigation in Cleveland, Ohio. Controlled buys proceeded as follows:
Webb, 789 F.3d at 652 (quoting Mott, 524 Fed.Appx. at 181).
Bray worked with several RCSO officers, including Detective Charles Metcalf; his supervisor, Sergeant Matthew Mayer; and their supervisor, the head of the detective bureau, Captain Larry Faith. Faith was supervised by non-defendant Major Reeves, who was supervised by Sheriff Steve Sheldon. As a result of Bray's controlled buys, law enforcement arrested and
Controlled Buy. The controlled buy that led to the arrest and prosecution of Lowestco Ballard took place on September 9, 2005, at Eastgate Apartments. Ballard asserts that Bray purchased crack from Darren Transou (a stand-in), but intentionally misidentified him as Ballard.
According to DEA Special Agent Lucas's official report, Bray met with Lucas and Detective Metcalf and made a number of calls to Ballard to set up the deal. Bray's phone records show that he never called the number listed in Lucas's report. Bray instead called Transou, who needed directions to Eastgate Apartments and at one point referred to "West" (for "Lowestco Ballard") in the third person. Detective Metcalf monitored these calls. Sergeant Mayer accompanied Special Agent Lucas in a pick-up truck and provided video surveillance while Bray purchased drugs from Transou.
Transou drove a green Ford Bronco to the September 9 drug buy used to frame Ballard. This is relevant because two days before the buy, on September 7, a state trooper had stopped Transou while he was driving a green Bronco to Detroit to buy drugs. Bray and law enforcement set up this September 7 stop to target Noel Mott and Arrico Spires. Bray had told law enforcement he was following Mott and Spires in a separate vehicle, while Sergeant Mayer was following Bray. Yet when the state trooper stopped the Bronco, he found Transou and Crystal Dillard, rather than Mott and Spires, inside it. The trooper called Metcalf, who was at the police station monitoring the GPS, to tell him Transou was in the green Bronco. The trooper then let Transou go. Ballard points to the September 7 incident as evidence that the green Bronco was a tip-off to officers that Transou, not Ballard, was taking part in the September 9 controlled buy.
Ballard's Prosecution. Special Agent Lucas testified before a federal grand jury that Ballard sold drugs to Bray on September 9. Ballard was indicted on criminal drug charges and arrested pursuant to a warrant from a United States Magistrate Judge. At trial, Special Agent Lucas was shown Transou's picture but testified that it was Ballard — not Transou — who sold Bray drugs on September 9. The jury acquitted Ballard and he was released after spending almost a year in pretrial detention.
Controlled Buy. The controlled buy that led to Geneva France's arrest took place on October 25, 2005, and is also detailed in our opinion in Webb, 789 F.3d at 654-56. France was not the initial target of this buy, as Bray had told law-enforcement officers he could set up a buy with "Ronald Davis." "Ronald Davis" was an alias used by Herman Price, who had paid his brother-in-law, the actual Ronald Davis, to use Davis's name, birth certificate, and Social Security card. See Webb, 789 F.3d at 654-55.
Special Agent Lucas and Detective Metcalf recorded and monitored two telephone calls Bray made to Price to set up the controlled buy. At France's trial, Lucas testified that he "dialed the numbers." According to Lucas's DEA report, at 2:05 p.m. Bray made the first call and spoke to a woman known as "Lil S" to discuss purchasing crack cocaine. During the call, Bray and "Lil S" made plans to meet at 121 Glessner Avenue. In truth, Bray called his girlfriend's cell phone and spoke with his girlfriend, who said she would send "her girl." Lucas's report then noted that Bray made a second call to Price (posing
After these calls, Faith and Metcalf drove to Price's home at 121 Glessner Avenue. According to Lucas's report and an affidavit Faith would submit for a search warrant of Price's home, Metcalf and Faith observed Price leave his home and followed him to 187 South Adams Street. Faith would later admit that he and Metcalf never followed Price to South Adams Street. In the meantime, Lucas and Bray drove to 187 South Adams Street for Bray to meet Price. Inside the house, Bray asked to buy drugs from Price. Price responded "I definitely can get it" and told Bray that he would call him with a price for the drugs.
After returning to the vehicle, Bray told Lucas they needed to go back to Glessner Avenue to buy drugs from "Price's girl." Lucas agreed, even though the audio recording shows that Bray and Price never made any agreement for Bray to buy drugs from "Price's girl."
At approximately 2:20 p.m., Bray and Lucas picked up Karmiya "Shea Shea" Moxley, whom Bray would falsely identify as Geneva France. Moxley identified herself as "Lil S," the woman Bray had supposedly spoken to earlier to set up the buy. Bray told Moxley that Price had asked him to pay her for the drugs. Lucas, who bought the drugs from Moxley, claimed that they were "a little light," so he asked Bray to call Price and ask him to lower the sales price. Lucas testified at France's criminal trial that he heard Price on the other line, even though phone records show no calls from Bray's phone to Price's number during the buy. Bray later admitted he pretended to dial the phone and had a fake conversation with Price. Faith and Metcalf remained in the field providing surveillance during the buy. They would not have been able to hear whether Bray was actually on the phone with Price.
Prosecution. Metcalf first linked "Lil S" to a woman named Shakkia Gordon. He obtained a photo of Gordon, but Special Agent Lucas denied that Gordon was the woman who sold him drugs. Metcalf then linked "Lil S" to Geneva France after Bray told him that the suspect's first name was "Geneva." Law enforcement was unable to find a driver's license photo of France, but Sergeant Mayer located a sixth grade school photo of France and provided it to Metcalf. Lucas and Bray separately identified the woman in the photo as "Lil S." Mayer admitted, however, that no one put the photo in a photo array for proper identification, and the photo may have been captioned "Geneva France" when shown to Bray.
Special Agent Lucas testified before a federal grand jury that Geneva France sold him drugs in a controlled buy from Price. Webb, 789 F.3d at 656. France and Price were indicted and charged with distribution of 50 grams or more of crack cocaine distributed within 1,000 feet of school grounds. A magistrate judge then issued a warrant for France's arrest based on the indictment.
Lucas, Metcalf, and Bray testified against France at trial, and Lucas again identified France as the woman who sold him drugs during the controlled buy. Metcalf testified that he and Faith were about 150 yards away from the vehicle where the buy took place. He testified that he saw an African-American woman enter the vehicle, but that she was too far away to identify. The jury found France guilty on both counts, and she was sentenced to the mandatory minimum of ten years' imprisonment.
The issues with Operation Turnaround went well beyond Ballard's and France's investigations:
Webb, 789 F.3d at 652-53 (quoting Robertson, 753 F.3d at 612).
In 2007, Operation Turnaround fell apart. Bray, in prison for an unrelated homicide, disclosed that he had framed targets of Operation Turnaround by using stand-ins to stage drug transactions or by passing off his own drugs as having been purchased from targets under investigation. Robertson, 753 F.3d at 611. "Bray claimed that he initially ... told authorities that [DEA Special Agent] Lucas and [DEA Task Force Agent] Ansari were complicit in his actions, specifically those involving Geneva France and Joshawa Webb." Id. at 613. Based on the evidence, he did not implicate any of the RCSO officers.
Bray pleaded guilty to two counts of perjury and five counts of deprivation of civil rights. His plea agreement indicated he falsely identified "Lil S" as Geneva France, and that he committed perjury at France's trial. The government moved to vacate France's conviction and sentence and dismissed the indictment against her. She spent sixteen months in federal prison. Bray's plea agreement did not mention Ballard, who had already been acquitted.
In 2009, Metcalf pleaded guilty to falsifying evidence against Dwayne Nabors. Nabors was a plaintiff in this case, but the district court granted summary judgment on his claims to all defendants save Metcalf, and Metcalf and Nabors settled Nabors's remaining claims.
The federal government indicted Special Agent Lucas for obstruction of justice, making false statements, perjury, and deprivation
According to our decision in Webb, the Office of the Inspector General (OIG) of the United States Department of Justice completed an independent investigation on Operation Turnaround. 789 F.3d at 653. "Despite the [not guilty] verdict, a 2011 OIG investigation concluded that Lucas falsified reports and testimony to corroborate Bray's false identifications." Id. The OIG report is, however, conspicuously absent from our record in this case.
Ballard, France, and three other individuals targeted in Operation Turnaround filed suit against Bray, DEA Special Agent Lucas, Richland County, and other federal and state law-enforcement officers under 42 U.S.C. § 1983 for civil rights violations. They settled or dismissed their claims against most defendants, including Special Agent Lucas. Bray died in prison in September 2012. Webb, 789 F.3d at 653 n.1. Thus, at the summary judgment stage, the only remaining defendants were Richland County and RCSO officers Metcalf, Mayer, Faith, and Sheldon.
The plaintiffs asserted § 1983 claims for false arrest, malicious prosecution, fabrication of evidence, violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), municipal liability under Monell v. Department of Social Services of N.Y.C., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and conspiracy, as well as a separate conspiracy claim under 42 U.S.C. § 1985. On January 4, 2012, the district court granted summary judgment in full to Mayer, Faith, and Sheldon, and in part to Metcalf. Following additional discovery, Metcalf and Richland County moved for summary judgment. In opposing these summary judgment motions, the plaintiffs submitted an affidavit in August 2012 from Bray to support their allegations that RCSO officers knew Bray was framing the targets of Operation Turnaround. Bray died in prison the next month. Webb, 789 F.3d at 653 n.1. The district court disregarded Bray's affidavit under the "sham affidavit" doctrine and granted summary judgment in full to Metcalf and Richland County. France v. Lucas, No. 1:07CV3519, 2012 WL 5207555, at *1 (N.D. Ohio Oct. 22, 2012). Ballard and France appealed.
Ballard and France raise a host of issues on appeal. First, they contest the district court's decision to apply the "sham affidavit" doctrine to disregard Bray's affidavit. Second, they appeal the district court's decision to grant summary judgment on their § 1983 claims against Metcalf, Mayer, Faith, Sheldon, and Richland County for: (1) malicious prosecution; (2) fabrication of evidence; (3) violations of France's rights under Brady; and (4) municipal liability under Monell. Third, they appeal the district court's decision to deny their motions for additional discovery. Finally, they appeal the district court's decision to deny their motion to supplement the record with an expert witness's affidavit.
We begin with Bray's affidavit, which, if admissible, would create issues of fact for many of plaintiffs' claims. Bray's affidavit is devoted to asserting that Metcalf, Mayer, Faith, and Lucas were aware Bray was framing people and assisted him in fabricating evidence. It includes specific statements that Metcalf and Mayer knew Bray was framing Ballard and France. The district court declined to consider the affidavit by applying the "sham affidavit" doctrine. France, 2012 WL 5207555, at *3-7. We review that decision for an abuse of discretion. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 906 (6th Cir. 2006).
Under the sham affidavit doctrine, after a motion for summary judgment has been made, a party may not file an affidavit that contradicts his earlier sworn testimony. Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). If the affidavit directly contradicts prior sworn testimony, it should be stricken "unless the party opposing summary judgment provides a persuasive justification for the contradiction." Aerel, 448 F.3d at 908. If the affidavit does not directly contradict prior sworn testimony, it should be stricken if it is "an attempt to create a sham fact issue." Id. at 908-09 (citation omitted). The rationale behind the doctrine, which is applied in some form in nearly every circuit, is simple: "[i]f a party who has been examined at length [under oath] could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969); see Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 252 (3d Cir. 2007) (collecting cases).
Bray's affidavit marks the third different version of his story on Operation Turnaround. When Bray first confessed to framing individuals, he implicated Lucas and DEA Agent Ansari as participants in framing Operation Turnaround targets. There is no evidence that he implicated Metcalf, Mayer, or Faith in his initial story. Then, at Lucas's criminal trial, Bray told his second version of events and testified that no law-enforcement officers worked with him to fabricate evidence:
App'x at 1221, 1224-26, Bray Testimony at Lucas Trial, R. 120. Bray was a defendant in this lawsuit when plaintiffs filed his affidavit, and the affidavit directly contradicts his prior sworn testimony that no law-enforcement officials were involved in framing the targets of Operation Turnaround. On its face, then, the sham affidavit doctrine appears applicable.
The wrinkle here, however, is that we generally apply the sham affidavit doctrine
We have yet to confront this unique factual scenario: an affidavit from one defendant, which directly contradicts his prior sworn testimony, submitted by the plaintiffs to defeat summary judgment motions from other defendants. The plaintiffs are correct that Reid, which was the genesis of the sham affidavit doctrine in our circuit, involved a plaintiff filing an affidavit that directly contradicted her prior deposition testimony. 790 F.2d at 459-60. But they point to no case limiting the doctrine to Reid's circumstances.
Beyond our own precedent, the Third Circuit has applied the sham affidavit doctrine in circumstances that resemble this case. See Jiminez., 503 F.3d 247. In Jiminez, a man died of asphyxia outside a bar after two of the bar's employees forced him to the ground and held him down. Id. at 248-49. The man's estate sued the bar and also brought a Monell claim against the local police department, alleging the police had a policy of directing the bar's employees to detain persons they believed violated the law. Id. at 250. The bar owner testified at his deposition that he did not consult with the police department regarding the bar's detention policy and that no police official offered training or direction to the bar's employees. Id. at 250-51. He later submitted a contradictory affidavit stating that the police asked bar employees on several occasions to assist in apprehending individuals. Id. at 250.
The Third Circuit affirmed the district court's decision to strike the affidavit under the sham affidavit doctrine. Id. at 254-55. The district court noted "that [the bar owner]'s interests were directly adverse to those of the [police department] for purposes of the [police department]'s motion for summary judgment, as resolution in favor of the [police] would only expose the [bar] to greater potential liability." Id. at 255. It also observed that the bar owner "offered no explanation for the conflict" between his sworn deposition testimony and his affidavit. Id. The Third Circuit affirmed this reasoning, explaining that "[a] sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." Id. at 253.
Bray, just like the bar owner in Jiminez, signed a contradictory affidavit implicating his codefendants. Bray's affidavit, just like the bar owner's, was submitted for the sole purpose of defeating his codefendants' motions for summary judgment. And Bray's interests, while perhaps not directly adverse to his codefendants', were certainly not aligned with them.
We find the rationale underlying the sham affidavit doctrine and the reasoning in Jiminez to be persuasive. First, Bray's affidavit directly contradicts his sworn testimony at Lucas's trial in 2011. It is also inconsistent with his 2007 statements to authorities — so even when Bray was accusing law-enforcement officials of framing targets, he still did not implicate Metcalf, Mayer, or Faith. Second, while we need
Finally, the plaintiffs have utterly failed to provide any explanation for the conflict between Bray's affidavit and his previous testimony at Lucas's trial. The affidavit is designed to combat the district court's conclusion that the defendants did not personally violate Ballard's and France's constitutional rights.
At oral argument, the plaintiffs argued that we should admit the affidavit because Bray finally decided to "come clean." They also suggest in their briefs that we should consider the affidavit because it was "damning" to Bray's case. These arguments fail to account for the questionable circumstances surrounding the affidavit. Bray "came clean" when he admitted to authorities in 2007 that he framed Ballard, France, and other targets of Operation Turnaround. He admitted to framing them again in 2011 at Lucas's trial, where he also "came clean" by admitting he lied about the involvement of Special Agent Lucas and other law-enforcement officers. The only consistent part of Bray's ever-changing story is that he was framing people. As Bray already admitted this — twice — the affidavit is not damning to him in the least bit.
The sham affidavit doctrine "invariably reflect[s] the importance of distinguishing legitimate efforts to supplement the summary judgment record from attempts to create a sham issue of material fact." Id. at 908. We have a contradictory affidavit, recounting the affiant's third version of events, submitted not only years after the defendants moved for and the plaintiffs opposed summary judgment, but submitted months after the district court ruled on the summary judgment motions. In these circumstances, we hold that the district court did not abuse its discretion by disregarding Bray's affidavit.
We review the district court's decision to grant summary judgment de novo. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is proper when "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). We must view the evidence and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The inquiry is whether a reasonable jury could
To prevail on claims under 42 U.S.C. § 1983, a plaintiff must prove that he or she was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by a person acting under color of state law. Webb, 789 F.3d at 659. It is undisputed that the defendants acted under color of state law, so the issue is whether the defendants deprived the plaintiffs of their rights. See Robertson, 753 F.3d at 614.
Qualified immunity is an affirmative defense to § 1983 claims. Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). To determine whether an officer is entitled to qualified immunity, we apply a two-prong test: (1) whether "the facts alleged show the officer's conduct violated a constitutional right" and (2) whether that right was "clearly established." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We have discretion to address either prong first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Once defendants raise the defense of qualified immunity, "the burden is on the plaintiff to demonstrate that the officials are not entitled to qualified immunity." Binay, 601 F.3d at 647 (internal quotation marks omitted).
Ballard and France appeal the district court's decision to grant summary judgment to Metcalf, Mayer, Faith, and Sheldon on § 1983 claims for (1) malicious prosecution; (2) fabrication of evidence; (3) Brady violations as to France; and (4) Monell claims against Richland County. We address each in turn.
Before turning to the plaintiffs' specific claims, however, we address plaintiffs' claims against Sheriff Sheldon. "[T]o overcome a qualified immunity defense, an individual must show that his or her own rights were violated, and that the violation was committed personally by the defendant." Robertson, 753 F.3d at 615. There is no evidence in the record that Sheldon personally violated plaintiffs' rights. We therefore affirm summary judgment in his favor.
The Fourth Amendment guarantees freedom from malicious prosecution. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). To succeed on a malicious prosecution claim, a plaintiff must prove: (1) the defendant made, influenced, or participated in the decision to prosecute the plaintiff; (2) there was no probable cause for the prosecution; (3) as a consequence of the legal proceedings, the plaintiff suffered a deprivation of liberty apart from the initial arrest; and (4) the criminal proceeding was resolved in the plaintiff's favor. Id. at 308-09. There is no dispute that Ballard and France were deprived of their liberty and that criminal proceedings were ultimately resolved in their favor, so we address only the first two elements.
Participation. Ballard and France must provide evidence that each defendant personally violated their rights. For malicious prosecution, "the term `participated' should be construed within the context of tort causation principles. Its meaning is akin to `aided.' To be liable for `participating' in the decision to prosecute, the officer must participate in a way that aids in the decision, as opposed to passively or neutrally participating." Id. at 308 n.5.
"It has been long settled that the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause." Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006) (internal citations and quotation marks omitted). And "[a]n eyewitness identification will constitute sufficient probable cause unless ... there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation." Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (internal quotation marks omitted). An exception to this rule applies when the indictment was obtained wrongfully by police officers who knowingly presented false testimony to the grand jury or who testify with a reckless disregard for the truth. Robertson, 753 F.3d at 616 (quoting Mott, 524 Fed.Appx. at 187); cf. Sykes, 625 F.3d at 305.
Ballard and France were arrested and prosecuted via warrants secured by grand jury indictments. Those indictments were based, in large part, on testimony and eyewitness identifications from Special Agent Lucas. Because probable cause "was established on the basis of a grand jury indictment, [plaintiffs] b[ear] the burden of producing evidence demonstrating that the remaining [defendants] either knew or were reckless in not knowing that Lucas gave false testimony that tainted the finding of probable cause." Robertson, 753 F.3d at 619.
Special Agent Lucas independently identified Ballard as the man who sold drugs to Bray in his grand jury testimony and at Ballard's trial. None of the RCSO officers identified Ballard or testified before the grand jury. Lucas's identification thus provides probable cause — and the defendants are entitled to summary judgment — unless there is evidence that a reasonable officer in each defendant's position would have known there was no probable cause to prosecute Ballard.
Ballard presents little evidence that Metcalf participated in his prosecution. There is no evidence Metcalf identified Ballard, and he did not testify before the grand jury or at Ballard's trial. Ballard argues that Metcalf watched the video of
Metcalf did, however, conduct audio surveillance of the buy. Ballard points out that Transou, acting as his stand-in, needed help finding the location for the drug buy at Eastgate Apartments. Ballard asserts that he lived within two miles of Eastgate and would not have needed directions. He also asserts that Transou, pretending to be Ballard, referred to Ballard in the third person. We fail to see how a reasonable officer would know that Transou was not Ballard because he needed directions to an apartment complex. And even assuming a reasonable officer would have noticed Transou's passing mention of "West" (for "Lowestco" Ballard), that would not be enough to make a reasonable officer doubt Special Agent Lucas's eyewitness identification of Ballard as the drug dealer.
Finally, Ballard argues that Metcalf made the phone calls to Transou with Bray and must have realized Bray was not calling the number listed in the official report. At his criminal trial, Lucas testified that he and Metcalf would "look at the phone, or the informant would give him the number, they dial the number, or the informant would dial the number, and he was supposed to show you the phone, what number he dialed." App'x at 2293, Lucas Testimony at Lucas Trial, R. 120. Yet Lucas wrote the DEA report that contains the wrong number. And while we could reasonably infer that Metcalf knew Bray was calling a different number, we cannot make the inferential leap to conclude that a reasonable officer would have known Bray was not calling Ballard.
Ballard also offers little evidence that Mayer participated in his prosecution. Mayer provided video surveillance of the buy, but did not identify Ballard and did not testify before the grand jury or at trial. Ballard points out that Mayer was following Bray on September 7, when a state trooper stopped Transou in a green Ford Bronco, and argues that Mayer should have known that Transou was not Ballard when he arrived at the September 9 buy in the same car.
But there is no evidence that Mayer saw Transou during the previous incident. Lucas's DEA report from the earlier incident did note that Transou had been driving a green Bronco on September 7, but it did not include a description of Transou and it does not suggest that Mayer saw Transou. Lucas testified at Ballard's trial that on September 9 "Ballard" (Transou) was the third different person law enforcement had seen driving the Bronco, which explains why the September 7 incident raised little suspicion. Once probable cause is established, an officer is under no duty to investigate further or to look for additional evidence that might exculpate the accused. Ahlers, 188 F.3d at 371. Thus, because Ballard presented no evidence that a reasonable officer would have doubted Lucas's
Ballard did not argue that Faith was involved in his prosecution in the district court, and he makes only a barebones argument here. We therefore affirm summary judgment to Faith.
Special Agent Lucas also identified France, testifying before a grand jury and at trial that she was the woman who sold him drugs. None of the RCSO officers identified France. They were thus entitled to rely on Lucas's identification and the ensuing indictment for probable cause unless there is evidence that a reasonable officer in each defendant's position would have known there was no probable cause. See Robertson, 753 F.3d at 619; Ahlers, 188 F.3d at 370.
Despite Metcalf's involvement in the investigation that led to France's arrest, France has not provided evidence that a reasonable officer would have known there was no probable cause for her prosecution. Metcalf provided audio surveillance and security in the field. He also identified Price, and Lucas's DEA report and Captain Faith's search warrant affidavit falsely stated that Metcalf and Faith followed Price from his home as he went to meet Bray during the October 25 buy. France points to this evidence and relies heavily on our previous decision in Webb, where we held that Metcalf was not entitled to summary judgment on Price's malicious prosecution claim. 789 F.3d at 670. According to France, because there was a question of fact for Price, there must also be a question of fact for her.
Despite this case arising from the same facts, Webb does not control our decision because Price's malicious prosecution claim is distinct from France's. We denied summary judgment to Metcalf in Webb because Lucas testified that he relied on Metcalf's identification of Price. This "establishe[d] a genuine issue of material fact as to whether Metcalf ... influenced Lucas's grand jury testimony and thereby aided in the decision to prosecute Price." Id. at 666. Here, Metcalf never identified France, and his actions had no impact on Lucas's grand jury testimony.
Moreover, Webb did not include an individualized inquiry into whether a reasonable officer in Metcalf's position would have believed there was probable cause. Id. at 666. Metcalf saw an African-American woman enter the vehicle for the drug buy, but could not identify her. Lucas, who was in the vehicle, identified the woman as Geneva France and testified before the grand jury and at trial that she sold him drugs. That identification and the indictment was enough for probable cause. The evidence cited here and in Webb casts doubt only on the probable cause to prosecute Price. Thus, because France has not shown that "her own rights were violated, and that the violation was committed personally by the defendant," Robertson, 753 F.3d at 615, we affirm summary judgment to Metcalf.
France has provided no evidence that Mayer participated in her investigation or prosecution. We therefore affirm summary judgment to Mayer.
France's malicious prosecution claim against Captain Faith mirrors her claim against Detective Metcalf. Faith was in the same vehicle as Metcalf and provided audio and video surveillance during the controlled buy. Three differences make France's claim against Faith weaker than her claim against Metcalf: Faith did not take part in Bray's initial phone calls, Faith played no role in identifying France, and Faith did not testify at France's trial. France argues that a fourth difference is dispositive: Faith admitted that his affidavit in support of a search warrant for Price's home falsely stated that he and Metcalf saw Price leave his home and followed him as he went to meet Bray during the controlled buy. The government used the search warrant to secure a guilty plea from Price after they searched his home and seized guns and drugs on October 26. See Webb, 789 F.3d at 656. But France was charged and convicted only for the October 25 buy, so the affidavit and search of Price's home had no impact on her prosecution. As Faith was not a participant in France's prosecution and had no reason to doubt the existence of probable cause, we affirm summary judgment in his favor.
An officer violates a person's constitutional rights when he knowingly fabricates evidence against them and a reasonable likelihood exists that the false evidence would have affected the jury's decision. Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006). A plaintiff does not need to show that the government lacked probable cause to prevail on a fabrication of evidence claim. Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997).
Ballard's fabrication of evidence claim against Metcalf follows his malicious prosecution claim. Metcalf's only real involvement was being with Bray when he placed the initial phone calls to Transou. The DEA report listed the wrong number for Ballard, a number Bray never dialed. Although Lucas wrote the report, we could infer that Metcalf knew Bray was calling a different number. Even then, there is no evidence that the number played a meaningful part in Ballard's prosecution, and the discrepancy between numbers was not "reasonably likely to affect the jury's decision" in light of the fact that Lucas identified Ballard. See Webb, 789 F.3d at 670 (citing Gregory, 444 F.3d at 737). As such, Metcalf is entitled to summary judgment.
Ballard has failed to provide any evidence showing that Mayer fabricated evidence against him. While Mayer recorded the buy that led to Ballard's arrest, Ballard does not claim that the video was fabricated or altered. Cf. Webb, 789 F.3d at 668-69 (denying summary judgment because there was a question of fact as to whether officers tampered with the audio recording of the controlled buy). He is therefore entitled to summary judgment.
Ballard makes no argument that Faith fabricated evidence against him, so we affirm summary judgment in Faith's favor. See Robertson, 753 F.3d at 615.
France's fabrication of evidence claim against Metcalf fails for the same reason her malicious prosecution claim fails: she has not provided evidence that Metcalf fabricated evidence against her, as opposed to Price. France points out that the panel in Webb held that there was a question of fact on Price's fabrication of evidence claim against Metcalf, but Webb's holding was based on the false statement that Metcalf and Faith followed Price. Webb, 789 F.3d at 670. As before, we could draw an inference in France's favor from Price's claim in Webb. But the false statement that Metcalf and Faith followed Price during the controlled buy would not have been "reasonably likely to affect the jury's decision" at France's trial. Id. (citing Gregory, 444 F.3d at 737). Special Agent Lucas, after all, identified France at trial and testified that he personally bought drugs from her. We thus affirm summary judgment to Metcalf on this claim.
We affirm summary judgment to Mayer on France's fabrication of evidence claim because Mayer's only action in France's prosecution was to provide Metcalf an accurate, if outdated, photo of France. While we disapprove of the officers' use of a single photo labeled with a suspect's name to identify France — particularly a sixth grade photo from years before — the evidence was not fabricated and cannot serve as the basis for a fabrication of evidence claim.
We affirm summary judgment to Faith on France's fabrication of evidence claim for the reasons provided on her claim against Metcalf. While Faith admitted that he made a false statement in his search warrant affidavit against Price, there is no evidence that he fabricated evidence against France. See Webb, 789 F.3d at 670 (citing Gregory, 444 F.3d at 737).
France also appeals the district court's decision to grant summary judgment to the individual defendants on her Brady claims. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Brady requires prosecutors and police to turn favorable evidence over to the accused when it is material to either guilt or punishment. Id. at 87, 83 S.Ct. 1194; Moldowan v. City of Warren, 578 F.3d 351, 381 (6th Cir. 2009). Evidence is material when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Brady rule extends to evidence that is favorable "either because it is exculpatory, or because it is impeaching." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
France claims the defendants failed to disclose, among other things, that Bray was stealing drugs and money; that Bray was using his own drugs in deals; that Bray was using stand-ins; and that Bray was staging phone calls. We have already addressed Bray's use of stand-ins. Beyond that, evidence of Bray's misdeeds would have been useful only to impeach Bray. In light of Lucas's testimony — an eyewitness identification by an experienced DEA agent that France was the
Last, Ballard and France appeal the decision to grant summary judgment to Richland County on their Monell claims. Richland County cannot be liable under Monell without an underlying constitutional violation. Robertson, 753 F.3d at 622 (citing Scott v. Clay Cty., Tenn., 205 F.3d 867, 879 (6th Cir. 2000)). Because no constitutional violations occurred, we affirm.
Ballard and France, in their briefing and at oral argument, assert that they were unable to present more evidence showing a genuine issue of material fact because the district court did not allow adequate discovery. "The scope of discovery is within the sound discretion of the trial court, and a ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown." S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th Cir. 2008) (citation and internal quotation marks omitted). The plaintiffs' primary complaint is that they were unable to depose the individual defendants prior to the district court's first decision granting summary judgment to Mayer, Faith, Sheldon, and Metcalf in part.
In plaintiffs' first opposition to the individual defendants' motions for summary judgment, filed October 15, 2008, the plaintiffs requested "limited discovery." The district court allowed the plaintiffs to take the deposition of the Mansfield Police Chief, but denied all other discovery. The district court then stayed proceedings on February 9, 2009, pending the Department of Justice's investigation into Operation Turnaround. On August 3, 2009, almost ten months after their opposition to summary judgment and first request for additional discovery, the plaintiffs moved for additional discovery again and requested — apparently for the first time — to depose Metcalf, Mayer, and Faith. On December 7, 2010, the plaintiffs requested additional discovery yet again. While the district court's stay of discovery remained in place, the plaintiffs were permitted to supplement the record with the documents and transcripts from Lucas's criminal trial. These documents included the DEA and RCSO files on Operation Turnaround, as well as the testimony of Bray, Metcalf, Mayer, and Faith at Lucas's trial.
The district court then issued its first decision, granting summary judgment to Mayer, Faith, and Sheldon, but denying summary judgment in part to Metcalf. Following that decision, the plaintiffs were allowed to conduct limited additional discovery in support of their claims against Metcalf and Richland County, and they took the depositions of Faith and several other RCSO officers. They did not, however, take the depositions of Detective Metcalf, Sergeant Mayer, or Sheriff Sheldon, and the district court went on to grant summary judgment to Metcalf and Richland County.
Ballard and Frances's argument that the district court abused its discretion is unpersuasive on this record. While the plaintiffs were unable to depose the individual defendants, they did not even request to depose Metcalf, Mayer, or Faith until their second request for additional discovery — almost a year after filing their opposition to summary judgment and their first detailed request for discovery. By the time the plaintiffs asked to depose the individual defendants, the vast majority of
Finally, Ballard and France appeal the district court's decision to deny their motion to supplement the record with a declaration from James W. Wheadon prior to the court's first summary judgment decision. The plaintiffs sought to add the declaration of Wheadon, a purported expert witness experienced in working with confidential informants, to "show[] that reasonable, trained, supervisors and officers who followed the generally accepted procedures in using confidential informants, could not help but be aware of the sort of misconduct that is alleged to have occurred during `Operation Turnaround.'" R. 145, Motion to Suppl. Record at 3-4, PID 5618-19.
The district court denied the motion for two reasons. First, plaintiffs submitted the expert testimony "months after the summary judgment deadline with no good cause demonstrated for [their] tardiness." R. 151, Dist. Ct. Op. at 43, PID 5719. Second, Wheadon's declaration was "irrelevant in that it attempts to offer opinion evidence on what is a matter of law for the court to decide — whether qualified immunity applies, or must be denied because Defendants' conduct violated some clearly-established constitutional or federal statutory right." Id.
We agree with the district court's reasoning. Ballard and France have provided no explanation for offering this testimony so long after the summary judgment deadline. And, "[a]lthough expert testimony may be more inferential than that of fact witnesses, in order to defeat a motion for summary judgment an expert opinion must be more than a conclusory assertion about ultimately legal issues." Williams v. Ford Motor Co., 187 F.3d 533, 543 (6th Cir. 1999) (citation and internal quotation marks omitted). Wheadon's declaration consists of his opinion on how a "reasonable" or "reasonably trained" officer would have acted in the individual defendants' positions. We hold the district court did not abuse its discretion in denying the motion to supplement the record with that declaration.
Operation Turnaround was an embarrassment and a stain on the Richland County Sheriff's Office, the DEA, and law enforcement in general. Lowestco Ballard and Geneva France should never have been forced to spend months in prison for crimes they did not commit. Yet in a suit under 42 U.S.C. § 1983, plaintiffs must provide evidence that each individual defendant personally violated their rights. The plaintiffs have not provided that evidence with respect to Metcalf, Mayer, Faith, or Sheldon, and so those officers and Richland County cannot be liable under § 1983. Accordingly, and for the reasons set forth above, we
HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree that summary judgment was properly granted in favor of Richland County Sheriff J. Steven Sheldon, Maj. Op. at 625, and that Plaintiffs' fabrication-of-evidence
However, I disagree with the majority regarding Ballard's malicious prosecution claims against Richland County Detective Charles Metcalf, Sergeant Matthew Mayer, and Captain Larry Faith, and France's malicious prosecution claims against Metcalf and Faith. With or without Bray's 2012 declaration,
Operation Turnaround began in late 2004. The RCSO signed Jerrell Bray as a confidential informant (CI) in January 2005. Beyond that point, I part with the majority's depiction of the facts in certain respects. Viewing the facts in the light most favorable to Plaintiffs, as we must, Plaintiffs presented evidence that the RCSO, not the DEA, determined who would be targeted in Operation Turnaround. App'x 09-cr-222 Metcalf Testimony at 1700-01; Faith Testimony at 2218-19; Lucas Testimony 2293-94. It is undisputed that Bray was working as a CI for the RCSO to avoid prosecution for an incident involving stolen property in Richland
Unmentioned in Defendants' appellate briefs and the majority opinion is that as early as February 10, 2005,
Mott, 524 Fed.Appx. at 180.
Ballard and France were indicted on
France, Ballard, Dwayne Nabors, Joe Ward II, and Johnnie Parker instituted this action in December 2007, asserting claims of malicious prosecution and fabrication of evidence against RCSO officers Metcalf, Mayer, Faith, and Sheldon; RCSO's paid CI, Jerrell Bray; DEA Special Agent Lee Lucas;
The Assistant United States Attorney stated at Bray's December 20, 2007 plea hearing:
PID 1016-19 (emphasis added).
As we recounted in another Operation Turnaround case, Webb v. United States, 789 F.3d 647, 652-53 (6th Cir. 2015):
Webb, 789 F.3d at 652-53 (emphasis added).
Plaintiffs filed their amended complaint on April 18, 2008.
CI Bray was not the only Defendant to plead guilty while this matter was before the district court. In May 2009, RCSO Detective Metcalf, CI Bray's supervisor throughout Operation Turnaround,
The Information to which Metcalf pleaded guilty states in pertinent part:
PID 4170-72.
After Metcalf pleaded guilty, he withdrew the affidavit he had submitted in support of his first motion for summary judgment,
PID 313-14/Metcalf Affid. attached as exhibit to Metcalf's Mo. for Summ. J. filed 6/30/08.
In January 2011, the United States and all federal defendants were dismissed pursuant to a comprehensive settlement with all Plaintiffs. PID 6130.
On January 4, 2012, the district court granted summary judgment in full to Mayer, Faith, and Sheldon and in part to Metcalf, denying Metcalf summary judgment as to Ballard's and Nabors's false arrest, malicious prosecution, and fabrication of evidence claims. PID 5680, 5721.
On March 27, 2012, Metcalf moved for summary judgment on Ballard's false arrest claim, PID 5858, and Richland County moved for summary judgment on Plaintiffs' Monell claims.
The district court dismissed the case on April 21, 2015. PID 7940.
The majority affirms the district court's determination that, without Bray's 2012 affidavit, there was no record evidence that Metcalf committed any Fourth Amendment violation against Ballard. PID 7822. I disagree. I also disagree that the district court properly granted summary judgment in Mayer and Faith's favor on Ballard's Fourth Amendment claims.
Malicious prosecution "encompasses wrongful investigation, prosecution, conviction, and incarceration." Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006)). Plaintiffs presented evidence from which a fact finder could conclude that Mayer, Metcalf, and Faith influenced the decision to prosecute Ballard and that the prosecution lacked probable cause. See Sykes, 625 F.3d at 308.
METRICH Project Director Dino Sgambellone testified that as a result of Detective Dawn Brown's report and various other reports of improprieties, METRICH deemed Bray unreliable as a CI and "deactivated" him; Richland County, however, continued using Bray. DEA Agent Lucas testified that even after the DEA became involved in Operation Turnaround, RCSO Detective Metcalf and Sergeant Mayer continued to control Bray most of the time. App'x 09-cr-222 Lucas testimony at 2293-94, Metcalf testimony at 1709. Agent Lucas also testified that Metcalf, Mayer, and Faith, all of whom were directly involved in monitoring drug transactions involving CI Bray, provided information that went into Lucas's reports of each transaction, France App'x 2291-96, reports that went to Assistant United States Attorney Blas Serrano, who prosecuted Plaintiffs. AUSA Serrano testified on deposition that he received reports to support the indictment of each of the Operation Turnaround targets and recalled that some were RCSO reports. Id. at 3184-85.
Metcalf testified that before setting up any drug buys, RCSO officers would view photographs of the targets and suspects so they would know what they looked like. France App'x at 1780-1782. Metcalf's, Mayer's, and Lucas's names appear in the official report of the September 9, 2005, transaction in which Transou was a standin for Ballard. Metcalf monitored and kept sound recordings of the calls setting up the purported Bray-Ballard buy and of the transaction, Mayer videotaped the transaction, and Faith monitored the cobble phone from the office. Phone records show that
A reasonable factfinder could conclude that the actions or omissions of Metcalf, Mayer, and Faith constituted either influence over or participation in the decision to prosecute Ballard even though they did not make the ultimate decision to prosecute him. See Sykes, 625 F.3d at 311 (concluding that "a reasonable jury could have found the Defendants liable for malicious prosecution ... [where] there was not only a lack of probable cause to institute a criminal proceeding against the Plaintiffs, but the Defendants' actions ... were sufficient to qualify as either `influence [over] or participat[ion] in the decision to prosecute' regardless of the fact that the Defendants, themselves, did not make the ultimate decision' .... Based on the evidence... a reasonable jury could have concluded that Sgt. Nichols testified falsely at the preliminary hearing and that her statements were material to the state court's finding of probable cause.")
Plaintiffs also presented sufficient evidence to survive summary judgment regarding whether RCSO Defendants Metcalf and Faith influenced, participated, or aided in the decision to prosecute France.
Lucas identified France at her trial in February 2006 as the woman who sold
Detective Metcalf testified at France's trial that on October 25, 2005, he was responsible for "the technical work, the recordings ... basically kept security for our informant [Bray] and Lee Lucas," and that he helped get the controlled phone-call set-up, i.e., Bray's purported call to Ron Davis, an alias used by Herman Price. PID 1806-07, 1810, 1840. Metcalf testified that he had done surveillance on Ron Davis before the purported Bray/Davis-France drug transaction, and that he and Captain Faith performed surveillance of the drug buy and observed Bray actually meet with Ron Davis. PID 1806, 1811. Metcalf testified that he received information from Jerrell Bray regarding the identity of the female. On cross-examination, Metcalf testified that because Bray gave him the name "Geneva," the RCSO looked for that name in the Mansfield schools photos. PID 1849. Metcalf also testified that he came across Geneva France's name after getting police department records of the calls made at 154 Arthur, Geneva France's address. PID 1850. The photo the RCSO showed to Bray and Lucas is a sixth-grade photograph of France. France App'x 3196. France was twenty-three years old when she was tried for selling drugs to Bray and Lucas.
Bray testified at Lucas's trial that he did not call Ron Davis to set up the drug transaction, instead he called Karmiya Moxley, a friend of Bray's girlfriend Alexis Young. The second call Bray made was not to Ron Davis either. App'x 09-cr-222 Bray Testimony 1158-62, 1168-69. Bray testified that Geneva France was not the woman involved in the drug transaction on October 25, 2005; Moxley, who is known as Shea Shea and "Lil S," sold Bray crack that day. App'x 09-cr-222 Bray Testimony 1158-62, 1168; Id. Moxley Testimony at 1929. Unlike his testimony at France's trial, Metcalf testified at Lucas's trial that he prompted Bray to name someone as the woman involved in the transaction. France App'x/Metcalf Testimony at 1795 ("I told [Bray] we had to identify her, and he came up with a girl by the name of Geneva ... and she lived ... on Arthur, and I think my sergeant [Mayer] got a police report from Arthur and came up with the names, and one of the names was Geneva France.") Bray said he knew Geneva from the neighborhood. Then, the RCSO obtained the sixth-grade photo of France. Id. Mayer Testimony 1618-20. Metcalf showed Bray and Lucas, separately, the photo of France, and each identified France as "Lil S" from a one-photo array. France App'x /Metcalf Testimony at France Trial 220-221, 227-28. Moxley, who actually engaged in the transaction, was a brunette, while France had dyed blonde hair. Simple observation would have alerted Metcalf that France was not present at the drug transaction.
I would reverse the grant of summary judgment to Metcalf and Faith on France's malicious prosecution claims.
Richland County asserted in its motion for summary judgment that Plaintiffs cited no authority to support that there can be a viable Monell claim against it based on Bray's misconduct, but Richland County's own briefing below cited authority recognizing that the activities of paid government informants can be considered government action. See Hiser v. City of Bowling Green, 42 F.3d 382, 383 (6th Cir. 1994) (this court looks "to all the facts to determine whether a paid government informant `may fairly be said to be a [government] actor ... because he has acted together with
Without considering Bray's 2012 declaration, Plaintiffs presented evidence that, with Bray's input, the RCSO, not the DEA, decided whom to target in Operation Turnaround,
Thus, Plaintiffs presented evidence sufficient to raise an issue of fact whether Richland County had a custom of tolerance of or acquiescence in federal rights violations, which would support the existence of an illegal municipal policy or custom. See Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) ("There are at least four avenues a plaintiff may take to prove the existence of a municipality's illegal policy or custom. The plaintiff can look to (1) the municipality's legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations.") (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018, and other cases).
I would reverse the district court's grant of summary judgment to Richland County on Ballard's and France's Monell claims, to Metcalf, Mayer, and Faith on Ballard's malicious prosecution claims, and to Metcalf and Faith on France's malicious prosecution claim.
Webb, 789 F.3d at 660 (emphasis added).
Mott, 524 Fed.Appx. at 181-83 (emphasis added).
Matatall, 549 F.3d at 353-54. The instant case is more analogous to Sykes, which was decided after Matatall.
Webb, 789 F.3d at 670 (emphasis added).
