King v. Harwood et al

Filing 115

MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO MAGISTRATE JUDGES REPORT AND RECOMMENDATION signed by Judge Claria Horn Boom. The Motion to Dismiss filed by Defendant Todd Harwood 76 is DENIED. The Report and Recommendation 109 is ADOPTED as the o pinion of the Court. The Defendant's Objection 111 is OVERRULED. Defendant's Motion for Oral Argument on his pending Motion for Summary Judgment and Harwood's Objection to the Report and Recommendation 112 is DENIED IN PART, as to the request for oral argument on the objection. (ALS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
SUSAN JEAN KING,

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Plaintiff,
v.
TODD HARWOOD,
Defendant.

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Civil Action No. 3:15-CV-762-CHB
MEMORANDUM OPINION AND
ORDER ON OBJECTIONS TO
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION

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This matter is before the Court on Defendant Todd Harwood’s Objections to United States
Magistrate Judge Colin H. Lindsay’s Report and Recommendation. [R. 109] For the reasons laid
out below, the Court will adopt the Magistrate Judge’s Report and Recommendation and overrule
Defendant’s objections.
I.

Background Facts

Magistrate Judge Lindsay’s Report and Recommendation ably sets out the full factual
background of this case. Briefly, the issue at hand centers around the cause of two bullet holes
discovered by Kentucky State Police (“KSP”) in 2006 during an investigation led by Defendant
Todd Harwood (“Harwood”), then a KSP detective, and the relevance of those bullet holes to
Plaintiff Susan King’s (“King)” claims against Harwood.
Defendant Harwood was investigating Plaintiff King for the murder of Kyle Breeden.
Breeden was found dead in the Kentucky River on November 5, 1998. [R. 109 p. 1] He died from
two non-exiting .22 caliber magnum gunshot wounds to the head. [Id.] During the initial 1999
investigation KSP attempted, but was unable, to get a search warrant for King’s home based on

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information that there were bullet holes in her floor. [R. 1 p 7; R. 79 p. 2; R. 109 pp. 1–2] A few
weeks later, King allowed Sergeant Carey Duncan to see her floor, at which time Duncan
observed two bullet holes. [R. 109 p. 2] King explained to Duncan that she had fired them to
scare away another individual who had been making sexual advances at her. [Id.] Sergeant
Duncan stated in his deposition that he did not remember if he saw any bullet holes other than the
two he was shown, but hoped that he would have included such an important finding in his report.
[Id.] However, Sergeant Duncan also testified that there may have been a rug on the floor at the
time, and he did not conduct a full search of the floor since he was there by King’s invitation, and
she did not let him get on his hands and knees to look at the entirety of the floor. [Id. pp. 2–3]
Seven years later, in May of 2006, Detective Harwood was assigned the now-cold case.
[Id. p. 3] After Harwood obtained search warrants for King’s home (more on this later), KSP
discovered there were in fact four bullet holes in King’s floor, not just the two Sergeant Duncan
had seen in 1999. [Id.] KSP recovered a .22 caliber bullet from the floor, but it did not match
bullets found in Breeden’s head. [Id.] The bullet in Breeden’s skull was a .22 caliber magnum
bullet with a copper jacket, while the bullet found in King’s kitchen floor was a .22 caliber bullet
with a copper wash. [Id.] One of the bullet holes tested positive for male DNA. [Id.] The KSP
forensic lab also conducted a presumptive blood test which tested positive, although it could not
be matched to Breeden. [Id.] However, it is unknown whether the bullet hole from which blood
and DNA was recovered was from one of the two bullet holes that Sergeant Duncan saw in 1999.
[Id.]
In 2007, King was indicted for murdering Breeden and tampering with physical evidence.
[Id.] After entering an Alford plea to manslaughter and tampering with physical evidence, King

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was incarcerated until she was ultimately exonerated in 2014, when new evidence showed that
another person had confessed to Breeden’s murder. [R. 1 p. 19; R. 109 p. 4]
King filed a Verified Complaint against numerous defendants, including Harwood, under
42 U.S.C. § 1983 and other state law causes of action. [R. 109 p. 4] The district court granted a
hybrid motion to dismiss/motion for summary judgment, which was partially reversed by the Sixth
Circuit. King’s remaining claims are those against Harwood for malicious prosecution under §
1983, and her state law claims against Harwood for intentional, reckless, or negligent infliction of
emotional distress, civil conspiracy, and negligence/gross negligence/recklessness. See King v.
Harwood, 852 F.3d 568, 591–92 (6th Cir. 2017). King has proceeded on those claims. [R. 109 p.
4]
On May 30, 2018, the parties sat for King’s deposition. [Id.] The questions turned to the
two additional bullet holes KSP discovered in King’s floor during Harwood’s 2006 investigation.
[Id.] Harwood’s counsel asked King, “[h]ow did the bullet holes that were discovered in the later
investigation get there?” [Id.] King refused to answer, stating it “had nothing to do with this
case,” and her counsel objected based on relevance. [Id. pp. 4–5] The parties discussed the matter
at length, but agreed to continue the deposition without King answering the question. [Id. p. 5]
The parties then had a telephonic status conference with Magistrate Judge Lindsay to
discuss the dispute. [Id.] The Magistrate Judge gave what he describes as “preliminary guidance”
that he believed the cause was relevant but did not foreclose King from filing for a protective
order. [Id.] After discussing the matter with counsel, King decided not to file a motion. Instead,
the parties filed a joint status report on October 26, 2018, agreeing that King would sit for a
second deposition [Id.] On November 21, 2018, however, the day before King’s scheduled
deposition, plans changed. [Id.] King’s counsel contacted Harwood’s counsel stating that King

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would assert her Fifth Amendment privilege during the deposition in response to questions about
the cause of the two additional bullet holes first discovered in 2006. [Id.] King’s counsel indicated
that King had planned on sitting for the deposition until that day, when counsel “learned additional
facts that were not previously known, which changed his determination.” [Id. p. 6] Harwood
choose to have the deposition anyway, and King asserted her Fifth Amendment privilege in
response to questions about the cause of the two additional bullet holes. [Id.] In a second
telephonic status conference with Magistrate Judge Lindsay, Defendant Harwood sought, and was
granted, leave to file the instant motion.
II.

Standard of Review

Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service
to register any objections to the Magistrate Judge’s Report and Recommendation or else waive his
rights to appeal. Non-dispositive matters are reviewed under a “limited” standard of review: the
district court “must . . . modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993); Fed. R. Civ. P.
72(a). Dispositive matters, however, are reviewed de novo if properly objected to. Fed. R. Civ. P.
72(b)(3). In order to receive de novo review by this Court, any objection to the recommended
disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific
objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s]
problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121
F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997)). A general objection that fails to identify
specific factual or legal issues from the Recommendation, however, is not permitted, since it
duplicates the magistrate’s efforts and wastes judicial economy. Howard v. Secretary of Health
and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

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Defendant Harwood made a timely objection to the Report and Recommendation [R. 111]
For several reasons, the Court will review the Report and Recommendation applying a de novo
standard of review. Harwood titled the instant motion as a “motion to dismiss,” but the motion
sought dismissal as a Rule 37(b) sanction for King’s refusal to produce discovery on the source of
the two bullet holes in question. [R. 76] This Court referred the matter to Magistrate Judge
Lindsay for a Report and Recommendation. [R. 83] The Magistrate Judge recommended denying
Harwood’s request to dismiss the case as a discovery sanction pursuant to Rule 37(b). [R. 111]
Magistrate Judge Lindsay also elected to treat Defendant’s Motion to Dismiss as a motion to
compel, given the parties’ extensive briefing on whether or not King should have to answer the
disputed questions. [R. 109 p. 9] He then found that the information Harwood sought through
discovery was irrelevant to the claims and defenses of this action, meaning that Harwood did not
meet the standard to show sanctions were warranted under Rule 37 in the Fifth Amendment
context, and the Court therefore did not need to consider alternative sanctions. [Id. p. 14]
Harwood now objects to Magistrate Judge Lindsay’s recommendation that his Motion to Dismiss
be denied [R. 111 pp. 1; 6], and since Magistrate Judge Lindsay treated his Motion to Dismiss as a
motion to compel under Rule 37, he objects to the denial of that motion as well. [R. 111 p. 1–2]
The focus of Harwood’s objection is really that the Magistrate Judge erred in finding that
the information he sought, the cause of two bullet holes in King’s floor, was irrelevant. [R. 111 pp.
1–2] Typically, a Magistrate Judge’s order denying discovery would be a non-dispositive order
warranting a deferential review under the “clearly erroneous or contrary to law” standard. Fed. R.
Civ. P. 72(a). However, Harwood’s motion sought disposition of the case, albeit as a discovery
sanction. Further, despite barely developing the argument in his objection, Harwood “maintains”
both that the sanctions were indeed appropriate, and that the case should still be dismissed.

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[Id. p. 1 n.1; 6] Thus, in an abundance of caution, the Court referred the matter for a Report and
Recommendation, and has conducted a de novo review of those matters that are the subject of
specific written objection. In any event, the standard of review does not make a difference in this
case: having conducted a de novo review of the Magistrate Judge’s Report and Recommendation
and Defendant’s Objections, the Court is in complete agreement with the Report and
Recommendation that Defendant’s Motion to Dismiss should be denied, it is prudent to construe
Defendant’s Motion to Dismiss as a motion to compel under Fed. R. Civ. P 37(b), and the motion
to compel should be denied.
III.
A.

ANALYSIS:

Motion for Sanctions Under Fed. R. Civ. P. 37(b)

The Court agrees with Magistrate Judge Lindsay that Defendant Harwood’s Motion to
Dismiss should be denied, as sanctions are not appropriate in this case.
a) Rule 37 Sanctions are Inappropriate Because King Did Not Fail to Obey a
Court Order
Fed. R. Civ. P. 37(b) provides that if a party “fails to obey an order to provide or permit
discovery, including an order under Rule 26(f), 25, or 37(a), the court where the action is pending
may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A). Such “just orders” may include
“dismissing the action or proceeding in whole or in part.” Id. at 37(b)(2)(A)(v). However, the
Sixth Circuit has stated that “[b]y its terms, Rule 37(b) requires a party seeking a sanction of
default against a party to secure a court order compelling disclosure or discovery.” Burley v.
Gagacki, 729 F.3d 610, 618 (6th Cir. 2013). In Burley, the Sixth Circuit affirmed the district
court’s denial of a motion for a sanction of default under Rule 37, because the moving party had
never moved to compel discovery even though “it was apparent that [the opposing party] did not
fully respond to the interrogatories.” Id. at 618. That being the case, there was no violation of a
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court order to justify any sanction under Rule 37. Id. Further, the Sixth Circuit has made clear that
dismissal is the sanction of last resort. See id.; Beil v. Lakewood Eng’g and Mfg. Co., 15. F.3d 546,
552 (6th Cir. 1994).
Harwood claims that Rule 37(b) sanctions in the form of dismissal are still appropriate
despite not having obtained an order compelling discovery. [R. 76 p. 12; R. 111 p. 6] Harwood
cites two cases from other circuits for this proposition. The first is a Ninth Circuit case, which
Harwood cites for the proposition that the “order” required “has been read broadly and does not
require a formal order.” [R. 111 p. 6] However, as Harwood identifies no informal order which he
claims King disobeyed, this proposition is not persuasive to the Court. The second case,
McMullen v. Bay Ship Management, 335 F.3d 215, 217 (3d Cir. 2003), is from the Third Circuit.
Harwood cites that case for the proposition that an order is not required under Rule 37 where an
order to compel would have been a meaningless formality because it “would have been an
exercise in futility.” [R. 111 p. 6] However, not only is McMullen not the law of this circuit, it
also does not endorse Harwood’s proposed remedy. In McMullen, the plaintiff invoked his Fifth
Amendment privilege and refused to answer discovery questions because he had been named, but
not yet charged, in an information filed in another federal district court charging one of his
employees with federal crimes. McMullen, 335 F.3d at 216. Defendant filed a motion to compel,
but when ruling on that motion, the district court imposed sanctions because it concluded that “in
the view of the plaintiff’s unequivocal assertion that he would invoke his Fifth Amendment
privilege, the issuance of an order compelling discovery would be a futile act.” Id. at 217. The
issue had been briefed and argued before the magistrate judge at a pre-trial conference, and the
plaintiff’s position was clearly stated (that he would not participate in discovery due to the
pending investigation). Id. There was no mystery as to how the plaintiff would respond when

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discovery requests were made, and there had already been active judicial review of the discovery
dispute. Id. As such, the Third Circuit agreed with the district court that requiring a formal order
to compel before imposing sanctions would have been “a meaningless formality.” Id. However,
the Third Circuit denied the very remedy that Harwood seeks—dismissal of the case. Id. at 219.
In fact, it reversed the district court’s decision to dismiss the case, holding that it was an abuse of
discretion. Id. Therefore, even the non-binding authority Defendant cites to support his claim did
not endorse his remedy, despite facing a scenario where sanctions would have been easier to
justify. Thus, the Court finds that the Magistrate Judge correctly found that Harwood’s motion for
sanctions necessarily fails due to the lack of a motion to compel.
b) Rule 37 Sanctions are Inappropriate Under the Applicable Standard
Even if Harwood’s motion for sanctions was appropriate in the absence of a motion to
compel, the Court would not reverse the Magistrate Judge’s ruling, because sanctions are not
merited here. While the Magistrate Judge did not examine the general Rule 37 factors in favor of
the more specific test which other courts apply in the Fifth Amendment context implicated here,
the Court will briefly examine these factors out of an abundance of caution.
The Sixth Circuit has held that four factors are relevant when analyzing whether sanctions
are appropriate under Rule 37. Reg’l Refuse Sys. v. Inland Reclamation Co., 842 F.2d 150, 153–54
(6th Cir. 1988). They are: 1) whether the party’s failure to cooperate is due to willfulness, bad
faith, or fault; 2) whether the adversary was prejudiced by the party’s failure to cooperate in
discovery; 3) whether the party was warned that failure to cooperate could lead to the sanction;
and 4) whether less drastic sanctions were first imposed or considered. Id.; see also Bank One of
Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir. 1990).

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With respect to the first factor, Sixth Circuit precedent is clear that dismissal is
inappropriate absent “a clear record of delay or contumacious conduct.” See Peltz v. Moretti, 292
F. App’x 475, 479 (6th Cir. 2008) (quoting Freeland v. Amingo, 103 F.3d 1270, 1277 (6th Cir.
1997)). King’s actions during discovery, while potentially frustrating to Harwood, hardly
constitute bad faith or contumacious conduct. Harwood did not obtain an order to compel King to
answer questions about the cause of the two additional bullet holes after the first status conference
with the Magistrate Judge. Instead, it appears that both parties intended to participate fully in
King’s second deposition after Magistrate Judge Lindsay’s preliminary guidance, which indicated
that the information might be relevant. [R. 79 p. 5] However, the day before the scheduled
deposition, King’s counsel learned of “additional facts that were not previously known,” and
advised her to invoke her Fifth Amendment privilege. [Id.] Harwood has not presented any reason
to disbelieve Plaintiff’s counsel on this point, and the fact that King did not move for a protective
order during the parties’ first status conference does not mean she was barred from changing
strategy in response to counsel learning new information. Moreover, King gave Harwood notice
that she would be asserting her Fifth Amendment privilege the day before the deposition began,
yet Harwood chose to proceed anyway rather than seek an order to compel. [R. 76 p. 9–10] While
Harwood may have been frustrated by the late notice, it still does not meet the level of conduct
warranting sanction, let alone a sanction as severe as dismissal. This is particularly true
considering that 1) there was no court order compelling King to cooperate with the discovery
request, and 2) the Court now affirmatively rules that King does not have to do so. See Burley, 729
F.3d at 618. This factor thus weighs in favor of King.
The second factor asks whether Harwood has been prejudiced by King’s failure to
cooperate in discovery. This occurs if the non-cooperating party’s actions “prevent [the other

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party] from obtaining evidence essential to the preparation of its defense.” Universal Health
Group v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir. 2013). As explained more fully below,
Harwood will not be prejudiced by King refusing to answer questions about the cause of the
additional two bullet holes, because that information is irrelevant to King’s claims and Harwood’s
defenses. This factor thus weighs in favor of King.
The third factor, whether the party has been warned that failing to cooperate may lead to
sanctions, weighs in favor of King. King was invited to file for a protective order, but at no point
did the Magistrate Judge indicate that she faced sanctions. [R. 109 p. 5]
Finally, the fourth factor is whether alternative sanctions would be more appropriate.
When balancing a party’s Fifth Amendment rights against a discovery request, “dismissal is
appropriate only where other, less burdensome, remedies would be an ineffective means of
preventing unfairness to defendant.” Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1088
(5th Cir. 1979). As no sanctions are warranted, this factor also favors King. All four factors point
in the same direction: King did not engage in bad faith behavior or violate any court order that
would warrant sanctions in this case, let alone warranting the extreme sanction of dismissal.
B.

Motion to Compel

The Court also agrees with the Magistrate Judge’s finding that the cause of the two
additional bullet holes, first discovered in 2006, is irrelevant to King’s claims and Harwood’s
defenses in this case. That being so, King’s invocation of the Fifth Amendment privilege
forecloses compulsion of her deposition testimony on this issue, and does not warrant dismissal of
the case to cure any prejudice to Harwood.
Federal Rule of Civil Procedure 37 provides that “a party may move for an order
compelling disclosure or discovery” when a deponent fails to answer a question at a deposition.

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Fed. R. Civ. P. 37(a)(1)(3)(B)(i). “Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the
case . . . .” Fed. R. Civ. P. 26(b)(1). “Relevant evidence” is evidence that “has any tendency to
make a fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401. “[I]t is well established that
the scope of discovery is within the sound discretion of the trial court.” Chrysler Corp. v. Fedders
Corp., 643 F.2d 1229, 1240 (6th Cir. 1981); see also S.S. v. E. Ky. Univ., 532 F.3d 445, 451 (6th
Cir. 2008); Hadfield v. Newpage Corp., No. 5:14-CV-00027-TBR-LLK, 2016 WL 427924, at *3
(W.D. Ky. Feb. 3, 2016).
The Fifth Amendment privilege against self-incrimination is applicable in civil
proceedings where a witness’s answer could incriminate the witness in a future criminal
proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The Supreme Court has held that the
court cannot make a litigant’s assertion of his or her Fifth Amendment privilege “costly.” Griffin
v. California, 380 U.S. 609, 614 (1965). The Supreme Court has further clarified that “a [d]istrict
[c]ourt cannot compel [a litigant] to answer deposition questions, over a valid assertion of his Fifth
Amendment right, absent a duly authorized assurance of immunity at the time.” Pillsbury Co. v.
Conboy, 459 U.S. 248, 256–57 (1983).
However, that does not mean that assertions of the privilege will never have adverse
consequences for civil litigants. There are circumstances where the “assertion of the Fifth
Amendment privilege would thwart ‘discovery of issues at the heart of plaintiff’s lawsuit,’” and
courts have held that sanctions, such as dismissal, are appropriate in response to a motion to
compel. Swann v. City of Richmond, 462 F. Supp. 2d 709, 712 (E.D. Va. 2006) (quoting Wehling,

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608 F.2d at 1086. “To hold otherwise would, in terms of the customary metaphor, enable [a]
plaintiff to use his Fifth Amendment shield as a sword.” Wehling, 608 F.2d at 1087.
As both parties have argued, in this case the Court must balance the plaintiff’s Fifth
Amendment right with the unfairness to the defendant. Id. at 1088. However, “the Fifth
Amendment privilege should be upheld unless defendants have substantial need for particular
information and there is no less burdensome effective means of obtaining it.” Serafino v. Hasbro,
Inc., 82 F.3d 515, 518 (1st Cir. 1996); see also Black Panther Party v. Smith, 661 F.2d 1243, 1272
(D.C. Cir. 1981). Here, Harwood has no substantial need for information on the cause of the two
bullet holes. Thus, King’s assertion of the Fifth Amendment privilege does not require dismissal
to balance the equities between the parties.
a) King Has No Substantial Need for the Requested Information
As noted, King’s remaining claims are a malicious prosecution claim under § 1983, and
state law claims of intentional, reckless, or negligent infliction of emotional distress, civil
conspiracy, and negligence/gross negligence/recklessness. To prove malicious prosecution, King
must show that 1) Harwood initiated or participated in the decision to initiate criminal proceedings
against her; 2) there was no probable cause for the criminal prosecution; 3) King suffered a
deprivation of liberty, as understood under Fourth Amendment jurisprudence, apart from the
initial seizure; and 4) the criminal proceeding was resolved in King’s favor. King v. Harwood, 852
F.3d 568, 580 (6th Cir. 2017); Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010). Her state
law claims also all depend on Harwood’s actions and intentions during his investigation and
prosecution of King. See Dukes v. Mid-Eastern Athletic Conference, 213 F. Supp. 3d 887, 893
(W.D. Ky. 2016) (“To sustain a claim for intentional infliction of emotional distress, the plaintiff
must prove (1) the wrongdoer’s conduct was intentional or reckless, (2) the conduct was

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outrageous and intolerable such that it offends the generally accepted standards of decency and
morality, (3) a causal connection between the wrongdoer’s conduct and the plaintiff’s injuries, and
(4) severe emotional distress.”); Pinnacle Surety Servs., Inc. v. Manion Stigger, LLP, No. 3:15-cv364-DJH, 2018 WL 1522698, at *9 (W.D. Ky. Mar. 28, 2018) (quoting Vivid Impact Co. v. Ellis,
No. 3:17-cv-509-JHM, 2017 WL 5505024, at *5 (W.D. Ky. Nov. 16, 2017)) (“The elements of a
civil conspiracy are: (1) an agreement or combination, (2) that is unlawful or corrupt, (3) entered
into by two or more persons, (4) for the purpose of accomplishing an unlawful goal.”); Fulcher v.
United States, 88 F. Supp. 3d 763, 770 (W.D. Ky. 2015) (noting that to succeed on a negligence
claim under Kentucky law, a plaintiff must prove (1) a duty of care owed by the defendant, (2) a
breach of that duty; and (3) actual and proximate causation of an injury to the plaintiff”).
Harwood argues that the cause of “all four bullet holes, including those observed for the
first time in 2006, are relevant to King’s claims and Harwood’s defenses as they formed a
substantial portion of the probable cause for King’s prosecution[.]” [R. 111 pp. 10–11 (emphasis
added)] King would not be able to succeed in her malicious prosecution claim if Harwood had
probable cause for the prosecution. Harwood thus objects to Magistrate Judge Lindsay’s finding
that he has no substantial need to discover the cause of the two additional bullet holes. [R. 111 p.
8]
For malicious prosecution claims, “[a]uthorities must have probable cause to initiate a
criminal proceeding against a suspect at the time it is commenced.” Mott v. Mayer, 524 F. App’x.
179, 188 (6th Cir. 2013) (citing Hartman v. Moore, 547 U.S. 250, 258, (2006)). “Probable cause
determinations involve an examination of all the facts and circumstances within the officer’s
knowledge at the time of an arrest.” Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.
1999) (emphasis in original); see Carroll v. United States, 267 U.S. 132, 162 (1925); see also

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Sykes, 625 F.3d at 310–311 (determining whether there was probable cause in a malicious
prosecution case based on the “totality of the circumstances at the time of the Plaintiffs’ arrest and
through the time that the criminal proceeding against them commenced”). Therefore, the actual
cause of the additional two bullet holes is only relevant to whether the King investigation lacked
probable cause if Harwood knew the cause of the bullet holes at that time. The same goes for the
relevance of the actual cause of the bullet holes to Harwood’s actions or intentions during his
investigation. If Harwood did not know the cause of the two additional bullet holes, he could
neither say that the unknown cause gave his investigation probable cause, nor say that his actions
or motivations in his investigation were based on the unknown cause.
In his objection to the Magistrate Judge’s recommendation, Harwood admits that he “did
not know” the cause of the two additional bullet holes first observed in 2006. [R. 111 p. 10]
Therefore, it would have been impossible for him to rely on that information when making his
probable cause determination. See Estate of Dietrich, 167 F.3d at 1012. Despite this admission,
Harwood claims that his “reasonable belief” alone (that the two additional bullet holes were
caused during Breeden’s murder), and King’s dispute as to its reasonableness, entitles him to
discover the cause of the bullet holes over King’s assertion of her Fifth Amendment privilege.
[R. 111 p. 10] But that is backwards. Indeed, if Harwood’s argument for what one might term
“retroactive probable cause” were valid, it would imply the end of the exclusionary rule against
evidence improperly obtained from an unlawful search. Yet that seems to be the thrust of his
argument. In his motion to dismiss, Harwood asserts that “[i]f these bullet holes were shot into the
floor during the commission of the Breeden murder, then Harwood’s actions could not have
possibly given rise to any of the claims that King is asserting in this matter.” [R. 76 p. 13] But
that is not true: it is a bedrock principle of criminal law that faulty probable cause determinations

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are not retroactively cured merely because the government later procures evidence of guilt. The
point of the “fruit of the poisonous tree” doctrine is that, where it applies, it excludes just such
“fruit.” Regardless of whether there is some as-yet undiscovered evidence of King’s guilt for
murder, it does not change the illegality of any malicious prosecution. King, 852 F.3d at 589, n.5
(“we have held that ‘even if independent evidence establishes probable cause against a suspect, it
would still be unlawful for law-enforcement officers to fabricate evidence in order to strengthen
the case against that suspect’”) (citing Webb v. U.S., 789 F.3d 647, 670 (6th Cir. 2015) (citation
omitted).
Unsurprisingly, Harwood cites no caselaw to suggest that new information he learns in
2019 will affect a probable cause determination he made back in 2006, or his actions or
motivations during his investigation at that time. As such, the Court cannot see how the cause of
the two additional bullet holes, unknown to Harwood, could be relevant to his probable cause
determination or actions during his investigation. Plaintiff concedes, and the Court agrees, that
Harwood can testify all he wants about what he believes caused the bullet holes. [R. 114 p. 12] He
cannot, however, use discovery in an attempt to retroactively bolster a probable cause
determination he made thirteen years ago.
Harwood also argues that the cause of the two additional bullet holes is relevant to King’s
claims that he “falsified evidence and fabricated stories” in his investigation. [R. 111 p. 9] He
points to claims King makes about the bullet holes, such as her claim that the .22 caliber bullet
fragment recovered from her floor could not be matched to bullets recovered from Breeden’s
skull. [R. 111 p. 9; R. 76 pp. 2–3] As Magistrate Judge Lindsay quite clearly demonstrates, none
of these factual allegations are tied to the affirmative causes of the two additional bullet holes. [R.
109 p. 13] King does not claim that Harwood falsified or fabricated the bullet holes themselves.

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Rather, King’s claims center on Harwood’s actions and intentions during his investigation based
on the information he had at the time, including the information he had about the four bullet holes.
[R. 109 p. 13] Therefore, Harwood has not demonstrated a substantial need for information about
their cause, and his motion to dismiss as a sanction for failing to engage in discovery about that
information must fail.
IV.

Conclusion

After conducting a de novo review of the matters raised by plaintiff’s objections, the Court
fully agrees with the Magistrate Judge’s Report and Recommendation. The Magistrate Judge’s
analysis of the issues and application of the law are appropriate, and his recommendations are
adopted.
Accordingly, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED as follows:
1.

The Motion to Dismiss filed by Defendant Todd Harwood [R. 76] is DENIED.

2.

The Report and Recommendation [R. 109] is ADOPTED as the opinion of the

3.

The Defendant’s Objection [R. 111] is OVERRULED.

4.

Defendant’s Motion for Oral Argument on his pending Motion for Summary

Court.

Judgment and Harwood’s Objection to the Report and Recommendation [R. 112] is DENIED IN
PART, as to the request for oral argument on the objection.

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