Linda Everson v. Calhoun County ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0053n.06
No. 09-2183 FILED
Jan 24, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LINDA EVERSON, named as “Linda (Sonte) )
Everson,” aka Sonte Everson, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
CALHOUN COUNTY, et al., ) OPINION
)
Defendants-Appellants. )
)
BEFORE: BOGGS, COLE, and CLAY, Circuit Judges.
COLE, Circuit Judge. In this 42 U.S.C. § 1983 action for First Amendment retaliation,
Defendant-Appellant Gary Picketts appeals on qualified immunity grounds the district court’s order
granting in part and denying in part his motion to dismiss and alternative motion for summary
judgment.1 For the following reasons, we AFFIRM the judgment of the district court.
1
Defendant Calhoun County appealed the district court’s determination that it was not entitled
to sovereign immunity, but withdrew its appeal of this issue at oral argument.
No. 09-2183
Everson v. Calhoun County
I. BACKGROUND
A. Factual History
1. The Police Report & Initial Investigation of Graham
In September 2005, Plaintiff-Appellee Linda Everson reported to the Calhoun County
Sheriff’s Office that, on December 16, 2004, her then-boyfriend Officer Doug Graham of the Battle
Creek Police Department forcibly sodomized her during an otherwise-consensual sexual encounter.
She stated that she had broken up with Graham and, unsure how to proceed, confided in friends, a
counselor, and her physician about the sexual assault before finally deciding to file a police report.
Calhoun County Detective Guy Picketts handled the investigation into Graham’s conduct.
He interviewed Everson; several of Everson’s friends and coworkers in the police department, all
of whom confirmed that Everson reported being sexually assaulted by Graham; and Everson’s
doctor. He also interviewed Graham, who denied that the sodomy occurred and suggested that
Everson filed the report out of spite when she found out that he was marrying another woman.
Picketts interviewed Everson’s friend Sheri Lemonious as well. Although Picketts reported in 2005
that Lemonious said Everson described the sodomy as consensual, Lemonious attested in 2009 that
she told Picketts the opposite. Everson alleges that Picketts failed to interview several important
witnesses during his investigation.
Picketts submitted a report of his investigation to the Calhoun County Prosecutor’s Office,
which recused itself on conflict-of-interest grounds. In January 2006, the Branch County prosecutor
reviewed Picketts’s report and declined to prosecute Graham for sexual assault.
-2-
No. 09-2183
Everson v. Calhoun County
2. Everson’s Speech
Upset by the decision not to prosecute, Everson publicly criticized Picketts loudly and
repeatedly, accusing him of not doing his job and being “just part of the good ole boy system.” She
mentioned her complaints to colleagues in law enforcement, at least one of whom relayed her
statements to Picketts. Everson also met with Picketts’s boss on August 16, 2006, to initiate a
formal complaint against Picketts and sent a letter to the Calhoun County prosecutor on August 31,
2006, asking him to take action about her concerns regarding Picketts’s investigation of Graham.
3. Picketts’s Investigation & Arrest of Everson
Picketts began documenting Everson’s comments in a new investigative report—this time
against Everson. On August 22, 2006, Picketts interviewed Ethel Fitzpatrick (“Mrs. Fitzpatrick”),
Everson’s former friend, who stated that Everson had told her that the sexual assault had never
occurred. Picketts did not confront Everson about the allegations, and eight days later, he requested
an arrest warrant for Everson for the felony of filing a false police report. Everson alleges that
Picketts opened the investigation against her before he interviewed Mrs. Fitzpatrick. Everson also
alleges that Picketts lied about the first time he met Mrs. Fitzpatrick. Keith Fitzpatrick (“Mr.
Fitzpatrick”), Mrs. Fitzpatrick’s husband, asserts that at some point Picketts came to their house, told
them that he had a personal dispute with Everson, and spoke with Mrs. Fitzpatrick at length and in
private. Mr. Fitzpatrick attested that he could not remember whether the in-home meeting took place
before or after the August 22, 2006 interview. But he also stated that he had never seen Picketts
before the in-home meeting, and both Fitzpatricks were present for the August 22, 2006 interview.
-3-
No. 09-2183
Everson v. Calhoun County
Calhoun County did not recuse itself from the case against Everson, but rather charged her
with filing a false police report. After a preliminary hearing, the Michigan district court found
probable cause that Everson had committed the crime and bound her over to the circuit court for
trial. The circuit court quashed the bind-over and dismissed the case for lack of evidence. Everson
was then rearrested on the same charges, and the case was transferred to Kalamazoo County. On
February 1, 2008, the Kalamazoo County Prosecutor dismissed all charges against Everson “in the
best interests of justice.”
B. Procedural History
Everson filed a complaint against Calhoun County, the prosecutor, and Picketts (collectively,
“Defendants”) under § 1983, alleging that their actions (1) violated her equal protection rights; and
(2) constituted illegal retaliation for the lawful exercise of her First Amendment rights. In response,
Defendants filed a motion to dismiss and, in the alternative, a motion for summary judgment. After
oral argument, the district court issued an order (1) dismissing the equal protection claim; (2)
dismissing the retaliation claim against the prosecutor on absolute prosecutorial immunity grounds;
(3) denying the motion in all other respects as to Picketts; and (4) denying the motion in all other
respects as to Calhoun County without prejudice to renewal of the motion after the close of all
discovery. Picketts filed this appeal, alleging that the district court erred in failing to dismiss all
claims against him on qualified immunity grounds.
-4-
No. 09-2183
Everson v. Calhoun County
II. DISCUSSION
A. Standard of Review
This court reviews a district court’s denial of summary judgment on qualified immunity
grounds de novo. Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006). “We may only
review the denial of qualified immunity to the extent that the ‘appeal involves the abstract or pure
legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established
law.’” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (quoting Gregory, 444 F.3d at 742).
The defendant must “be willing to concede the most favorable view of the facts to the plaintiff for
purposes of the appeal.” Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009).
B. Analysis
In determining whether qualified immunity applies, this court employs a two-step test,
considering (1) whether, viewing the allegations in the light most favorable to the injured party, a
constitutional right has been violated; and (2) whether that right was clearly established. Dorsey v.
Barber, 517 F.3d 389, 394 (6th Cir. 2008). We have discretion to undertake the steps in either order.
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
It is clearly established that “the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”
Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a prima facie First Amendment retaliation
claim, Everson must establish (1) protected speech; (2) injury as a result of defendant’s actions; and
(3) causation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
-5-
No. 09-2183
Everson v. Calhoun County
Picketts first argues that Everson’s allegations do not constitute a prima facie retaliation
claim because they fail to establish a lack of probable cause, an element of causation. He is correct
that § 1983 claims for retaliatory prosecution and arrest fail as a matter of law if the defendant had
probable cause. See Hartman, 547 U.S. at 261-62 (Bivens claim for retaliatory prosecution); Barnes
v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (retaliatory arrest). Probable cause exists when an
officer has reasonably trustworthy information sufficient to warrant a prudent person in believing
that a suspect has committed a crime. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000).
In determining whether probable cause existed in this case, we examine the totality of the
circumstances from the perspective of the arresting officer at the time of the arrest. Parsons v. City
of Pontiac, 533 F.3d 492, 501 (6th Cir. 2008). In § 1983 actions, the existence of probable cause
is a jury question unless only one reasonable determination is possible. Id. (citing Fridley v.
Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)).
In this case, there are genuine disputes of material fact about whether Picketts intentionally
changed Lemonious’s statement in his report, spoke privately with Mrs. Fitzpatrick in her home at
length before she gave her formal statement, and influenced the content of Mrs. Fitzpatrick’s
statement. Viewing the facts in the light most favorable to Everson, a reasonable jury could find
that, at the time Picketts sought an arrest warrant for Everson, the information he had collected
against her was not reasonably trustworthy. Because more than one reasonable determination as to
probable cause is possible, it is therefore appropriate to allow the case to proceed to trial.
Picketts’s argument that this court should accept the prosecutor’s and state court’s findings
of probable cause as evidence that probable cause existed is inapposite. Because these probable
-6-
No. 09-2183
Everson v. Calhoun County
cause determinations were based only on the evidence that Picketts included in his report—which
did not describe the circumstances, as alleged by the plaintiff, surrounding Lemonious’s and Mrs.
Fitzpatrick’s statements—we do not find them probative to the issue of whether Picketts had
sufficient reasonably trustworthy information at the time of the arrest.
Picketts also contends that the district court’s finding that genuine issues of material fact exist
was erroneous because it relied on a series of unreasonable adverse inferences and omitted a number
of relevant facts. But the “contention that the district court erred in finding a genuine issue of fact
for trial is not the type of legal question which we may entertain on an interlocutory basis.” Gregory,
444 F.3d at 743. Although this court has recognized an apparent exception “‘where the trial court’s
determination that a fact is subject to reasonable dispute is blatantly and demonstrably false,’”
Moldowan, 578 F.3d at 370 (quoting Wysong v. Heath, 260 F. App’x 848, 853 (6th Cir. 2008))
(internal quotation marks omitted), that exception does not apply here. The district court noted the
following disputed facts, among others: (1) when Picketts opened his investigation into Everson;
(2) whether Lemonious told Picketts that Everson said she had not been raped; and (3) when and
how Mrs. Fitzpatrick surfaced as a witness. All of these facts are material to the existence of
probable cause. These facts are also genuinely in dispute: each party answers these questions
differently, each party’s allegations of fact are supported by witness statements, and no objective
evidence makes one party’s allegations obviously false. Cf. Scott v. Harris, 550 U.S. 372, 380-81
(2007) (finding no genuine dispute of material fact where video evidence blatantly contradicted the
plaintiff’s allegation that he was driving carefully). Because the district court’s finding of genuine
-7-
No. 09-2183
Everson v. Calhoun County
issues of material fact was not blatantly and demonstrably false, we lack jurisdiction to undertake
further review in this regard.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the judgment of the district court denying
Picketts’s motion for summary judgment.
-8-