Pleas Kavanaugh v. LFUCG, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Bernice Bouie Donald, Circuit Judge and Jack Zouhary, U.S. District Judge for the Northern District of Ohio.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0606n.06
Case No. 14-6323

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Aug 26, 2015
DEBORAH S. HUNT, Clerk

PLEAS LUCIAN KAVANAUGH,
Plaintiff-Appellant,
v.
LEXINGTON FAYETTE URBAN COUNTY
GOVERNMENT, et al.
Defendants-Appellees.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

OPINION

Before: SUTTON and DONALD, Circuit Judges; and ZOUHARY, District Judge.*
BERNICE

BOUIE

DONALD,

Circuit

Judge.

Pleas

Lucian

Kavanaugh

(“Kavanaugh”) appeals a district court order granting summary judgment to the defendants on
his civil rights claims. In 2009, Kavanaugh was arrested in connection with two separate attacks
on women in Lexington, Kentucky. A grand jury indicted him, and after his motion to sever the
charges was granted, he proceeded to trial regarding the first of the two attacks. A jury acquitted
Kavanaugh regarding the first attack, and the prosecutor dropped the charges regarding the
second attack. In 2013, Kavanaugh filed a state law and federal civil rights action under 42
U.S.C. § 1983 for malicious prosecution. He also claimed that the local government violated

*

The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

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§ 1983 by maintaining a policy or custom of inaction regarding officer misconduct and failing to
train those officers appropriately. The defendants moved for summary judgment, which the
district court granted. We AFFIRM.
I.
This case arose from the defendants’ investigations into two incidents in downtown
Lexington, Kentucky, in late 2009. The first involves an attack on Morgan Persley (“Morgan”),
the 23-year-old daughter of defendant Detective William Persley (“Persley”). On October 24,
2009, Morgan departed a bar after an argument with her then-boyfriend. It was shortly after 1:00
in the morning, so as she walked down the street, Morgan called a friend on her cell phone to
come retrieve her. Still on the call with her friend, Morgan came to a stop under a streetlight
about three or four blocks from the bar. While she stood in the same spot, she observed a man
walk past her; Morgan acknowledged him and kept talking on her phone. The man passed her
again, this time from the opposite direction, and Morgan took note of him more cautiously. As
she hung up her phone, the man approached her a third time, grabbed her from behind, and
dragged her away from the street. Morgan struggled with her assailant, sustaining several
bruises and scrapes, and ultimately broke free. After the attack, Morgan no longer had her cell
phone or her keys.
Responding officers collected blood samples from the scene of Morgan’s attack. Morgan
was able to describe her attacker in general terms, but was unable to provide sufficient facial
details for a composite sketch. Detective Elizabeth Adams (“Adams”) was assigned as the lead
detective for the incident. Without further information, however, the investigation stalled until a
second incident occurred three months later.

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The attack on Laura Baker (“Baker”) took place on December 8, 2009. Baker was sitting
on a bench at a Transit Center bus stop when a man sat down beside her. The man kept staring at
her, so Baker asked if she knew him; he replied, “no, but I’d like to get to know you.” He then
asked if she knew where to get some dope. When Baker responded that she did not, the man
pulled out a plastic baggie with what appeared to be cocaine inside. He asked her to leave with
him to do some of the (alleged) cocaine. He dropped the baggie on the ground as a police officer
emerged from the Transit Center. The man then pulled a “large silver colored pocket knife”
from his pocket and held it to Baker’s side, telling her repeatedly that she “was leaving with
him.” When a bus pulled up to the stop, Baker ran onto the bus and asked the driver to call
police. The suspect walked away.
The responding officer took an initial statement from Baker, filed a report, and brought
Baker to meet Detective Adams. Adams wrote a report of their conversation. The following
day, Baker met with Detective Leah Anderson (“Anderson”) to generate a composite sketch of
her attacker. While Adams drove Baker to and from the appointment with Anderson, Adams did
not accompany Baker during the development of the composite sketch. Persley was assigned as
the lead detective for the Baker investigation.
On December 10, 2009, Adams and Persley compared notes on the similar descriptions
of the suspects in the attacks on Morgan and Baker. Adams reviewed the composite, generated
the previous day with Baker, and noted that it bore a resemblance to Kavanaugh, who had been a
suspect in a previous case. Adams then prepared a photographic line-up of six men, including
Kavanaugh, which was shown separately to Morgan and to Baker. All men in the line-up were
black. However, four had darker skin and two had lighter skin; Kavanaugh was one of the two
with lighter skin.

Both women identified Kavanaugh as their attacker.

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Based on these

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identifications, the detectives swore out arrest warrants for Kavanaugh related to both incidents.
Kavanaugh was arrested five days later, and his DNA was collected to be compared with the
blood samples found at the scene of Morgan’s attack. Adams and Persley testified before a
grand jury, at which time Adams testified that the results of the DNA tests regarding the attack
on Morgan were unavailable. The grand jury indicted Kavanaugh regarding both incidents.
Kavanaugh was first tried for the attack on Morgan. Before the trial began, Kavanaugh
filed a motion to suppress Morgan’s line-up identification of Kavanaugh, claiming it was
impermissibly suggestive because only two of the six photographs featured light-skinned black
men. The trial court agreed, and suppressed the line-up identification. However, the court
allowed Morgan to identify her assailant during the trial itself. Despite Morgan’s identification,
the jury acquitted Kavanaugh of robbery in August 2011. In light of the trial judge’s decision to
suppress the photographic line-up evidence in Morgan’s case (along with any reference to the
Baker composite sketch from which it was derived), the prosecutor dismissed the charges against
Kavanaugh regarding the attack on Baker.1
Kavanaugh filed the present action in March 2012 against the Lexington Fayette Urban
County Government (“LFUCG”), Chief of Police Ronnie Bastin (“Bastin”), Adams, Persley, and
other unidentified defendants.2 Kavanaugh claims, inter alia, that the defendants violated state
law and 42 U.S.C. § 1983 when they maliciously prosecuted him for the crimes against Morgan
and Baker, and that the prosecution was based on the LFUCG’s policy or custom of inaction in
responding to officer dishonesty and failure to train or supervise its officers. The defendants

1

The prosecutor explained that, “[b]ecause [the judge], in my opinion, had improperly excluded Laura Baker’s
matter, as well as the sketch drawing and line-up from the prosecution involving Morgan Persley’s charges, and he
was the same judge who would be hearing Laura Baker’s matter, it was my decision to not go forward with
prosecuting Mr. Kavanaugh in the case involving Laura Baker’s charges.”
2

Among his claims, Kavanaugh sued Bastin, Adams, and Persley individually and in their official capacities, and
sued LFUCG for direct liability and on a theory of respondeat superior.

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moved for summary judgment. The district court granted summary judgment to the defendants
on Kavanaugh’s federal claims, declined supplemental jurisdiction on his state-law claims, and
dismissed the case. Kavanaugh appeals.
II.
A.
We review a district court grant of summary judgment de novo. Ramsey v. Penn Mut.
Life Ins. Co., 787 F.3d 813, 818 (6th Cir. 2015). Summary judgment is appropriate “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). The moving party bears the initial burden
of demonstrating that its opponent has not presented sufficient evidence to support its case.
Martin Cnty. Coal Corp. v. Universal Underwriters Ins. Co., 727 F.3d 589, 593 (6th Cir. 2013).
Once the moving party has satisfied this burden, then it is the nonmoving party’s burden “to set
forth specific facts showing a triable issue.” Id. (citing Mosholder v. Barnhardt, 679 F.3d 443,
448-49 (6th Cir. 2012)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Fed. R. Civ. P. 56(e). The nonmoving party must make this evidentiary
showing regarding each of the essential elements of its case. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986) (Summary judgment is properly entered “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial. In such a situation, there can be ‘no
genuine issue as to any material fact,’ since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.”) The
nonmoving party must present something more than mere speculation or allegations: there must
be probative evidence upon which a jury could reasonably find for the nonmovant. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.”); see also Superior Prod. P’ship v. Gordon Auto Body
Parts Co., 784 F.3d 311, 326 (6th Cir. 2015).
When considering a motion for summary judgment, we must consider all the evidence,
facts, and inferences in the light most favorable to the nonmoving party. Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010) (citing Matsushita, 475 U.S. at 587). In
short, we must determine “whether the evidence is so one-sided that the moving party must
prevail as a matter of law.” Martin, 727 F.3d at 593.
Though Kavanaugh initially asserted several causes of action against the defendants, he
only addressed two in his response to the motion for summary judgment: 1) his claim that Adams
and Persley maliciously prosecuted him in violation of state law and 42 U.S.C. § 1983; and 2) his
claim that LFUCG and Bastin violated 42 U.S.C. § 1983 by maintaining a policy or custom of
inaction in the face of dishonesty on the part of its officers and failing to train them. These were
the only claims addressed by the district court below, and they remain the only claims before this
Court on appeal.
B.
As a preliminary matter, the district court determined that Kavanaugh’s claim for
malicious prosecution under 42 U.S.C. § 1983 was effectively asserted only against Adams and
Persley, and only in their individual capacities.3 Kavanaugh does not contest this determination
on appeal.

3

The district court noted that Kavanaugh had conceded he was not alleging that Bastin maliciously prosecuted him.
The court also concluded that the malicious prosecution claim against LFUCG and the detectives in their official
capacities “fail[ed] because a government entity cannot be held liable under § 1983 for the constitutional torts of its
employees under a respondeat superior theory.” Kavanaugh failed to assert any facts to support a claim of liability

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To succeed on a claim under § 1983 for malicious prosecution, Kavanaugh must prove
four essential elements: 1) that a criminal prosecution was initiated against him, and that Adams
and Persley “made, influenced, or participated in the decision to prosecute[;]” 2) that there was a
lack of probable cause to support the prosecution; 3) that he suffered a “deprivation of liberty”
(as understood under this Court’s Fourth Amendment jurisprudence) as a consequence of the
legal proceeding; and 4) that the legal proceeding was resolved in Kavanaugh’s favor. Sykes v.
Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th
Cir. 2007) (regarding the first element) (internal quotation marks and modifications omitted);
Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007) (regarding the third element)). Thus, if
Kavanaugh fails to present more than “a scintilla of evidence” on any of these elements, Adams
and Persley must be granted summary judgment on the claim. Anderson, 477 U.S. at 252; see
also Celotex, 477 U.S. at 322; Peterson v. Johnson, 714 F.3d 905, 910 (6th Cir. 2013).
1.
Kavanaugh primarily argues that Adams and Persley lacked probable cause to pursue
him. “[P]robable cause to initiate a criminal prosecution exists where ‘facts and circumstances
are sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime
charged.’” Webb v. United States, 789 F.3d 647, 666 (6th Cir. 2015) (quoting MacDermid v.
Discover Fin. Servs., 342 F. App’x 138, 146 (6th Cir. 2009) (modification omitted)). We view
his arguments in light of “the totality of the circumstances at the time of [Kavanaugh’s] arrest
and through the time that the criminal proceeding against [him] commenced.” Sykes, 625 F.3d at
311.

on a policy-or-custom-of-malicious-prosecution theory. Thus, the only § 1983 claim for malicious prosecution that
remained was that asserted against Adams and Persley in their individual capacities.

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Kavanaugh must present evidence to overcome several legal presumptions that Adams
and Persley had probable cause. Law enforcement officers are entitled to rely on an eyewitness
identification of a suspect to establish the probable cause necessary for an arrest. United States
v. Lanier, 636 F.3d 228, 233 (6th Cir. 2011); see also Ahlers v. Schebil, 188 F.3d 365, 370 (6th
Cir. 1999). Where an arrest is made pursuant to a valid warrant, that document is also “normally
a complete defense to a federal constitutional claim” under §1983. Robertson v. Lucas, 753 F.3d
606, 618 (6th Cir. 2014) (quoting Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir.
2005) (internal citation omitted)). Similarly, as a general rule, “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).
An exception to these rules exists where officers procure an identification or warrant by
making “material false statements either knowingly or in reckless disregard for the truth.” Scott
v. Kelley, No. CIV.A. 2010-77 WOB, 2012 WL 479896, at *4 (E.D. Ky. Feb. 14, 2012) aff’d sub
nom. Scott v. Sanders, 482 F. App’x 996 (6th Cir. 2012); Ghaith v. Rauschenberger, 493 F.
App’x 731, 736 (6th Cir. 2012); see also Sykes, 625 F.3d at 312 (citing Gregory v. City of
Louisville, 444 F.3d 725, 758 (6th Cir. 2006)); Robertson, 753 F.3d at 616. For Kavanaugh to
survive summary judgment, therefore, he must make a showing that the eyewitness
identification, warrant, and indictment against him rested on false testimony or material false
statements made by Adams and Persley in pursuit of his arrest or prosecution.
a.
Kavanaugh makes several interrelated arguments that Adams and Persley lacked probable
cause. At the core of these arguments is his theory that Adams and Persley improperly steered
the investigation to ensure that the victims would identify Kavanaugh as their attacker; in short,

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that the detectives framed him. Kavanaugh identifies several particulars in which the victims’
descriptions of their assailant differ from the resulting investigation documents and insists that he
does not match these descriptions.

He claims that Adams and Persley made suggestive

statements to Morgan and Baker about Kavanaugh’s alleged prior acts to influence the women to
describe and identify him. Kavanaugh vaguely alleges that Adams either never conducted a
photographic line-up or used it improperly, and emphasizes that he “would have never been a
suspect in either crime if not for Adams’ involvement.” He argues that Adams lied to the grand
jury about the DNA test results in Morgan’s case. The variations on this theme are numerous,
but they share one of two recurring flaws: they are either unsupported by the record or they
misrepresent the record in context.
It is true that there were differences in the details regarding the identification of the
suspect in the attacks on Morgan and Baker, but these differences are minor in light of what is
consistent in the record. Kavanaugh states that he is 5’ 11” tall, is completely bald, is black with
light skin, and has brown eyes. He repeatedly claims that this contradicts the characteristics
described to police by Morgan and Baker. However, the record reveals that Morgan and Baker’s
descriptions were relatively consistent regarding their attacker’s skin tone, hair, build, and
height. Morgan described her assailant as a light-skinned black or Arabic man in her initial
description and later testimony. Baker initially described her assailant as “a very light-skinned
male black or bi-racial” man, which was consistent with her later testimony and with the
composite sketch she generated with Anderson the day after her attack.
Kavanaugh asserts that Morgan and Baker never identified the suspect as bald. Strictly
speaking, this is true: neither woman used the term “bald.” But both women consistently stated
that the suspect’s head was buzzed or close-shaven or that they saw no hair at all. Merriam-

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Webster’s dictionary states that a “bald” person is one who “[has] no hair or very
little hair on the

head.”

webster.com/dictionary/bald.

Merriam-Webster

Online,

available

at

http://www.merriam-

Morgan and Baker’s descriptions are consistent with this

definition.
Kavanaugh emphasizes that neither woman stated the suspect had brown eyes, yet this
characteristic nonetheless entered the record in the general investigative reports regarding both
incidents. By contrast, he notes that at one point, Baker stated that her attacker had green eyes or
contacts. He does not, however, make the necessary connections between these discrepancies
and his legal theory to survive summary judgment.
Aside from the fact that these variations are minor in context, many of them do not
logically connect to the defendants in question.

The initial description of the attacker in

Morgan’s case was taken by a responding officer, not Adams or Persley; it was this officer who
included “brown eyes” and “black hair” in the report. The initial case reports regarding Baker’s
encounter—including the one authored by Adams—do not identify the attacker’s eye or hair
color at all, and the general investigative report identifying her attacker as having brown eyes
and black hair was filled out by a responding officer, not Adams. But Kavanaugh concludes—
without legal support of any kind—that these discrepancies demonstrate that Adams and Persley
somehow tailored the investigation documents so that the witnesses would implicate Kavanaugh.
His assertion does not establish grounds to escape summary judgment.
b.
Nor does Kavanaugh make a showing that Adams and Persley influenced Morgan and
Baker to identify him through statements about his alleged past acts. In his brief, Kavanaugh
explains this argument thus:

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Immediately after the attack, Ms. Baker stated that the
following occurred:
“And then more cops came on bicycles and from the police
station across the street. They took me over there and took my
statement. A few minutes later they went out looking for him.
Well, the description I gave of him was someone they were already
looking for, I guess. He was wanted for a few other rapes and an
attack on a pregnant woman and an attack on a police officer’s
daughter or some, something to that affect. They said I couldn't
have gave a better description of him.”
...
Was Ms. Baker just making these comments, which are
absolutely unduly suggestive and improper, up out of thin air?
...
There is absolutely no doubt that, well prior to her
deposition, Ms. Baker was told by the investigating officers that
they knew who did this to her, and that it was someone they were
already looking for. This is absolutely impossible unless Adams
and Persley planned on pinning both of these alleged crimes on
[Kavanaugh] before anyone ever allegedly identified him[.]
There are two key problems with this argument. First, the quotation above comes from a
transcript of an unsworn statement Baker made to public defender investigator Paula Hensinger
(“Hensinger”) in 2011. The district court declined to consider that transcript because, as this
Court plainly directed in Dole v. Elliott Travel & Tours, Inc., 942 F.3d 962 (6th Cir. 1991), “a
court may not consider unsworn statements when ruling on a motion for summary judgment.”
942 F.3d at 968-69. On appeal, Kavanaugh avers that Baker stated in her sworn deposition—two
years after her conversation with Hensinger—that Baker had been truthful during the interview,
but this assurance is not sufficient for the court to properly consider the content of the transcript.
While it is true that there exists a statutory exception to the rule in Dole, that exception does not
apply to Baker’s interview with Hensinger.4 The district court properly excluded the unsworn

4

“[A] statutory exception to this rule exists which permits an unsworn declaration to substitute for a conventional
affidavit if the statement contained in the declaration is made under penalty of perjury, certified as true and correct,
dated, and signed.” Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998) (citing 28 U.S.C. § 1746). The
statutory requirements to substitute an affidavit or otherwise properly sworn statement with an unsworn statement,
however, are detailed and clear: the unsworn “declaration, certificate, verification, or statement” must be in writing,

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statement, and without it, Kavanaugh’s assertions that Adams and Persley made suggestive
statements about him to Morgan and Baker are unsupported by the record.
Second, even taking the above statement into account, its contents are contradicted by
Baker’s deposition testimony, wherein she explains in more detail who told her what and when.
Baker testified that a responding officer told her “it could be a possibility” that the suspect she
had described at the scene was “somebody that they were looking for.” Baker also stated that
Persley told her the suspect was wanted for rape, but Baker clarified that Persley made that
statement months after Baker had created the composite sketch and identified Kavanaugh in the
resulting photographic line-up:
Q:
And then you go on in your statement to say he was wanted
for a few other rapes. I’m going to stop there; who told you that?
A:
. . . Detective Persley told me that he was wanted, or that he
had recently had just been arrested for attacking his daughter or
something to that knowledge.
Q:
Did he tell you this before or after you picked his
picture out?
A:
Oh, this was six, seven months out. . . . He was just
telling me, I guess, calling me to keep me post[ed]—like, bring me
up to date on the situation with the case[.]
Kavanaugh makes a similar argument regarding Morgan’s testimony, and it fails for
similar reasons. In his brief, Kavanaugh asserts that “Morgan testified that Adams had told her
that [he] had raped a girl and gotten away with it, or something similar to that.” The actual text
of Morgan’s statement is as follows:
Q:
Did Ms. Adams ever tell you at any time that [Kavanaugh]
had raped a girl in the past and gotten away with it or words like
that?

signed, dated, and identified as true under penalty of perjury. 28 U.S.C. § 1746. Baker’s deposition testimony in
2013 that she had been truthful during her interview with Hensinger does not meet these exacting requirements.

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A:

Maybe something similar to that.

...
Q:
And what about your dad; did your dad ever tell you that
your attacker had raped somebody in the past?
A:
I believe that it was more so that he’d been charged before.
I don’t believe either of them have ever made a statement that
he has done something.
Kavanaugh’s alleged evidence that the defendants improperly led Morgan or Baker to identify
him does not actually support his claim that Adams and Persley made such statements or that
they made such statements prior to the victims’ own identification of the suspect.
c.
Kavanaugh also asserts that the only reason he was ever connected with the alleged
crimes was that Adams purposefully did so. That Adams apparently recognized Kavanaugh
from the Baker composite is not, in itself, support for his claim of malicious prosecution. This is
because on its face, it suggests no impropriety: a detective saw a victim’s composite sketch of
the suspect and thought it resembled a suspect encountered in a prior investigation.

But

Kavanaugh also argued before the district court that no photographic line-up had taken place
before he was arrested; thus, he averred, Adams had lied about the victims’ identification of
Kavanaugh to swear out a warrant. On appeal, this claim is jumbled; at any rate, Kavanaugh
seeks to support it with the same evidence presented to—and rejected by—the district court.
To support his claim that Adams connected Kavanaugh to the assaults without the benefit
of victim confirmation, Kavanaugh first presents his own deposition testimony. Kavanaugh
states that, at the first interview after his arrest, Adams said that “she did not use a lineup” and
that “she had shown” the victims only “a single photo” of him.

However, Kavanaugh’s

testimony establishes only that he was identified from a single photo rather than a full photo

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array. While this identification was far from ideal, we must view the use of such improper
photographic evidence in light of the totality of the circumstances. Compare Simmons v. United
States, 390 U.S. 377, 383 (1968) and Milteer v. Baker, 121 F.3d 708 at *4 (6th Cir. 1997) with
Manson v. Brathwaite, 432 U.S. 98, 116 (1977) and Snyder v. United States, 590 F. App’x 505,
512 (6th Cir. 2014). Here, the record clearly establishes that both victims repeatedly identified
Kavanaugh as their assailant. Even taking Kavanaugh’s testimony as true, he does not show that
Adams’ alleged conduct resulted in his arrest or prosecution without probable cause.
In the same vein, Kavanaugh presents an affidavit from the defense attorney who
accompanied him to the interview, David Zorin (“Zorin”). Zorin states:
During the interview, I questioned Detective Adams as to how she
identified Pleas Kavanaugh as the suspect. She stated it was
simply based on a single computer generated identification sketch.
I specifically asked her “is that all you have” and she responded
“yes, that’s how we got him” or words to that effect. Detective
Adams never mentioned anything about a “six pack” photo array
or any other form of identification.
Again, Zorin’s statement indicates that Adams identified Kavanaugh solely from the
composite sketch, and that this was the sole basis for identifying him with the case. However,
the district court notes that “Adams’s statement simply doesn’t address how the victims
identified Kavanaugh as the perpetrator.” Even drawing all inferences from this evidence in
Kavanaugh’s favor and assuming arguendo that “is that all you have?” followed by “yes”
suggests that no line-up existed before Kavanaugh was arrested, this Court must still place that
evidence in the context of the record and the legal claim at hand.

That record includes

Kavanaugh’s own admission that Baker’s composite sketch resembled him, as well as assertions
from Morgan and Baker that they identified him from a photographic line-up. Zorin’s statement
is a classic example of Anderson’s “scintilla of evidence”: even if the Court assumes

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Kavanaugh’s interpretation is correct, in context, Zorin’s statement is not probative evidence “on
which the jury could reasonably find for” Kavanaugh. Anderson, 477 U.S. at 252.
d.
Kavanaugh asserts that Adams mislead the grand jury when she testified regarding the
results of the DNA tests conducted on blood found at the scene of Morgan’s attack. Adams
allegedly told the grand jury that the results of the DNA tests were unavailable. However, the
actual lab report indicates that testing was completed in March 2010, before Adams testified to
the grand jury in May 2010. When questioned on this point, Adams responded she had not
received the results of the DNA tests prior to testifying. Kavanaugh insists that Adams had the
results, though he presents no evidence that this was the case. Even assuming Adams had the
results, Adams “has absolute immunity from any § 1983 claim based on [her grand jury]
testimony.” Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012) (“[A] grand jury witness has
absolute immunity from any § 1983 claim based on the witness’ testimony. . . . [T]his rule may
not be circumvented by claiming that a grand jury witness conspired to present false testimony or
by using evidence of the witness’ testimony to support any other § 1983 claim concerning the
initiation or maintenance of a prosecution.”) Moreover, the lab results showed only that the
blood collected from the scene was Morgan’s. Thus, even if Adams outright lied about not
having the results, those results did nothing to further or hinder the case against Kavanaugh,
suggesting that the district court was correct to consider debate over the lab report a non-material
issue of fact.
2.
There is no dispute that Kavanaugh was deprived of his liberty for the prosecution of the
attack against Morgan and that the Morgan case was resolved in his favor. See Webb, 789 F.3d

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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.
at 659. The parties disagree, however, regarding whether the prosecutor’s decision to dismiss
the charges against Kavanaugh regarding the attack on Baker constitutes resolving the legal
proceedings in his favor for the purposes of his malicious prosecution claim. As Kavanaugh has
failed to present sufficient evidence that the defendants lacked probable cause for his arrest and
prosecution, we need not wade into this issue.
3.
The inquiry regarding whether Adams and Persley “made, influenced, or participated in
the decision to prosecute” Kavanaugh is dependent on whether they knew or should have known
that there was no probable cause to do so. Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir.
2015). Put another way, Kavanaugh must show that Adams and Persley “(1) stated a deliberate
falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted
information was material to the finding of probable cause.” Gregory, 444 F.3d at 758. As
discussed in the probable cause analysis supra, however, Kavanaugh has not presented evidence
from which a jury could reasonably conclude that Adams and Persley deliberately or recklessly
disregarded the truth in their investigation.
In all, Kavanaugh “fails to make a showing sufficient to establish the existence of an
element essential to [his] case” regarding one or more key parts of his claim. Celotex, 477 U.S.
at 322-23. The district court did not err in awarding the defendants summary judgment on this
basis.
C.
Kavanaugh also claims that LFUCG and Bastin violated § 1983 by maintaining a policy
or custom of inaction when faced with dishonest conduct on the part of its law enforcement
officers (namely, Adams and Persley), and by failing to train them appropriately to avoid the

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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.
same. To state a claim for liability under § 1983, Kavanaugh must demonstrate 1) a deprivation
of a constitutional right that was 2) caused by a person acting under color of law. Westmoreland
v. Sutherland, 662 F.3d 714, 718 (6th Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988).
Local governments may be considered “persons” for the purposes of such a claim. Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). The only constitutional
violation Kavanaugh has alleged is a violation of his Fourth Amendment rights arising out of his
malicious prosecution. As Kavanaugh’s claim for malicious prosecution was properly dismissed
on summary judgment, he fails on his other § 1983 claims. Robertson, 753 F.3d at 622 (“There
can be no liability under Monell without an underlying constitutional violation.”).
III.
Based on the foregoing analysis, we AFFIRM the judgment of the district court.

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