Cristini v. Warren, City of et al

Filing 139

OPINION and ORDER Dismissing as Moot 98 MOTION in Limine to Limit Testimony of Plaintiff's Forensic Odontology Expert Witnesses filed by Alan Warnick; Granting in Part and Denying in Part 95 MOTION for Summary Judgment filed by Donald Ingles, Michael Schultz, Warren Police Department and City of Warren; Dismissing as Moot 100 MOTION for Summary Judgment filed by Alan Warnick; AND Dismissing as Moot 97 MOTION for Summary Judgment filed by Macomb County Prosecutor, County of Macomb; ( Status Conference for remaining parties set for 12/17/2012 03:00 PM before District Judge David M. Lawson)(after motion hearing). Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL LOUIS CRISTINI,
Plaintiff,
Case No. 07-11141
Honorable David M. Lawson

v.
CITY OF WARREN, WARREN POLICE
DEPARTMENT, ALAN WARNICK,
ALICE INGLES as guardian for Donald
Ingles, and JOHN DOE members of Warren
Police Department and Office of the Prosecutor,
Defendants.
_______________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
The plaintiff in this case has filed an action that parallels an earlier case filed by Jeffrey
Moldowan, contending that he was wrongfully prosecuted and convicted of a brutal kidnapping and
rape by authorities that withheld evidence that was material to his innocence. Moldowan’s case was
settled and dismissed earlier this year. Following his subsequent acquittal, plaintiff Michael Cristini
sued the defendants alleging violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights
under 42 U.S.C. § 1983 because defendants the City of Warren, the Warren Police Department, and
Donald Ingles allegedly withheld exculpatory evidence in the underlying trial at which he was
convicted and destroyed evidence in violation of a court order. The plaintiff also brings claims of
detention and prosecution without probable cause under the Fourth and Fourteenth Amendment
against the City of Warren, the Warren Police Department, the Macomb County Prosecutor, and
Macomb County. The defendants in this case have filed their respective motions for summary
judgment, raising many of the same arguments interposed in the Moldowan lawsuit, plus an

additional defense based on the statute of limitations. The Court heard oral argument on January
12, 2012. Since then, the Macomb County defendants have resolved their part of the case and have
been dismissed as parties. Their motion for summary judgment will be dismissed as moot. As to
the remaining motions, the Court now concludes that the plaintiff has offered sufficient evidence to
allow him to proceed against defendants Donald Ingles and the City of Warren on counts IX, X, XI,
XII, and XXII, of the complaint, but the defendants are entitled to a judgment as a matter of law on
the remaining counts. Therefore, the Court will grant in part and deny in part the motions for
summary judgment.
I.
As mentioned, this case arises from the same facts that spawned the Moldowan lawsuit,
which was adjudicated on interlocutory appeal by the Sixth Circuit. Moldowan v. City of Warren,
578 F.3d 351 (6th Cir. 2009).
A. Events leading to the plaintiff’s original conviction
As explained in that opinion and in other filings by this Court, the events underlying this
lawsuit began on the morning of August 9, 1990 when Emergency Medical Services found Maureen
Fournier injured and lying in the street in Detroit. In preliminary interviews, Fournier reported that
she was abducted from Warren, Michigan and assaulted by four white males: Michael Cristini (the
plaintiff in the present action), Jim Cristini, Tracy Tapp, and Jeffrey Moldowan, all of whom she
knew.
At the preliminary examination on September 17 and 18, 1990, Fournier and her sister,
Colleen Corcoran, testified that Moldowan had dated Fournier previously and had been abusive and
threatening toward her. Corcoran stated that on August 8, 1990 Moldowan called her house looking

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for Fournier and told her that “he was going to get [Fournier].” Fournier testified that on the evening
of August 8 she was walking on 11 Mile Road in Warren when a van pulled alongside her.
Moldowan allegedly got out of the van, grabbed her, and dragged her into the van, where she was
beaten and raped. Corcoran testified that she received a call the following day from an anonymous
male she immediately identified as Moldowan asking about Fournier’s whereabouts. Although she
knew that Fournier was in the hospital, Corcoran told the caller that her sister was at home, to which
the caller allegedly replied, “No, she’s not. . . . She’s at the morgue.” Following the preliminary
examination, only the plaintiff and Moldowan were bound over for trial and remained as defendants
in the case.
The first jury trial took place from April 30 to May 10, 1991. Dr. Alan Warnick, a forensic
odentologist and consultant for the Medical Examiner’s offices in Wayne County, Macomb County,
and Monroe County, and the Michigan State Police, offered expert testimony at the trial that bite
marks on Fournier’s neck were consistent with Moldowan’s dentition, while bite marks on
Fournier’s right arm and right side were consistent with the plaintiff’s dentition. Dr. Warnick
testified that the chances were “2.1 billion to 1 that another individual [made] those same marks,”
and his testimony was corroborated by his colleague Pamela Hammel, D.D.S. The plaintiff’s own
forensic odentologists countered Dr. Warnick’s testimony regarding the bite mark evidence. The
plaintiff and Moldowan also offered testimony from alibi witnesses. The jury convicted the plaintiff
and Moldowan of kidnapping, assault with intent to commit murder, and two counts of criminal
sexual conduct in the first degree. The plaintiff was sentenced to four concurrent prison terms of 50
to 75 years.

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B. Subsequent evidentiary findings
Following the first trial, Moldowan’s family hired a private investigator who located Jerry
Burroughs. Burroughs reported that when he left his mother’s home on the morning of August 9,
1990, he saw four black males standing around and kicking a naked white female lying in the street
before they drove away in a light-colored van. He further testified that one week following the
incident he heard two of the men, Chris and Mitch, talking about the incident and bragging that they
had participated. The plaintiff alleges that defendant Ingles and the Warren Police Department knew
of this evidence and withheld it from him and Moldowan during the first trial.
After being approached by Moldowan’s appellate counsel, Dr. Hammel recanted her 1991
trial testimony regarding the bite marks on Ms. Fournier’s body. She stated that when she originally
reviewed the evidence in 1991 she had difficulty matching the bite marks to Moldowan’s dentition,
but that Dr. Warnick had reassured her that Dr. Norman Sperber, a highly respected forensic
odentologist, had reviewed the evidence and confirmed Dr. Warnick's conclusions. In a sworn
affidavit, Dr. Hammel stated that, had she known that Dr. Warnick’s representation that Dr. Sperber
had reviewed the evidence was untrue, she “would never have agreed to testify as a rebuttal witness
in support of Dr. Warnick’s conclusions.”
After the first trial, the Macomb County circuit court entered an order requiring that all
evidence in the custody of the Warren Police Department, the Macomb County Prosecutor’s Office
and the Macomb County circuit court be preserved until further order of the court. Despite that
order, Officer Michael Schultz of the Warren Police Department destroyed the evidence in the police
department’s custody at some point after the plaintiff’s first trial and before the plaintiff’s second
trial. The evidence that was destroyed included hairs, blood samples, bite impressions, a “spike”,

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a jacket, pizza order tickets, a video tape, nail scrapings, and shoes. A Michigan State Police
Laboratory report indicated that the nail scrapings did not have immediate evidentiary value and
that the hairs were dog and cat hairs.
C. The Plaintiff’s Acquittal
On May 15, 2002, the Michigan Supreme Court reversed Moldowan’s conviction,
concluding that because of the new alibi witness, Burroughs, and the fact that the prosecution’s
expert witnesses had either recanted their testimony regarding the bite mark evidence or had been
discredited, a new trial was warranted. People v. Moldowan, 466 Mich. 862, 643 N.W.2d 570
(2002). After the Michigan Supreme Court reversed Moldowan’s conviction, the Macomb County
prosecutor retried Moldowan beginning on January 10, 2003. On February 12, 2003, the jury
acquitted him of all criminal charges.
After Molodowan’s acquittal, the Macomb County circuit court granted the plaintiff’s motion
for relief from judgment on October 20, 2003, vacating the plaintiff’s convictions and ordering a
new trial. The plaintiff was released on bond and remained under house arrest throughout the trial.
The plaintiff’s retrial commenced on March 16, 2004, and the plaintiff was acquitted on April 8,
2004.
D. The Moldowan Civil Action
In January 2005, Moldowan filed suit in this Court, alleging under 42 U.S.C. § 1983 that his
rights guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendment and Michigan law were
violated by his arrest, criminal prosecution, conviction, and retrial in the Fournier case. The case
was assigned to the Honorable Anna Diggs Taylor. The theory behind the complaint was that the
City of Warren, the Warren Police Department, Macomb County, the Macomb County prosecutor,

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Dr. Alan Warnick, Warren Police Detective Donald Ingles, Warren Police Officer Mark Christian,
and Fournier acted separately and conspired together to violate the plaintiff’s civil rights by
fabricating evidence against him, failing to disclose exculpatory evidence, and pursuing his
prosecution and retrial without probable cause. The claims in Moldowan’s case are similar,
although not identical, to those in the present case.
In April 2007, the defendants in the Moldowan action filed motions for summary judgment
raising issues similar to those raised here. The Warren defendants argued that defendant Ingles was
entitled to qualified immunity, that a Brady duty had not been extended to police officers, that there
was no evidence of a pertinent policy or custom to support municipal liability, and that probable
cause existed to try Moldowan. Macomb County and the Macomb County prosecutor filed a motion
for summary judgment arguing that there was probable cause for Moldowan’s prosecution and that
the plaintiff’s substantive and procedural due process claims were subsumed by his Fourth
Amendment claims. Moldowan also moved for partial summary judgment as to his Brady claims
against defendant Ingles. Judge Taylor granted the Warren defendants’ motion for summary
judgment with respect to their contention that the Warren Police Department was not an entity
capable of being sued and denied it on all other grounds. Judge Taylor also denied the Macomb
defendants’ and Moldowan’s motions for summary judgment.
The Warren defendants appealed the district court’s denial of qualified immunity, and the
Sixth Circuit affirmed in part and reversed in part the district court’s decision. See Moldowan, 578
F.3d at 351. Moldowan’s surviving claims were that defendant Ingles violated the Fourth, Fifth,
Sixth, and Fourteenth Amendments by withholding exculpatory evidence and committed gross
negligence in connection with his role in the 1990 investigation; that the City of Warren and the

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Warren Police Department were liable for failing to properly train their police force and for
destroying evidence in violation of a court order; and that the Warren Police Department, the City
of Warren, the Macomb County Prosecutor, and Macomb County falsely imprisoned the plaintiff
without probable cause in connection with the second prosecution. The case was settled and closed
on November 1, 2011.
E. The plaintiff’s lawsuit
On March 15, 2007, the plaintiff filed a 29-count complaint against the City of Warren, the
Warren Police Department, Macomb County, the Macomb County prosecutor, Alan Warnick,
Donald Ingles, Michael Schultz, and Maureen Fournier. On January 14, 2011, all claims against
defendant Fournier were dropped. Discovery has been completed. Presently before the Court are
motions for summary judgment filed by defendants Donald Ingles, Michael Schultz, the City of
Warren, and the Warren Police Department (the “Warren defendants”), defendants the Macomb
County Prosecutor and the County of Macomb, and defendant Alan Warnick. On November 7,
2011, the parties stipulated to dismiss all claims against Schultz and certain claims against the City
of Warren, the Warren Police Department, and Ingles. Defendant Donald Ingles was replaced as
a defendant by his guardian, Alice Ingles, on December 1, 2011. The Court was notified of Mr.
Ingles’s death on May 4, 2012, and there is currently pending before the Court a motion to substitute
the personal representative of his estate as a defendant. As mentioned, the Macomb defendants have
resolved their part of the case and a dismissal order was entered. In addition, the parties presented
an order pertaining to negotiations of settlement checks from Dr. Warnick, which implies that he
settled his part of the case, although the parties have not formally notified the Court of the settlement
or presented a stipulation for dismissal. Nonetheless, the Court will assume the claims against Dr.

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Warnick have been resolved and will dismiss his motion for summary judgment as moot. Finally,
the Warren defendants and the plaintiff have agreed to dismiss several counts of the complaint, some
of which are the subject of the pending summary judgment motions. The following counts remain:
(1) against defendant Ingles: violation of the plaintiff’s Fourth Amendment rights through failure
to disclose exculpatory evidence (count IX); violation of the plaintiff’s Fifth and Sixth Amendment
rights through failure to disclose exculpatory evidence (count X); violation of the plaintiff’s right
to substantive due process under the Fourteenth Amendment through failure to disclose exculpatory
evidence (count XI); and violation of the plaintiff’s right to procedural due process under the
Fourteenth Amendment through failure to disclose exculpatory evidence (count XII); and (2) against
defendants the City of Warren and the Warren Police Department: failure to train and supervise
police officers regarding the constitutional rights of citizens (count XXII); liability for the actions
of defendant Ingles as final policymaker (count XXIII); and liability for the destruction of evidence
in violation of a court order (count XXIV); continued seizure during the second trial in violation of
the Fourth Amendment (count XXV); continued seizure during the second trial in violation of the
Fourteenth Amendment right to substantive due process (count XXVI); and continued seizure during
the second trial in violation of the Fourteenth Amendment right to procedural due process (count
XXVII).
II.
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).
As the Sixth Circuit has explained:
Both claimants and parties defending against a claim may move for summary
judgment “with or without supporting affidavits.” Fed. R. Civ. P. 56(a), (b). Such a
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motion presumes the absence of a genuine issue of material fact for trial. The court
must view the evidence and draw all reasonable inferences in favor of the
non-moving party, and determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986).
Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009).
“The party bringing the summary judgment motion has the initial burden of informing the
district court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.” Id. at 558. (citing Mt. Lebanon Personal Care
Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the
party opposing the motion then may not ‘rely on the hope that the trier of fact will disbelieve the
movant’s denial of a disputed fact’ but must make an affirmative showing with proper evidence in
order to defeat the motion.” Ibid. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989)).
“[T]he party opposing the summary judgment motion must do more than simply show that
there is some ‘metaphysical doubt as to the material facts.’” Highland Capital, Inc. v. Franklin Nat’l
Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)) (internal quotation marks omitted). A party opposing a motion for
summary judgment must designate specific facts in affidavits, depositions, or other factual material
showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S.
at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or
her burden of proof, summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “Thus, the mere existence of a scintilla of evidence in support of the [opposing
party]’s position will be insufficient; there must be evidence on which the jury could reasonably find
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for the [opposing party].” Highland Capital, Inc., 350 F.3d at 546 (quoting Anderson, 477 U.S. at
251-52) (internal quotation marks omitted).
Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.
Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if
its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d
574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.
Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could
return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248).
In a defensive motion for summary judgment, the party who bears the burden of proof must
present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th
Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for
summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895
(6th Cir. 1991).
A. Claims against Warren Police Department
The Warren defendants assert that all claims against the Warren Police Department — counts
XXII through XXVII of the plaintiff’s complaint — must be dismissed because the Warren Police
Department is not an entity capable of being sued. Under Michigan law, a police department is an
agency of the city, and is not a discrete entity that can be sued. See Boykin v. Van Buren Tp., 479
F.3d 444, 450 (6th Cir. 2007); Laise v. City of Utica, 970 F. Supp. 605, 608 (E.D. Mich. 1997);
Pierzynowski v. Police Dept. City of Detroit, 941 F. Supp. 633, 637 n.4 (E.D. Mich. 1996)
(construing a complaint naming the City of Detroit Police Department as a defendant as naming the

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City of Detroit because the Detroit Police Department is not an entity that can be sued); Haverstick
Enterprises, Inc. v. Financial Federal Credit, Inc., 803 F. Supp. 1251, 1256 (E.D. Mich. 1992); see
also Mich. Comp. Laws § 92.1 (“The council of any city may provide, by ordinance, for a police
force . . . .”). The plaintiff has not rebutted the Warren defendants’ argument, nor has it provided
any case law that conflicts with the cases cited above. The Court agrees with the defendants’
argument and will grant the Warren defendants’ motion for summary judgment with respect to the
plaintiff’s claims against defendant the Warren Police Department.
B. Qualified immunity
Defendant Ingles argues that he is entitled to qualified immunity on the claims against him.
The plaintiff contends that Ingles violated his clearly established constitutional rights by not
disclosing exculpatory evidence, and Ingles is collaterally estopped from raising that defense by the
Sixth Circuit’s decision in the Moldowan interlocutory appeal.
1.
The Court will address the second argument first. In response to the claim of collateral
estoppel, Ingles replies that the parties in Moldowan were different and that no question of fact was
fully and finally litigated, and thus collateral estoppel does not apply.
Where the judgment that a party looks to for preclusion is a federal court judgment, the Court
must “look to federal law to determine its preclusive effect.” Hamilton’s Bogarts v. Michigan, 501
F.3d 644, 650 (6th Cir. 2007); see also EB-Bran Productions v. Warner, 242 F. App’x 311, 312 (6th
Cir. 2007) (“[A] federal court applies federal law in determining the preclusive effect of a prior
federal judgement . . . at least where jurisdiction in the prior litigation was based on a federal

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1question.”). The Sixth Circuit has listed four requirements for the application of collateral
estoppel:
(1) the precise issue raised in the present case must have been raised and actually
litigated in the prior proceeding; (2) determination of the issue must have been
necessary to the outcome of the prior proceeding; (3) the prior proceeding must have
resulted in a final judgment on the merits; and (4) the party against whom estoppel
is sought must have had a full and fair opportunity to litigate the issue in the prior
proceeding.
Hamilton’s Bogarts, 501 F.3d at 650 (quoting NAACP, Detroit Branch v. Detroit Police Officers
Ass’n (DPOA), 821 F.2d 328, 330 (6th Cir. 1987)). Ingles’s protestations that the Moldowan
decision did not fully and finally litigate a question of fact and that the parties are not the same are
beside the point, because those are requirements for collateral estoppel under Michigan law, which
does not apply in this case. See Gilbert v. Ferry, 413 F.3d 578, 580-81 (6th Cir. 2005) (listing the
requirements for collateral estoppel under Michigan law).
The only issues Ingles raises that address the requirements for collateral estoppel are the
questions of law as to the plaintiff’s Brady claim against defendant him: that is, whether Brady
applies to police officers and whether defendant Ingles is entitled to qualified immunity. The Court
believes that the decision in Moldowan estops Ingles from advancing those defenses here.
Ingles summarily argues that no section 1983 action may be maintained against a police
officer for failure to submit exculpatory information to the prosecutor. He also argues that he would
be entitled to qualified immunity as to any Brady violations. But in Moldowan, the Sixth Circuit
ruled against him on both counts. It held that the plaintiff may maintain a section 1983 action
against a police officer for failure to submit exculpatory information to prosecutors, that right was
clearly established on the date of its alleged violation by Ingles, and therefore Ingles was not entitled
to qualified immunity on the plaintiff’s Brady claims. Moldowan, 578 F.3d at 381-82. Those
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precise issues were raised and actually litigated in the Moldowan case, satisfying the first
requirement for collateral estoppel. Moreover, the determination on those issues was both necessary
to the outcome and a final decision on the merits, satisfying the second and third requirements. Had
the Sixth Circuit held differently on any of those issues, it would have been required to grant Ingles’
motion for summary judgment on the plaintiff’s Brady claims, either because the plaintiff had no
claim against Ingles or because Ingles was entitled to qualified immunity. The Sixth Circuit’s ruling
on those questions of law must also be considered a final decision on the merits. Ordinarily, a ruling
denying summary judgment will not be a final ruling on the merits. However, in this case, the Sixth
Circuit accepted jurisdiction over the Warren defendants’ appeal of the district court’s qualified
immunity finding on the theory that the issue was a collateral order that “conclusively determine[d]
the disputed question.” Moldowan, 578 F.3d at 368 (quoting Will v. Hallock, 546 U.S. 345, 349
(2006)). The Sixth Circuit’s holding on defendant Ingles’ claim of qualified immunity therefore was
determined conclusively, as, necessarily, was the question whether police officers have a duty under
Brady to disclose exculpatory information. Finally, there is no evidence to suggest that Ingles did
not have a full and fair opportunity to litigate this issue, satisfying the fourth requirement.
2.
Even if collateral estoppel did not apply, however, the outcome of the motion would be the
same. In arguing that counts IX, X, XI, and XII should be dismissed, Ingles repeats the arguments
that the duty to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963), does
not extend to police officers, Ingles is entitled to qualified immunity, and there is not sufficient
evidence to create a genuine issue of material fact as to whether defendant Ingles violated Brady by
withholding exculpatory evidence. The plaintiff asserts, correctly, that the first two of these issues

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were disposed of by the Sixth Circuit’s decision in Moldowan v. Warren, 578 F.3d 351 (6th Cir.
2009), and that a genuine issue of material fact exists as to whether defendant Ingles committed a
Brady violation.
When determining whether defendant Ingles was entitled to qualified immunity, the
Moldowan court considered, first, whether a duty to disclose exculpatory information under Brady
extends to police officers; second, whether such a duty was clearly established at the time of
defendant Ingles’s alleged Brady violation; and third, whether, construing the facts in the light most
favorable to the plaintiff, the plaintiff could establish a violation of his constitutional rights. The
court found that “the obligations imposed under Brady would be largely ineffective if [police and
other law enforcement officers] had no responsibility to inform the prosecutor team about evidence
that undermined the state’s preferred theory of the crime.” Moldowan, 578 F.3d at 378. Therefore,
“because the police are just as much an arm of the state as the prosecution, the police inflict the same
constitutional injury when they hide, conceal, destroy, withhold, or even fail to disclose material
exculpatory information.” Id. at 379. The court recognized that “the due process guarantees
recognized in Brady also impose an analogous or derivative obligation on the police.” Id. at 381.
The court then held that this obligation was clearly established on the date of Ingles’s alleged
Brady violation. The court found that other circuits had recognized the “Brady-derived” claim
advanced by the plaintiff as early as 1964, and that “at least three circuits recognized prior to August
1990, the earliest possible date for Detective Ingles’ involvement in the case, that this right was
clearly established.” Id. at 382. The court held that “the overwhelming number of decisions from
other circuits recognizing this type of claim satisfies us that any reasonable police officer would

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know that suppressing exculpatory evidence was a violation of the accused’s constitutional rights.”
Ibid.
Finally, the court found, examining the facts in the light most favorable to the plaintiff, that
the evidence withheld by defendant Ingles was exculpatory and the plaintiff could make out a claim
of a Brady violation against defendant Ingles. Ibid. The Warren defendants argued, as they do here,
that a showing of bad faith on the part of Ingles was required in order to prevail. Ibid. The court
disagreed, holding that
police actions taken in bad faith are not the only species of police conduct that can
deprive criminal defendants of the due process guaranteed by the Constitution. We
acknowledge that a number of courts, including the Supreme Court have held that
a showing of bad faith is required to prevail on a claim that the police deprived a
defendant of due process by concealing or withholding evidence that is only
“potentially useful.” But, where the police are aware that the evidence in their
possession is exculpatory, the Supreme Court’s decisions in this area indicate that
the police have an absolute duty to preserve and disclose that information. The
critical issue in determining whether bad faith is required thus is not whether the
evidence is withheld by the prosecutor or the police, but rather whether the
exculpatory value of the evidence is “apparent” or not. . . . In other words, the critical
issue in determining whether government conduct deprived a criminal defendant of
a fair trial is the nature of the evidence that was withheld; it emphatically is not the
mental state of the government official who suppressed the evidence.
Id. at 383-84 (emphasis in original). The court found that, even if it believed that a showing of bad
faith were required, there was sufficient evidence for a reasonable jury to find that Ingles acted in
bad faith. Id. at 389. The court found that Ingles was not entitled to qualified immunity on the
plaintiff’s Brady claims. Id. at 401. All of those holdings apply with equal force to the present case,
in which plaintiff Cristini is identically situated with Jeffrey Moldowan.
The Warren defendants now argue that the Sixth Circuit’s Moldowan decision is inconsistent
with the Supreme Court’s subsequent decisions in Ashcroft v. al-Kidd, --- U.S. ---, 131 S. Ct. 2074
(2011), and Connick v. Thompson, --- U.S. ---, 131 S. Ct. 1350 (2011). However, they do not
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explain how those decisions conflict with Moldowan. It is clear to the Court that neither decision
calls Moldowan into question. Al-Kidd deals with a claim of qualified immunity in the context of
a Fourth Amendment violation where the plaintiff alleged that a material witness warrant was used
as a pretext to detain him. Id. at 2079. The Supreme Court overturned the lower courts’ denial of
qualified immunity; however, the decision has nothing to say about qualified immunity in the
context of Brady violations by police officers. There is nothing in the decision to suggest that the
Sixth Circuit’s determination of the qualified immunity issue in Moldowan was in error. Connick
deals with municipal liability for single instances of Brady violations and is thus relevant to the
plaintiff’s claims against the City of Warren based on defendant Ingles’s conduct. However, it has
nothing to do with Brady violations by police officers or with qualified immunity. There is nothing
in either of the decisions cited by the Warren defendants to suggest that Moldowan was incorrectly
decided.
Ingles argues that the record in this case could not support a finding of a Brady violation.
According to Moldowan, in order to make out a claim for a violation of Brady by a police officer,
the plaintiff must demonstrate (1) either that the suppressed evidence was apparently exculpatory
or that the suppressed evidence was potentially exculpatory and the police acted in bad faith and (2)
that the suppressed evidence was material. Moldowan, 578 F.3d at 383-84 (“The critical issue in
determining whether bad faith is required thus is not whether the evidence is withheld by the
prosecutor or the police, but rather whether the exculpatory value of the evidence is ‘apparent’ or
not.”); Brady, 373 U.S. at 87. Ingles contends that the evidence he allegedly suppressed — the
statement by Burroughs that he had seen four black men surrounding the victim’s naked body, one
of whom kicked the victim, in the early morning hours of August 9, 1990, and the discussion he

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overheard later — is neither apparently exculpatory nor material. In the context of this entire
episode, including the subsequent criminal trials, that cannot be so.
The Sixth Circuit has not yet articulated a test for determining whether an item of evidence
is apparently exculpatory or merely potentially exculpatory. Elkins v. Summit County, Ohio, 615
F.3d 671, 677 (6th Cir. 2010). However, in Moldowan, the Sixth Circuit stated that “it is evident
that Burroughs’ statements cast serious doubt on, if not entirely discredit, Fournier’s identification
of Moldowan as one of her attackers, an issue that undoubtedly was one of the most important
elements of the state’s case. Burroughs’ statements thus should have been disclosed to the defense
as they undoubtedly ‘would tend to exculpate’ Moldowan.” Moldowan, 578 F.3d at 382 (quoting
Brady, 373 U.S. at 88). Those observations apply with equal force to plaintiff Cristini.
In Elkins, the court found that a statement that cast doubt on the identity of a victim’s
attacker was apparently exculpatory where the other evidence against the plaintiff was not strong.
Ingles argues that in contrast, the other evidence against Cristini was strong: an eyewitness
identification by the victim and bite mark evidence that appeared to implicate the plaintiff.
However, in Elkins, the court also stated that “[w]hile we have never elucidated a test for
determining what evidence is apparently exculpatory, there is no question that, in light of the broad
range of evidence available to the officers at the time, the [exulpatory] statement ‘cast serious doubt
on, if not entirely discredit[ed Brooke’s] identification of [Elkins].’ Moldowan, 578 F.3d at 382.
Even less would have been sufficient.” Elkins, 615 F.3d at 677 (emphasis added). This final
statement indicates that a case as weak as that in Elkins is not necessary to find that a statement that
calls into doubt a victim’s identification is apparently exculpatory. Further, in Elkins, the court
found it important that the exculpatory statement “‘might be expected to play a significant role in

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[the plaintiff’s] defense.’” Ibid. (quoting Moldowan, 578 F.3d at 388). Similarly, here, a statement
directly implicating others in the attack on the victim could have been expected to play a significant
role in the plaintiff’s defense. There is little doubt that a jury could find that the withheld evidence
was apparently exculpatory; Elkins does not foreclose that possibility.
Ingles also argues that a Brady violation does not occur unless the suppressed evidence is
material and favorable to the accused, Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985), and the
evidence he withheld was not material as a matter of law. Again, that simply cannot be true.
Favorable evidence is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 432-36 (1995). Material
evidence is that which is “so clearly supportive of a claim of innocence that it gives the prosecution
notice of a duty to produce.” United States v. Clark, 988 F.2d 1459, 1467 (6th Cir. 1993). As the
Supreme Court has stated, “[t]he question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 435.
In determining whether the evidence Ingles allegedly suppressed was material, the plaintiff’s
acquittal at a second trial in which the evidence was introduced looms large. Although the second
trial also did not include disputed bite mark evidence, the fact that the plaintiff was acquitted in a
trial that included the suppressed evidence is a strong indication of the materiality of that evidence.
The Warren defendants argue that with the volume of evidence presented in the first trial, and the
eyewitness and forensic evidence presented by the prosecution, the suppressed evidence could not
have created a reasonable probability of a different result. However, as the Warren defendants

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themselves emphasize, the victim’s eyewitness identification was one of the key pieces, if not the
key piece, of evidence in the case against the plaintiff. Evidence that would tend to discredit that
eyewitness identification would have been of paramount importance at trial. Additionally, in
Moldowan, the Sixth Circuit held that the issue of whether the plaintiff was prejudiced — that is,
whether the allegedly suppressed evidence was material — “involve[d] disputed issues of fact.”
Moldowan, 578 F.3d at 389. Ingles is not entitled to qualified immunity on counts IX, X, XI, and
XII of the complaint.
C. Claims against the City of Warren
1. Liability for defendant Ingles’s alleged Brady violation
The Warren defendants argue that counts XXII and XXIII, in which the plaintiff asserts that
defendant the City of Warren is responsible for defendant Ingles’s alleged Brady violations under
either a failure to train or a final policymaker theory of liability, must be dismissed because there
was no underlying constitutional violation, there is no evidence of deliberate indifference to the need
for training, and defendant Ingles was not a final policymaker. The plaintiff’s contention that
collateral estoppel precludes these argument is not well taken. The Sixth Circuit merely held that
there were factual issues concerning the adequacy of the City of Warren’s training that were beyond
the scope of the appeal. Moldowan, 578 F.3d at 393 n.18. Because that determination was based
on a review of the record that construed the facts in light most favorable to Moldowan, id. at 370,
it cannot be said that the prior proceeding resulted in a final judgment on the merits on this issue as
required for collateral estoppel. The plaintiff also responds that there are genuine issues of material
fact on these claims that preclude summary judgment for the defendants.

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a. Failure to train
“A municipality is liable for a constitutional violation when execution of the municipality’s
policy or custom inflicts the alleged injury.” Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir.
2008) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The Sixth Circuit explained
that “[t]he official policy or custom ‘must be the moving force of the constitutional violation’ to
establish the liability of a government body.” Ibid. (quoting Polk Cnty. v. Dodson, 454 U.S. 312,
326 (1981)). The absence of a written policy endorsing the constitutional violation is not fatal to
a claim. “Section 1983[] ‘authorizes suit “for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal approval through the
body’s official decisionmaking channels.”’” Cash v. Hamilton Cnty. Dep’t of Adult Probation, 388
F.3d 539, 542-43 (6th Cir. 2004) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)).
To sustain municipal liability under that theory, a plaintiff must “prove the existence of a widespread
practice that, although not authorized by written law or express municipal policy, is so permanent
and well settled as to constitute a custom or usage with the force of law.” Id. at 543 (citation and
quotation marks omitted).
As the Supreme Court recognized in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989),
a city can be held liable under section 1983 for failure to train its employees. To prevail, the plaintiff
must show that the “training program is inadequate to the tasks that officers must perform; that the
inadequacy is the result of the city’s deliberate indifference; and that the inadequacy is ‘closely
related to’ or ‘actually caused’ the plaintiff's injury.” Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.
1989). A municipality can be held liable for inadequate police training under section 1983 “only
where the failure to train amounts to deliberate indifference to rights of persons with whom the

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police come into contact.” City of Canton, 489 U.S. at 388. The mere fact that a few officers may
be inadequately trained is not sufficient to demonstrate liability, as the shortcomings could be caused
by officer inattention or poor administration. Id. at 391. Allegations that the officers in question
could have been better trained are also insufficient. Ibid. Rather, the “failure to train [must] reflect[]
a ‘deliberate’ or ‘conscious’ choice by a municipality.” Id. at 389. “A pattern of similar
constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate
indifference for the purposes of failure to train.” Connick, 131 S. Ct. at 1360 (quoting Board of
Cnty. Comm’rs of Bryan County, Olk. v. Brown, 520 U.S. 397, 409 (1997)).
The Warren defendants have not pointed to any evidence that the City of Warren trained its
police officers on avoiding Brady violations, beyond a statement in answer to the plaintiff’s
interrogatories that Brady standards are not taught in any formalized training but are discussed in
the police academy and legal updates and may have been mentioned in some training sessions.
Instead, the Warren defendants argue that the city cannot be said to have been deliberately
indifferent to the need for such training. Recently, the Supreme Court held in Connick v. Thompson
that a single instance of a Brady violation by a prosecutor cannot support a finding of municipal
liability on a failure to train theory, as a single violation would be insufficient to put a prosecutor’s
office on notice of the need for specific Brady training. Id. at 1361. The Warren defendants contend
that Connick mandates the conclusion that the plaintiff’s failure to demonstrate other, similar Brady
violations by police officers in Warren is fatal to his claim. However, the Connick decision relied
on the fact that the alleged Brady violation was committed by a prosecutor, who was trained in the
law and was “not only equipped . . . but also ethically bound to know what Brady entails and to
perform legal research [if he was] uncertain.” Connick, 131 S. Ct. at 1363. The Court also relied

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on the fact that it was “undisputed . . . that the prosecutors in [the defendant’s] office were familiar
with the general Brady rule.” Ibid. The Court stated that the reason that a single-incident theory
of liability was inapplicable in that case was “that attorneys, unlike police officers, are equipped with
the tools to find, interpret, and apply legal principles.” Id. at 1364 (emphasis added).
In contrast, here, the Brady violation allegedly was committed by a police officer who, unlike
an attorney, presumably had no law school training or other occasion to become generally familiar
with Brady. Nor is a police officer “equipped with the tools to find, interpret, and apply legal
principles.” Ibid. Because of those important differences, the Warren defendants’ analogy to
Connick is imperfect. Instead, the Court believes that City of Canton, Ohio v. Harris, 489 U.S. 378
(1989), is a more appropriate rubric under which to evaluate the plaintiff’s failure-to-train claim.
Canton has been understood generally to stand for the proposition that a single instance of a
constitutional violation may be sufficient to support municipal liability where the need for training
is so obvious that the failure to provide it, even in the absence of a demonstrated pattern of
violations, constitutes deliberate indifference. See Connick, 131 S. Ct. at 1361; Bryan County, 520
U.S. at 409. In Canton, the example of obviousness that the Court provides is the need to train
officers in the constitutional limits on the use of deadly force. The Court reasoned that “city
policymakers know to a moral certainty that their police officers will be required to arrest fleeing
felons” and the city has provided those officers with guns. Canton, 489 U.S. at 390 n.10. The
circumstances of the present case are much closer to Canton than to Connick. Just as in the
hypothetical advanced in Canton, city policymakers know to a “moral certainty” that at some point,
their investigating officers will be confronted with evidence that contradicts a working investigative
theory and tends to exonerate a prime suspect. Unlike the prosecutors in Connick, those officers

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presumably are not generally familiar with Brady’s principles or equipped to do the necessary legal
research to become familiar with those principles. Although it is true that a potential Brady
violation lacks the split-second, life-or-death immediacy of a decision to use deadly force, it is still
the case that “[t]here is no reason to assume that police academy applicants are familiar with the
constitutional [disclosure requirements under Brady]. And, in the absence of training, there is no
way for novice officers to obtain the legal knowledge they require.” Connick, 131 S. Ct. at 1361.
Further, the failure to disclose exculpatory information could have serious consequences, such as
the conviction of an innocent person. It cannot be gainsaid, therefore, that “there is an obvious need
for some sort of training.” Ibid.
This analysis tracks Sixth Circuit authority. The court has held that a plaintiff can survive
summary judgment under City of Canton if he can show “that officer training failed to address the
handling of exculpatory materials and that such a failure has the ‘highly predictable consequence’
of constitutional violations of the sort Plaintiff suffered. . . . Widespread officer ignorance on the
proper handling of exculpatory materials would have the ‘highly predictable consequence’ of due
process violations.” Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir. 2006). Because the
Warren defendants have presented no evidence to suggest that the City of Warren provided any
formal training on Brady issues, the Court must deny the Warren defendants’ motion for summary
judgment on count XXII of the complaint.
b. Liability as policymaker
The Warren defendants further argue that the City of Warren cannot be held liable on the
theory that Ingles was the final policymaker, as Michigan state law and local ordinances provide that
the Warren Police Commissioner was the final policymaker for the police department and defendant

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Ingles was embedded in a chain of command at all times during his investigation. The plaintiff did
not respond specifically to that argument.
“A municipality may be liable under Section 1983 for actions of its authorized policymakers
‘where — and only where — a deliberate choice to follow a course of action is made from among
various alternatives by the official or officials responsible for establishing final policy with respect
to the subject matter in question.’” Adair v. Charter County of Wayne, 452 F.3d 482, 493 (6th Cir.
2006) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). A policymaker is the final
authority if his “‘decisions are final and unreviewable and are not constrained by the official policies
of superior officials.’” Ibid. (quoting Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir.
2001)). “Mere authority to exercise discretion while performing particular functions does not make
a municipal employee a final policymaker . . . .” Feliciano v. City of Cleveland, 988 F.2d 649, 655
(6th Cir. 1993). A final policymaker is more than a final decisionmaker; a final policymaker is
charged with the duty to “‘formulate[] plans for the implementation of broad goals.’” Miller v.
Calhoun County, 408 F.3d 803, 814 (6th Cir. 2005) (quoting Hager v. Pike County Bd. of Educ., 286
F.3d 366, 376 (6th Cir. 2002)). “[T]he identification of policymaking officials is a question of state
law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124-26 (1988) (examining city charter to
determine final policymaker on personnel administration issues).
The Warren defendants have provided ample evidence that defendant Ingles cannot be
considered to have been a final policymaker. The Warren City Code states that “police officers” are
“subject to such rules and regulations as the police commissioner shall promulgate” and are “under
the direction, supervision, and control of the police commissioner.” Warren City Code Sec. 26-16.
Defendant Ingles testified at his deposition that he was acting under the supervision of a sergeant,

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who reported to a lieutenant, who in turn was under the supervision of an inspector, who reported
to the chief, who reported to the police commissioner. It is difficult to see how Ingles could be
considered a final policymaker. The plaintiff has not disputed any of that evidence or come up with
any of his own to the contrary. The Court will grant the Warren defendants’ motion for summary
judgment on count XXIII of the complaint.
2. Liability for defendant Schultz’s destruction of evidence
The Warren defendants argue that the City cannot be liable under a Monell theory for Officer
Schultz’s destruction of evidence because the plaintiff cannot demonstrate an underlying
constitutional violation and the plaintiff has neither presented evidence of a policy or practice of
destroying evidence in violation of a court order nor identified a final policymaker responsible for
ordering the destruction of evidence in this case. The plaintiff responds by citing deposition
testimony by Officer Schultz that he was ordered to destroy this evidence.
The Sixth Circuit addressed this issue in Moldowan, when it observed that “the state violates
a suspect’s due process rights, regardless of the bad faith of the state actor, where material
exculpatory evidence is not preserved.” Moldowan, 578 F.3d at 392. The court also found that if
the destroyed evidence were merely potentially useful, rather than material, the plaintiff had to show
bad faith to make a case. Ibid. Although the court found that Moldowan could not maintain a claim
against Officer Schultz, it noted that the plaintiff “may be able to show that the individual with final
policy-making authority who directed . . . the destruction of the evidence was aware of the
materiality of the evidence, and thus did violate [the plaintiff’s] rights under Trombetta and
Youngblood.” Id. at 394 n.20 (internal quotation marks omitted). The court noted with concern that
“[d]espite extensive discovery, Moldowan has yet to identify the individual responsible for ordering

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the destruction of evidence”; the court nevertheless did not grant the defendants summary judgment
on this issue because it evaluated the record in the light most favorable to Moldowan. Id. at 394
n.219.
The plaintiff in this case points to testimony by Officer Schultz that he was given an order
to destroy the evidence in this case by either a sergeant or detective. However, Officer Schultz was
unable to identify precisely who gave that order, and the plaintiff has not come up with any
suggestion as to who it might have been. In the absence of some identification of who ordered the
destruction, it is difficult to see how the plaintiff can prove a final decision maker was the culprit.
And if there is no clue on who gave the order, the plaintiff cannot demonstrate that the person knew
that the evidence was material or destroyed it in bad faith. The only evidence that the plaintiff has
produced suggests that the individual who made the decision was likely not a final policymaker.
Officer Schultz testified at his deposition that the person who ordered the destruction was a sergeant
or a detective. Those are not final policymakers for the Warren Police Department. The plaintiff
has not presented sufficient evidence for a reasonable jury to find that the individual responsible for
the destruction of the evidence in this case was aware of the materiality of the destroyed evidence,
was acting in bad faith if the evidence was not material, or was a final policymaker for the City of
Warren. The Court will grant the Warren defendants’ motion for summary judgment on count
XXIV.
3. Warren’s liability for the plaintiff’s house arrest and second prosecution
The Warren defendants argue that the plaintiff’s claims arising out from his house arrest and
second prosecution should be dismissed because there is no evidence that the City was involved in

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the decision to keep the plaintiff under house arrest or to retry him. The plaintiff did not respond
to this argument.
As the Sixth Circuit has stated, one element of such a Fourth Amendment malicious
prosecution claim is that “the defendant ‘ma[d]e, influence[d], or participate[d] in the decision to
prosecute.” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d.
227, 237 (6th Cir. 2007)) (alteration in original). In the absence of any evidence that a defendant
participated in the decision to detain or prosecute the plaintiff, the plaintiff cannot prevail on a
Fourth Amendment malicious prosecution claim against that defendant. It is not necessary that the
defendant himself make the decision to prosecute the plaintiff; however, “[t]o be liable for
‘participating’ in the decision to prosecute, the officer must participate in a way that aids the
decision, as opposed to passively or neutrally participating.” Id. at 308 n.5. Although a malicious
prosecution claim may be sustained where an officer supplies false information to establish probable
cause, “an officer will not be deemed to have commenced a criminal proceeding against a person
when the claim is predicated on the mere fact that the officer turned over to the prosecution the
officer’s truthful materials.” Id. at 313-14.
Warren detective Mark Christian testified that although he was the officer assigned to the
Moldowan case after the convictions were overturned, he was not asked to reassess probable cause
and the decision to retry the plaintiff was made before the case was assigned to him. Detective
Christian explained that his role as the officer in charge was to act as a liaison between the
prosecutor and the police department and to locate witnesses and evidence to be used at trial. The
plaintiff has not identified any evidence that the City or Detective Christian participated in the
decision to place the plaintiff under house arrest or to retry the plaintiff, much less that the City

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participated in such a way that “aided” the decision. Nor has the plaintiff alleged that the City or
any of its police officers either fabricated or suppressed evidence at the plaintiff’s second trial. The
plaintiff’s failure to present even a “scintilla” of evidence to support its claim of liability against
defendant the City of Warren on counts XXV, XXVI, and XXVII requires that they be dismissed.
D. Statute of limitations
The Warren defendants argue that the plaintiff’s Brady claims and the claim against the City
of Warren based on the destruction of evidence are barred by the three-year statute of limitations for
tort claims in Michigan. The plaintiff agrees that a three-year statute of limitations applies in this
case. The question presented by the motion, therefore, is when the plaintiff’s claims accrued. The
Warren defendants argue that the plaintiff’s claims accrued on the date that his first conviction was
vacated, October 20, 2003; the plaintiff contends that his claims accrued on the date of his acquittal,
April 8, 2004.
The date on which a section 1983 claim accrues is determined by reference to federal law
and in accordance with common-law tort principles. Wallace v. Kato, 549 U.S. 384, 388 (2007).
“Under those principles, it is the standard rule that accrual occurs when the plaintiff has a complete
and present cause of action, that is, when the plaintiff can file suit and obtain relief.” Ibid. (internal
citations, quotations marks, and brackets omitted). That rule was complicated, however, by the
Court’s earlier decision in Heck v. Humphrey, 512 U.S. 477 (1994), in which the Court held that “a
§ 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does
not accrue until the conviction or sentence has been invalidated.” Id. at 489-90. The conviction is
invalidated when it “has been reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Id. at 487.
The plaintiff calls his continued detention and seizure without probable cause the “crux” of
his claim against the Warren defendants and argues that therefore his claim should not be considered
to have accrued until the date of his acquittal on April 8, 2004. Plainly, the plaintiff’s claims against
the Warren defendants based on his detention and second prosecution after his first conviction was
vacated hinge on the plaintiff’s alleged continued detention without probable cause. See Sykes, 625
F.3d at 308-09. The Warren defendants insist, however, that the plaintiff’s claims based on Brady
violations accrued on October 20, 2003, when the Macomb County circuit court granted the
plaintiff’s motion for relief from judgment and ordered a new trial. Because the present lawsuit was
not filed until March 15, 2007, the Warren defendants argue, it was filed out of time.
The Warren defendants reason that once the state court granted the plaintiff a new trial, any
bar imposed by Heck dissipated, because the plaintiff’s prior conviction that may have resulted from
failure to disclose exculpatory evidence “ha[d] been invalidated.” However, the plaintiff points out
that he is required to demonstrate the materiality of the withheld evidence, which could not have
been accomplished in the absence of his subsequent acquittal, and certainly was doomed to failure
if he had been convicted at a second trial when the withheld evidence was introduced.
Certainly, the plaintiff must establish that the withheld evidence was material to the question
of his guilt. See Bagley, 473 U.S. at 682; see also Kyles, 514 U.S. at 432-36. And the result of the
second trial would assist him in that pursuit immeasurably. But even if the plaintiff conceivably
could make out a Brady claim without the benefit of his subsequent acquittal, and the Court were

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to accept the Warren’s defendant’s premise that the Brady claims accrued before the plaintiff was
ultimately acquitted, the statue of limitations would not bar the Brady claim in this case.
Heck makes clear that a plaintiff cannot assert all the elements of a claim based on an
unconstitutional conviction or sentence until that conviction has been invalidated somehow once and
for all. The trial court’s order vacating the plaintiff’s conviction and granting him a new trial
certainly satisfies that requirement, but that order did not become final until the time for a
prosecution appeal expired. Cf. Gonzalez v. Thaler, --- U.S. ---, ---, 132 S. Ct. 641, 653 (2012)
(citing Clay v. United States, 537 U.S. 522, 527 (2003), and Jimenez v. Quarterman, 555 U.S. 113,
120-21 (2009)). Until that time, the conviction was subject to reinstatement by the Michigan courts,
and Heck’s bar had not been extinguished. If the prosecutor had appealed, no new trial could have
proceeded. See People v. George, 399 Mich. 638, 250 N.W.2d 491 (1977). Under Michigan law,
the prosecutor had six months to appeal that order to the state court of appeals. See Michigan Court
Rule 2.705(F)(3). Therefore, the order vacating the conviction did not become a final order until
six months after it was entered, which was April 20, 2004. Accepting the Warren defendants’
arguments, the plaintiff’s Brady claim would not have accrued any earlier than that. The
commencement of the lawsuit on March 15, 2007 was timely under the applicable three-year statute
of limitations for section 1983 claims. McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir.
1988). The Court finds that the defendants are not entitled to summary judgment on statute of
limitations grounds.
III.
The Court finds that the Warren Police Department is not a discrete entity capable of being
sued and it will be dismissed from the case. Defendant Ingles is not entitled to qualified immunity.

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The City of Warren can be held liable under a failure-to-train theory, but it cannot be held liable for
the actions of Ingles as a final policy maker. Similarly, the City cannot be held liable for Michael
Schultz’s destruction of evidence. The Warren defendants can have no liability for conduct related
to the States’s second prosecution of the plaintiff. The statute of limitations does not bar the
plaintiff’s claims against the Warren defendants.
Accordingly, it is ORDERED that the motion for summary judgment by defendants Donald
Ingles, Michael Schultz, Warren Police Department, and City of Warren [dkt. #95] is GRANTED
IN PART AND DENIED IN PART.
It is further ORDERED that the motions for summary judgment by defendants Macomb
County Prosecutor, County of Macomb, and Alan Warnick [dkt. #97, 100] are DISMISSED AS
MOOT.
It is further ORDERED that defendant Alan Warnick’s motion in limine [dkt. #98] is
DISMISSED AS MOOT.
It is further ORDERED that counts XXIII through XXVII of the complaint are
DISMISSED WITH PREJUDICE.
It is further ORDERED that counsel for the parties shall appear before the Court for a status
conference on December 17, 2012 at 3:00 p.m. to schedule the case for trial.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 14, 2012

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 14, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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