Philip Apsey v. Chester Township, OH, et al

Filing

OPINION filed : REVERSED and REMANDED, decision not for publication. Ralph B. Guy , Jr., Circuit Judge; Deborah L. Cook, Circuit Judge; and David W. McKeague, (authoring), Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0283n.06
No. 14-3875
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PHILIP APSEY,
Plaintiff-Appellee,
v.
CHESTER TOWNSHIP, et al.,
Defendants-Appellants.

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FILED
Apr 15, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO

BEFORE: GUY, COOK, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Officers Matthew Brickman and Todd Pocek bring this
interlocutory appeal from an order of the district court denying them qualified immunity on
plaintiff Philip Apsey’s 42 U.S.C. § 1983 claims of false arrest and malicious prosecution. We
REVERSE the district court because the undisputed facts show probable cause existed to arrest
and prosecute Apsey and REMAND for consideration of the stayed state law civil conspiracy
claim.
I. Background
On July 13, 2010, Officers Brickman and Pocek were dispatched to the intersection of
Route 306 and Cedar Road, driving in separate vehicles. Karen Moleterno, the assistant fire
chief, had reported a tip that Apsey would be in a gray pickup truck driving through the
intersection to take his son to daycare and would be driving under a suspended license. (R. 49-3,
Page ID # 792.) Officer Brickman spotted Apsey at the intersection around 8:46 AM and
testifies that he observed Apsey drive left of the solid yellow line.

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Brickman and Pocek stopped Apsey’s truck. (R. 49-1, Page ID # 585.) Brickman
approached first and noticed a young child in the passenger seat. The child was wearing a t-shirt
from the nearby daycare while clutching a towel and lunch pail. Brickman asked Apsey where
he was taking his son and told Apsey he was stopped for crossing the yellow line. At some
point, Pocek also came to be standing by the truck. Apsey then produced court papers which
showed Apsey’s driving privileges were limited to driving for work purposes. (R. 44, Page ID #
374; R. 49-1, Page ID # 588.) Brickman plugged the information into the LEADS System, a
statewide law enforcement database. The system indicated that Apsey had a suspended license
but did not indicate that Apsey had driving privileges of any kind. As Brickman testified, if a
license is suspended, the system displays a red background with white letters spelling out
“suspended” but adds a special notation if some driving privileges exist. (R. 44, Page ID # 281.)
According to Apsey, Brickman then walked back and forth to his cruiser roughly twelve
times, each time asking Apsey a new question. Pocek stood by the truck during the questioning.
The most Apsey recalls in terms of a discussion with Pocek is Apsey asking Pocek to step away
from the truck and Pocek explaining that Brickman had told him to stay. Eventually, Brickman
asked Apsey where he was headed. Apsey replied he was going to a job site in Kirtland. When
Brickman told Apsey that Kirtland was in the other direction, Apsey responded that he actually
meant a different job site off Route 700. Apsey had been there twice but was going to take some
measurements. Brickman then asked if he could speak to someone at the job site to confirm
Apsey’s story. When Apsey responded that no one was available, Brickman asked if Apsey was
actually taking his son to daycare. Apsey denied that he was. At some point, Apsey also told
Brickman they could drive to Apsey’s home where Apsey could show him the quote sheets for
the job site in order to validate his story. (R. 49-1, Page ID # 588.) After speaking to his

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supervisor, Brickman decided instead to follow Apsey to the job site1 and, while following
Apsey, had Pocek contact the daycare, which confirmed that Apsey’s son was due to check-in at
8:55 AM.
After driving for some time, Apsey pulled into a driveway off Munn Road and began
making a U-turn. Brickman then exited his cruiser and asked where the job site was. Apsey told
Brickman he had pulled into the wrong driveway but that it was the next driveway over. Apsey
then explained “Neal is right there” to which Brickman responded that Apsey was under arrest.
(R. 49-1, Page ID # 591.) The individual Apsey identified as Neal then tried to approach and
speak to Brickman. However, Brickman asked Neal to stay in place and then arrested Apsey for
driving under suspension and for obstruction of official business. (R. 44, Page ID # 312–33.)
Prosecutors later charged Apsey with driving under suspension, obstruction of official
business, and improper lane travel. Apsey negotiated a plea deal and pled guilty to improper
lane travel in exchange for dismissing the other charges. Apsey next brought this § 1983 action
against Chester Township, four township police officers, including Brickman and Pocek,2 as well
as Moleterno and Darlene Marzano, Apsey’s ex-wife and Moleterno’s cousin. Apsey alleged
that police had conspired with his ex-wife and her cousin to have Apsey arrested to harm
Apsey’s position in his ongoing custody battle with Marzano over their son. Apsey brought four
claims: (i) arrest without probable cause against the officer–defendants, (ii) malicious
prosecution against the officer–defendants, (iii) Monell liability against the township, and (iv)
state law civil conspiracy against all defendants.

1

Apsey testifies that “Brickman was the only car following me.” (R. 49-1, Page ID #
590.) It is unclear from the record where Pocek was during the drive to the job site or the arrest
in the driveway at Munn Road.
2
Apsey voluntarily dismissed his claims against two of the four police officers. (R. 26.)
Thus, at summary judgment, the only officer–defendants remaining were Brickman and Pocek.
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The magistrate granted summary judgment on the claim of Monell liability and denied
summary judgment on the claims of false arrest and malicious prosecution. The magistrate also
stayed the claim of state law civil conspiracy pending resolution of the false arrest and malicious
prosecution claims. Brickman and Pocek timely appeal the denial of summary judgment on
Apsey’s false arrest and malicious prosecution claims.
I. No Genuine Dispute of Material Fact
We review de novo a district court’s order denying summary judgment based on qualified
immunity. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 (6th Cir. 2013) (citation omitted). In
doing so, we view the evidence in the light most favorable to the party opposing summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, this court has
jurisdiction to review an order denying qualified immunity only “to the extent [the order] turns
on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
Apsey claims the court lacks jurisdiction because qualified immunity turns on whether
Apsey crossed the yellow line, an issue which Apsey claims is genuinely in dispute. We
disagree and find there is no genuine dispute: On this record, Apsey did cross the yellow line.
Apsey pled guilty to improper lane travel in state court and cannot, for purposes of summary
judgment, abandon his guilty plea to manufacture a dispute of material fact.
Under Ohio law, “[a]n accepted guilty plea in an Ohio criminal proceeding is the
equivalent of the defendant taking the witness stand and admitting under oath his guilt of the
offense charged.” State v. Knaff, 713 N.E.2d 1112, 1114 (Ohio Ct. App. 1998). Thus, when
Apsey pled guilty to improper lane travel, he was making an admission under oath that he
crossed the yellow line. As this court has made clear, a party may not contradict an admission
made under oath without providing some persuasive explanation for the contradiction. See White

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v. Baptist Mem. Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012). Yet, in his deposition,
Apsey did not attempt to explain the contradiction. Instead, he attempted to absolve himself of
responsibility for the guilty plea:
I don’t believe I [crossed the yellow line], and there was not any evidence of it.
But Pat Quinn did plead a guilty charge on that. And to this day, I don’t believe I
ever did, and I have not seen any proof of it, no video, anything. (R. 586).
Because no genuine disputes of material fact exist concerning Apsey’s arrest and
prosecution, this court may address the purely legal question of whether the undisputed facts
give rise to a violation of clearly established law.
II. Case Law on False Arrest and Malicious Prosecution
If an officer has probable cause, then the resulting arrest will not violate the Fourth
Amendment.

See Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007).

Likewise, if a

prosecutor has probable cause, then the initiation of criminal proceedings is not a malicious
prosecution in violation of the Fourth Amendment. See Stemler v. City of Florence, 126 F.3d
856, 871–72 (6th Cir. 1997). Probable cause to arrest and probable cause to prosecute are related
but distinct concepts. See Mott v. Mayer, 524 F. App’x 179 (6th Cir. 2013) (citing Miller v.
Sanilac Cnty., 606 F.3d 240, 248 (6th Cir. 2010), and McKinley v. City of Mansfield, 404 F.3d
418, 445 (6th Cir. 2005)). While probable cause to arrest on any crime precludes a false arrest
claim, probable cause to prosecute must be established with respect to each charge brought by a
prosecutor to preclude a malicious prosecution claim. See id.
III. Qualified Immunity as to Pocek
In a § 1983 action, each defendant’s liability must be individually assessed to ensure that
no defendant is improperly held liable for the conduct of another. See Pollard v. City of
Columbus, 780 F.3d 395, 402 (6th Cir. 2015). We begin by assessing Pocek’s liability and find

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his participation in the day’s events insufficient to render him liable as a matter of law. “Pocek’s
contribution to the arrest,” Appellee Br. at 32, appears to be helping with the initial stop of
Apsey’s pickup, standing by the pickup while Brickman questioned Apsey, and then contacting
the daycare, (R. 44, Page ID # 374). That conduct alone did not violate the Constitution. There
was probable cause to stop the pickup since, on this record, Apsey did cross the yellow line and,
to the extent Apsey claims Pocek is liable by not stopping Brickman’s arrest of Apsey, see
Appellee Br. at 31, that claim fails because the record clearly shows Brickman had probable
cause to arrest Apsey. See infra at Part IV.A. For these reasons, we reverse the denial of
qualified immunity to Pocek on both the false arrest and malicious prosecution claims.
IV. Qualified Immunity as to Brickman
A. False Arrest
As to Apsey’s false arrest claim against Brickman, the parties have stipulated that
“L.E.A.D.S. records confirmed that Philip Apsey’s driving privileges were suspended at the time
he stopped and was arrested by Chester township Patrolman, Defendant Matthew Brickman,” (R.
38, Page ID # 151). Further, it is undisputed that Brickman checked the LEADS System before
arresting Apsey, a check which did not turn up any driving privileges.

Under those

circumstances, Brickman could have reasonably concluded that Apsey was driving under a
suspended license.
And even if Apsey was permitted to drive under certain restrictions, Brickman could have
reasonably concluded that Apsey was violating those restrictions by driving not to a job site but
to the daycare. Brickman could also have reasonably concluded that Apsey’s responses and
conduct were intended to stop Brickman from realizing that Apsey was driving in violation of his
license restrictions. As Brickman testified, “Once we arrived [on Munn Road], I knew [the

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plaintiff] was not being truthful as I asked him to exit the vehicle.” (R. 44, Page ID # 336.)
Because Brickman had probable cause to arrest Apsey for driving under suspension and for
obstruction of official business, we reverse the denial of qualified immunity to Brickman on the
false arrest claim.
B. Malicious Prosecution
In a § 1983 action alleging malicious prosecution, the burden of proving a lack of
probable cause is on the plaintiff. See Sykes v. Anderson, 625 F.3d 294, 309–09 (6th Cir. 2010).
Apsey has not met that burden. As discussed, the undisputed facts of the encounter between
Apsey and Brickman created probable cause to arrest Apsey for driving under suspension and
obstruction of official business.

Those facts were recounted in a police report written by

Brickman. (See R. 44, Page ID # 372–79.) That report, in turn, provided the prosecutors with
sufficient evidence of probable cause to prosecute. Nothing in the record suggests that the facts
known to Brickman at the time of arrest had materially changed by the time criminal proceedings
were initiated so that any existing probable cause would have dissipated, and Apsey makes no
argument to that effect. Thus, we reverse the denial of qualified immunity to Brickman on the
malicious prosecution claim.
V. Conclusion
For the foregoing reasons, the decision of the district court is REVERSED with respect
to the false arrest and malicious prosecution claims and REMANDED for consideration of the
stayed state law conspiracy claim.

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