Maurice Snow v. Erik Nelson, et al

Filing

OPINION filed : The district court's grant of summary judgment is AFFIRMED. Decision not for publication. Julia Smith Gibbons (AUTHORING) and David W. McKeague, Circuit Judges; S. Thomas Anderson, U.S. District Judge for the Western District of Tennessee, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0807n.06
No. 15-3320

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MAURICE SNOW,

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Plaintiff-Appellant,
v.
ERIK NELSON et al.,
Defendants-Appellees.

BEFORE:

FILED
Dec 10, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
SOUTHERN DISTRICT OF
OHIO

GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge*

JULIA SMITH GIBBONS, Circuit Judge. Maurice Snow appeals the district court’s
order granting summary judgment in favor of defendants Detective Erik Nelson and Officer
Mark Rankin, on his 42 U.S.C. § 1983 claims. Snow alleges that defendants illegally arrested
him and participated in his prosecution in violation of his Fourth and Fourteenth Amendment
rights, based on Nelson’s mistaken belief that Snow appeared in a surveillance video of a
controlled drug purchase. For the reasons set forth in this opinion, we affirm the district court.
I.
In the summer of 2013, the Norwood, Ohio Police Department’s Drug Task Force began
an investigation into a man known as “Emmitt,” who was later identified as Maurice Snow.
Defendants Nelson and Rankin both participated in this investigation. The investigation began
when Nelson received a tip from a confidential informant. The informant told Nelson that he had
*The Honorable S. Thomas Anderson, United States District Judge for the Western District of
Tennessee, sitting by designation.

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previously lived with two people he knew only as Emmitt and Emmitt’s girl, at 5613 Rolston
Avenue in Norwood, Ohio, and that Emmitt was distributing illegal narcotics. He also told
Nelson that he had served as an informant in other investigations with the Cincinnati Police
Department and the Ohio Liquor Control Agency. Before investigating further, Nelson contacted
Detective Howard Fox of the Cincinnati Police Department to discuss the informant’s credibility.
Fox told Nelson that the informant was reliable and recommended that Nelson use him.
On July 15, 2013, the Norwood Drug Task Force executed the first of four controlled
drug buys from Emmitt. This purchase was videotaped from two separate locations, and it was
recorded via a wire worn by the informant who purchased the drugs. The audio and video
recordings of the July 15 controlled purchase reveal the following: The informant places a phone
call to Emmitt and arranges to purchase crack cocaine. Before anyone arrives at the informant’s
location, he speaks into the wire. The informant says that “the subject is on the way . . . he is on
the way to come to see me, and you will see him.” Audio-Video File 89-13A, ECF No. 21. The
informant is first approached by a thin, shirtless African-American man wearing white shorts. As
the shirtless man approaches, the informant says “okay here he comes. This deal’s gonna go
down in about thirty seconds.” Audio-Video File 89-13C, ECF No. 21. A few moments after the
shirtless man arrives, another heavier-set African American man wearing a green shirt and a
green plaid hat approaches. The man in the green shirt exchanges the money and crack cocaine
with the informant.
The informant was debriefed shortly after the controlled buy. During the debrief, the
informant told officers that “the little skinny guy” came over and spoke to him and then the
heavier man in the green shirt arrived. Audio File 7/15/13, ECF No. 21. The informant identified
the man in the green shirt as “the dope dealer,” but he did not identify either person in the video

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as Emmitt. Id. Following the debrief, Nelson prepared an Arrest Report and Trial Preparation
Report noting that Emmitt personally appeared in the videos taken that day. In his deposition,
Nelson testified that after the July 15 controlled buy and debrief he mistakenly assumed that the
man in the green shirt was Emmitt. Likewise, Rankin testified that Nelson was at first mistaken
that Emmitt was the man in the green shirt who appeared in the July 15, 2013 video, and that
only later did they discover that Emmitt was using runners to conduct the drug purchases.
The day after the first controlled drug buy, Nelson obtained records showing that Maurice
Snow and Tanisha Sims paid the utility bills at 5613 Rolston Avenue, the address where the
informant said he previously lived with Emmitt and Emmitt’s girlfriend. Nelson also obtained
Ohio Bureau of Motor Vehicles (“BMV”) photos of Snow and Sims, which he showed to the
informant. The informant immediately identified Snow as Emmitt and Sims as Emmitt’s
girlfriend. He confirmed that these were the two people he lived with at 5613 Rolston Avenue
and that Snow was the person he knew to be selling narcotics in Norwood under the name
Emmitt. In his deposition, Snow confirmed that he lived at 5613 Rolston Avenue with his
girlfriend, Tanisha Sims, from February 2013 through August 2013 and also that the BMV photo
shown to the informant on July 16 was a photo of him.
The Drug Task Force subsequently used the informant to purchase drugs from
Emmitt/Snow three more times, on July 16, July 30, and August 13. All four controlled buys
started with a phone call from the informant to Emmitt, and all four resulted in actual drug
purchases. Several different drug couriers are seen in the July 16, July 30, and August 13
controlled buys. During the August 13 purchase, the informant indicated that he saw Snow run
down Rolston Avenue from his house to meet a drug courier outside of the Dale Road Drive
Thru. The informant witnessed the drug courier hand Snow the $50.00 he had just used to

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purchase the crack-cocaine, and he saw Snow walk back to his house at 5613 Rolston. Because
of the location of the video cameras, none of this was captured on film.
On August 15, 2013, Nelson sent a memorandum to the Hamilton County Prosecutor’s
Office requesting that a grand jury consider indicting Snow on four counts of trafficking in
narcotics. On August 21, 2013, Nelson was subpoenaed to testify before the grand jury, and on
September 5, 2013, a grand jury indicted Snow on all four counts. Snow was subsequently
arrested on October 18, 2013 and detained in the Hamilton County Justice Center.
Erik Laursen, Snow’s counsel, served discovery requests on the State on November 12,
2013. The State responded on November 18, 2013 that police reports would be “[p]rovided with
discovery as available” and that they would make “Surveillance Audio or Video” available for
inspection. Laursen Aff. 503–04, ECF No. 32–1.
On December 9, 2013, Laursen appeared in court to discuss a “plea or trial setting.” Id. at
497. Before this court session, Nelson showed Laursen the video of the July 15, 2013 controlled
buy. At some point, Laursen asked Nelson to describe what was happening, and Nelson pointed
to a man in the video and said, “There is your guy.” Id. Nelson clarified that he thought Snow
was the man in the green shirt who appeared in the July 15, 2013 video. At that point, Lieutenant
Harry Schlie arrived. Laursen informed Schlie and Nelson that the man in the video was not
Snow. Schlie and Laursen then went to the holding area where Snow was, and Schlie confirmed
that Snow was not the man in the video. Laursen returned to the courtroom, where he moved for
and was granted a recognizance bond. The State dismissed its case shortly thereafter.
Snow subsequently filed a complaint pursuant to 42 U.S.C. § 1983, alleging deprivations
of his rights under the Fourth and Fourteenth Amendments. The district court granted
defendants-appellees’ motion for summary judgment, and this timely appeal followed.

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II.
We review a district court’s decision to grant summary judgment de novo. Miller v.
Sanilac Cty., 606 F.3d 240, 246 (6th Cir. 2010). Summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Moldowan v. City of Warren, 578 F.3d 351, 373–74 (6th Cir. 2009) (quoting Fed. R. Civ. P.
56(c)). We view all facts and inferences in the light most favorable to the nonmoving party and
uphold a grant of summary judgment “only where the record as a whole could not lead a rational
trier of fact to find for the non-moving party.” Miller, 606 F.3d at 247.
“At the summary judgment stage, the moving party bears the initial burden of identifying
those parts of the record that demonstrate the absence of any genuine issue of material fact.”
Moldowan, 578 F.3d at 374 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the
moving party seeks summary judgment on an issue for which it does not bear the burden of proof
at trial, however, the moving party may meet its burden by showing “‘that there is an absence of
evidence to support the nonmoving party’s case.’” Id. (quoting Celotex, 477 U.S. at 325). When
the moving party has carried this burden, the nonmoving party may not rest upon its allegations
and denials, but rather must set forth specific facts showing that there is a genuine issue for trial.
Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
III.
A.

Fourteenth Amendment Brady Claim

Snow first claims that Nelson and Rankin violated the Fourteenth Amendment by failing
to disclose to prosecutors and the grand jury that on July 15, 2013, the confidential informant
identified a man who was not Snow as “the dope dealer,” but on the following day identified

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Snow as “Emmitt,” the suspected drug dealer and target of the investigation. While there is some
argument about whether Snow raises his Brady claim for the first time on appeal, assuming that
this claim is properly before us, it lacks merit because the alleged exculpatory evidence was
disclosed, and Snow never stood trial.
Defendants first argue that Snow’s Brady claim is not properly before this court because
it does not appear on the face of his complaint. As a general rule, this court does not consider
new arguments presented for the first time on appeal. See, e.g., United States v. Ellison, 462 F.3d
557, 560 (6th Cir. 2006). Moreover, we have held that “[t]he appropriate method for adding new
factual allegations to a complaint is not via an appellate brief, but by filing an amended
complaint.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006). Defendants
are correct that Snow’s complaint does not allege a Brady violation. It does allege a deprivation
of his rights under the Fourth and Fourteenth Amendments, but it only states a single cause of
action, which nearly mirrors the elements of a Fourth Amendment malicious prosecution claim.
Notably absent is any mention of Brady or the elements of a Brady claim. However, Snow’s
Brady and malicious prosecution claims are premised on the same underlying facts. See Gregory
v. City of Louisville, 444 F.3d 725, 750–51 (6th Cir. 2006) (noting that Brady and malicious
prosecution claims can share a factual premise and that plaintiffs are free to pursue claims under
both theories). The factual premise of Snow’s Brady claim appears on the face of his complaint
and, thus, Snow’s appeal does not seek to augment the factual allegations of his complaint. What
is more, Snow’s Brady claim was raised in his Response in Opposition to Defendants’ Motion
for Summary Judgment, and it was briefed by both parties before the district court. We assume,
therefore, that Snow’s Brady claim is properly before us. However, we find the merits of that
claim lacking.

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When exculpatory material is disclosed, even belatedly, there is generally no Brady
violation. See United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986), cert. denied, 480 U.S.
922 (1987) (“In general, the principles announced in Brady do not apply to a tardy disclosure of
exculpatory information, but to a complete failure to disclose.”). If a criminal defendant can
show that he was materially prejudiced by a delay in disclosure, it may be grounds for a Brady
claim. Id. However, when exculpatory information is disclosed “‘in time for use at trial’” there is
no constitutional violation. United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004) (quoting
United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988)). This follows logically from our
understanding that material prejudice occurs only when it is likely that the disclosure of the
evidence would have altered the result of the proceeding. See United States v. Garner, 507 F.3d
399, 405 (6th Cir. 2007). Here, the information was disclosed before a trial date was set. And
immediately after Snow’s attorney first learned of the alleged misidentification, his client was
released, and the charges were dropped.
Despite never standing trial and ultimately being released, Snow maintains that he has
stated a proper Brady claim because the alleged failure to disclose resulted in his detention for
fifty-two days. This argument, however, misperceives the harm Brady claims are designed to
redress. Brady’s “ultimate concern [is] ensuring that criminal defendants receive a fundamentally
fair trial.” Moldowan, 578 F.3d at 378 (internal quotation marks omitted). In light of this
concern, we have held that liability for a Brady violation only exists when evidence sufficient to
“‘put the whole case in such a different light as to undermine confidence in the verdict’” is
improperly withheld. Johnson v. Mitchell, 585 F.3d 923, 933 (6th Cir. 2009) (quoting Kyles v.
Whitley, 514 U.S. 419, 435 (1995)) (emphasis added). Furthermore, a Brady claim requires “a

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showing that there is a ‘reasonable probability’ that had the evidence been timely disclosed to the
defense the outcome would have been different.” Garner, 507 F.3d at 405 (emphasis added).
Here, the State did not secure a criminal conviction by improperly withholding
exculpatory evidence. On the contrary, the record is clear that the State was complying with
discovery requests. Moreover, there is no question that before a plea was discussed or trial dates
set, Snow’s attorney learned of the allegedly exculpatory information. Perhaps Snow would have
been released earlier had the alleged misidentification come to light sooner, but he can have no
complaints about the ultimate outcome of his case. The fifty-two days Snow spent in jail
awaiting a plea or a trial is simply not the type of deprivation Brady claims are intended to
remedy.
Even were we to recognize a Brady claim in this context, defendants would be entitled to
qualified immunity. As we held in Robertson v. Lucas, our precedent does not support any
clearly established right of criminal defendants to receive exculpatory Brady material before plea
bargaining. 753 F.3d 606, 621 (6th Cir. 2014). There, the court found that while every reasonable
officer “would know that they were under an obligation to present Brady material to the
prosecutors in time for its effective use at trial,” the officers were under “no clearly established
obligation to disclose exculpatory Brady material to the prosecutors in time to be put to effective
use in plea bargaining.” Id. at 621–22 (internal quotation marks and citations omitted.) Here,
Snow’s attorney was aware of the alleged misidentification prior to any plea bargaining. Thus,
defendants are well within the ambit of qualified immunity.
B.

Fourth Amendment Malicious Prosecution Claim

Snow also claims that he was subject to malicious prosecution in violation of the Fourth
Amendment. To successfully prove a § 1983 malicious prosecution claim premised on a Fourth

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Amendment violation, Snow must show the following: (1) a criminal prosecution was initiated
against him and that defendants made, influenced, or participated in the decision to prosecute;
(2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal
proceeding, he suffered a deprivation of liberty apart from the initial seizure; (4) and the criminal
proceeding was resolved in his favor. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010).
Because Snow’s malicious prosecution claim is clearly and easily resolved by addressing the
second prong of his claim, it is unnecessary to analyze the remaining elements.1
It is well-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) (citing Higgason v. Stephens, 288 F.3d 868, 877 (6th
Cir. 2002)). However, we recognize an exception to this general rule when defendants
deliberately or recklessly present false testimony to a grand jury in order to obtain an indictment.
See Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015); Robertson v. Lucas, 753 F.3d 606,
616 (6th Cir. 2014). Snow’s burden at summary judgment, therefore, was to adduce evidence
that defendants knowingly or recklessly presented false testimony to the grand jury. This he has
not done.
The record is unclear as to which officer testified before the grand jury, and because the
record does not contain a transcript of the grand jury proceedings, there is no way to answer this
question with certainty. In his deposition, Nelson stated that he, Officer Rankin, and Officer
Schlie took turns testifying before grand juries, and that he could not remember who testified in
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It should be said, however, that in this case the first prong inquiry largely mirrors the second prong
analysis. Snow premises appellees’ liability on their testimony before the grand jury. Therefore, to
establish their involvement in commencing a criminal proceeding Snow was required “to present
evidence that [the officers] (1) stated a deliberate falsehood or showed reckless disregard for the truth [at
the hearing] and (2) that the allegedly false or omitted information was material to the [grand jury’s]
finding of probable cause.” Sykes, 625 F.3d at 312 (internal quotation marks and citations omitted).
Because the grand jury transcript is not in the record, Snow cannot make the required showing.

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Snow’s case. The district court presumed that because Nelson was the one subpoenaed to appear
before the grand jury, he was the one who testified. But even assuming Nelson testified, without
a transcript of the proceedings, we cannot discern the content of the presumed testimony, much
less whether it was deliberately or recklessly false. 2
Snow argues that a reasonable jury could infer that Nelson’s testimony before the grand
jury implicated Snow and failed to disclose the informant’s alleged misidentification of the target
of the investigation. While we must draw all reasonable inferences in the light most favorable to
the nonmoving party, there must be some evidentiary basis from which to infer. See Webb, 789
F.3d at 661 (“To make out a genuine issue of material fact, [a] plaintiff must present significant
probative evidence tending to support [his] version of the facts, evidence on which a reasonable
jury could return a verdict for [him].” (internal quotation marks and citation omitted)). Without a
transcript of the grand jury proceedings, there is no evidence that defendant-appellees testified
falsely or recklessly and, therefore, no evidence that undermines the presumption of probable
cause created by the indictment. See Young v. Owens, 577 F. App’x. 410, 416–17 (6th Cir. 2014)
(affirming grant of summary judgment on malicious prosecution claim where plaintiffs alleged
officers testified falsely before the grand jury but where grand jury transcript was not part of the
record). Snow has failed his burden to “set forth specific facts showing that there is a genuine
issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986).
Even were we inclined to make the inferential leaps Snow asks us to, his malicious
prosecution claim still fails because probable cause existed to arrest him, notwithstanding the
allegedly false testimony. To determine whether there was probable cause to indict Snow, this
court must analyze the totality of the circumstances to see whether facts and circumstances were
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At the district court, Snow did not attempt to show by affidavit or declaration that he was unable to obtain
a copy of the grand jury transcript, nor does he argue anything of the kind on appeal. See Fed. R. Civ. P. 56(d)(1)–
(3).

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sufficient to lead a reasonable person to believe that Snow committed the particular offenses with
which he was charged. See McKinley v. City of Mansfield, 404 F.3d 418, 445 (6th Cir. 2005).
The first step in this analysis is to “set aside the [false] statements and include the information
omitted” to determine whether the indictment is still supported by probable cause. Sykes, 625
F.3d at 305. Thus, we must hypothesize a grand jury that did not think Snow appeared in any of
the videos and was aware of the informant’s alleged misidentification. Even in light of these
assumptions, there are other relevant facts in the record to support a finding of probable cause.
The confidential informant was known to be reliable, and he had firsthand knowledge of
Snow. See Webb, 789 F.3d at 663 (“Information from a confidential informant who has been
established as reliable can serve as the basis for probable cause.”) (citing Illinois v. Gates,
462 U.S. 213, 232 (1983)). Throughout the investigation, the only person the informant ever
positively identified as Emmitt was Snow, and he also immediately identified Tanisha Sims,
Snow’s girlfriend at the time, as Emmitt’s girlfriend. Moreover, the police independently
corroborated that Snow and his girlfriend lived at 5613 Rolston Avenue. See Gates, 462 U.S. at
241 (“Our decisions applying the totality-of-the-circumstances analysis . . . have consistently
recognized the value of corroboration of details of an informant’s tip by independent police
work.”). Even if we make the strained assumption that the informant’s identification of another
individual as “the dope dealer” has some exculpatory value, based on the other evidence of the
informant’s veracity, the alleged misidentification does not approach conclusive proof that the
informant was unreliable. See id. at 232.
Additionally, other circumstantial evidence provides support for probable cause in this
case. For example, the informant placed four calls to the person he knew as Emmitt to arrange to
purchase crack-cocaine and all four calls resulted in drug purchases. Although Snow does not

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appear in the July 15 video, use of a runner is consistent with Emmitt’s practices, as shown by
the July 16, July 30, and August 13 drug purchases. Finally, during the August 13 controlled
drug buy, the informant, who had personal knowledge of Snow, witnessed Snow take money
from a drug courier and walk back to his house at 5613 Rolston Avenue.
Snow maintains that his release almost immediately following the discovery of Nelson’s
mistake is conclusive evidence that no probable cause existed to arrest and prosecute him.
However, “[a]n arrest grounded in probable cause does not become invalid merely because the
State chooses not to prosecute the individual.” Williams v. Cambridge Bd. Educ., 370 F.3d 630,
638 (6th Cir. 2004). Based on the totality of the circumstances and ignoring the allegedly false
testimony and material omissions, there was probable cause underlying the grand jury’s
indictment, and therefore, Snow cannot show that he was subjected to malicious prosecution in
violation of his Fourth Amendment rights.
IV.
For the foregoing reasons, we affirm the district court’s grant of summary judgment for
defendants.

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