Legenzoff v. Steckel et al

Filing 83

OPINION AND ORDER granting 67 Motion for Summary Judgment as to Defendants Susan Bowlin and City of Fraser. Signed by District Judge Marianne O. Battani. (BThe)

UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES LEGENZOFF,
Plaintiff,
v.

CASE NO. 2:11-cv-11405

MICHAEL STECKEL, et al.,

HON. MARIANNE O. BATTANI

Defendants.
_________________________________/
OPINION AND ORDER GRANTING DEFENDANTS SUSAN BOWLIN
AND CITY OF FRASER’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants Susan Bowlin and City of Fraser’s
Motion for Summary Judgment. (Doc. 67). On April 4, 2011, Plaintiff James Legenzoff
filed a complaint against six municipalities and seven individual police officers alleging
unlawful arrest, use of unduly suggestive identification procedures, and malicious
prosecution without probable cause.

The complaint also sought § 1983 damages

against the municipalities based on their unconstitutional practice, policy, or custom of
inadequate training and/or supervision of the officers under Monell v. Dept. of Soc.
Servs., 436 U.S. 658 (1978). Legenzoff abandoned his Monell claims. (Doc. 71 at 1).
For the reasons stated below, the Court GRANTS Defendants Susan Bowlin and City of
Fraser’s motion.
I.

STATEMENT OF FACTS
A.

Background

This case arises out of the misidentification of Plaintiff James Legenzoff as the
“Suave Senior,” an elderly man allegedly responsible for numerous thefts around the

Detroit area. The thefts had the same modus operandi and began in the summer of
2007 in Warren, Michigan. Witnesses described the suspect as a white male in his
seventies with white hair, about 5’10” and weighing 170 pounds. (Doc. 1 at 6). The
suspect allegedly knocked on the victim’s door and identified himself as a neighbor. (Id.
at 7).

He then invited himself in for coffee, and after excusing himself to use the

bathroom, stole money or personal items from the house. (Id.)
On August 29, 2007, Warren police questioned Legenzoff at a truck dealership.
(Id.) They obtained his driver’s license photograph and presented it to witnesses who
were unable to identify him as the perpetrator. (Id.) This photograph aired on the news.
(Id.)

When similar larcenies occurred in St. Clair Shores, Warren police shared

Legenzoff’s photograph and information with St. Clair Shores police. This information
eventually made its way to Canton Township, Redford Township, Fraser, Roseville, and
Harper Woods.
B.

Fraser Email

On December 18, 2008, Fraser police received report of a theft from Concetta
Miramonti. (Doc. 67 at 1). Officer Paul Baranski was dispatched to the residence to
investigate. Ms. Miramonti reported that a white male age 70, 5’4’ weighing 150 pounds
with brownish hair had previously approached her at a market and asked for her phone
number. Unexpectedly, the man later came to her home and she invited him in for
coffee. This occurred several times. Each time, the man had excused himself to use
the restroom repeatedly during the visit. After the last visit, Ms. Miramonti noticed a
large sum of money missing from her dresser drawer.

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On December 30, 2008, Fraser Detective Susan Bowlin, otherwise unaware of
the Miramonti complaint, received a phone call from Detective Sergeant Keith Waller of
the Roseville Police Department. (Id. at 2). Waller informed Bowlin that similar crimes
with the same modus operandi had occurred in other towns, and that Canton police had
arrested Legenzoff for those crimes. He also noted that the daughter of Miramonti,
Phyllis Purcell, had sent out an email to several police departments in the area with the
story of her mother. The email also contained an article from McComb Daily newspaper
with details about the crimes that had occurred. Bowlin then studied the Miramonti
complaint and searched the CLEMIS system for photographs of Legenzoff. She located
four arrest photographs from other jurisdictions.

Bowlin also received a copy of

Purcell’s email.
Next, Bowlin contacted Sergeant David Centala of St. Clair Shores police who
informed her that Legenzoff was identified by officers after they observed him leaving
the home of an alleged victim in Warren. (Doc. 71, Ex. 36, p. 69). She confirmed this
information with Warren Detective Mark Christian. Bowlin then contacted Purcell to
notify her that another locale had arrested the person suspected of the crimes. She
also asked if Ms. Miramonti would view a photo array to identify a suspect.
Bowlin created a photo array using the CLEMIS system which contained
Legenzoff’s photo.

Before the array was administered to Ms. Miramonti, Bowlin

informed her that she didn’t want a guess and that “if the person is not in this array,
that’s okay.” (Id. at p. 83). After about a minute, Ms. Miramonti identified Legenzoff.
Bowlin then notified her that he was the man arrested for similar crimes in other
municipalities.

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C.

The Warrant and Arrest

Based on the identification, Bowlin submitted a warrant request. (Id. at Ex. 40).
This included her report, witness statements, the email from Purcell, the McComb Daily
article, and the photo array. After the warrant was issued in January 2009, Legenzoff
was arrested. However, the charges were dropped for various reasons.
D.

The Complaint

On April 4, 2011, Legenzoff filed a 42 U.S.C. § 1983 complaint against the
municipalities and individual officers alleging unlawful arrest, use of unduly suggestive
identification procedures, and malicious prosecution without probable cause in violation
of the Fourth and Fourteenth Amendments.
II.

STANDARD OF REVIEW

Summary judgment is appropriate only when there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).

The central inquiry is “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). Rule 56 mandates summary judgment against a party who fails to establish the
existence of an element essential to the party's case and on which that party bears the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this
burden, the non-movant must come forward with specific facts supported by affidavits or
other appropriate evidence establishing a genuine issue for trial.

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Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1)(A).
In evaluating a motion for summary judgment, the evidence must be viewed in the light
most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). The Court “must lend credence” to the non-moving party’s interpretation of
the disputed facts. Marvin v. City of Taylor, 509 F.3d 234, 238 (6th Cir. 2007) (citing
Scott v. Harris, 127 S.Ct. 1769, 1775 (2007)). The mere existence of a scintilla of
evidence in support of the non-moving party's position will not suffice. Rather, there
must be evidence on which the jury could reasonably find for the non-moving party.
Hopson v.DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).
III.

ANALYSIS

Legenzoff’s claims are dependent upon whether sufficient probable cause
existed to request a warrant. See Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006)
(reversing district court’s denial of qualified immunity because defendants had probable
cause to arrest plaintiff). He argues questions of fact exist regarding the validity of the
identification procedures along with the constitutionality of the steps taken, or lack
thereof, to determine probable cause. Bowlin raised the defense of qualified immunity,
which also turns on the sufficiency of probable cause.
“Probable cause is defined as reasonable grounds for belief, supported by less
than prima facie proof, but more than mere suspicion.” United States v. McClain, 444
F.3d 556, 562 (6th Cir. 2005) (quoting United States v. Ferguson, 8 F.3d 385, 392 (6th
Cir. 1993)). To determine whether probable cause exists, the court must examine the
totality of the circumstances and whether the facts and circumstances known to the

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officer were “sufficient to warrant a prudent person” to believe that the individual
committed the offense. Hinchman v. Moore, 312 F.3d 198, 205-06 (6th Cir. 2002).
A claim of unlawful arrest “requires a plaintiff to prove that the arresting officer
lacked probable cause.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th
Cir. 2005). In order to prevail on a claim of malicious prosecution under § 1983, the
plaintiff must show four elements:
First, the plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant “ma[d]e, influence[d], or
participate[d] in the decision to prosecute.” [citations omitted]. Second,
because a § 1983 claim is premised on the violation of a constitutional
right, the plaintiff must show that there was a lack of probable cause for
the criminal prosecution. [citations omitted]. Third, the plaintiff must show
that, “as a consequence of a legal proceeding, “the plaintiff suffered a
“deprivation of liberty,” as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure. [citations omitted]. Fourth,
the criminal proceeding must have been resolved in the plaintiff’s favor.
[citation omitted].
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010).
Public officials engaged in the performance of discretionary functions are entitled
to qualified immunity from civil liability to the extent “their conduct does not violate
clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immunity
protects “all but the plainly incompetent or those who knowingly violate the law.” Malley
v. Briggs, 475 U.S. 335, 341 (1986). An official who violates a clearly established right
may not rely on the defense of qualified immunity. See Camreta v. Greene, 131 S.Ct.
2020, 2030-31 (2011). Thus, in order to overcome such a defense, a plaintiff must
demonstrate that a constitutional violation has occurred and that the right was clearly
established at the time it was violated. Saucier v. Katz, 533 U.S. 194, 201 (2001).

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Legenzoff sets forth two theories in order to demonstrate a constitutional
violation: (1) Bowlin acted without probable cause in seeking a warrant and (2) Bowlin
created an unduly suggestive photo array in order to secure a false identification.
Regarding the photo array, Legenzoff asserts it was unduly suggestive because it was
in black and white.
A.

Probable Cause

The right to be free from warrantless arrest without probable cause is an actual
constitutional right clearly established under the Fourth Amendment. See Gardenhire v.
Schubert, 205 F.3d 303, 313 (6th Cir. 2000). Therefore, Legenzoff must demonstrate
that Bowlin did not have sufficient probable cause when she requested the warrant. In
support of his argument of insufficient probable cause, Legenzoff identifies numerous
errors: (1) Ms. Miramonti knew who the suspect was before the photo array, (2) the
array was in black and white, which necessarily did not match Ms. Miramonti’s
description of the suspect’s brownish hair, and (3) Bowlin provided post identification
feedback to Ms. Miramonti after she identified Legenzoff. Legenzoff asserts Bowlin’s
knowledge of these combined errors negates probable cause.
Legenzoff’s contention that because Bowlin spoke with Purcell before the array,
Ms. Miramonti “(1) knew who the suspect was; (2) knew that he had been arrested by
another police department; (3) and knew that the purpose of the lineup procedure was
‘to ID the suspect that had come into her home’” is misplaced. (Doc. 71 at 62). Bowlin
did not tell Purcell or Ms. Miramonti the name of the suspect or his description.
Likewise, the McComb Daily article did not provide Legenzoff’s name. Ms. Miramonti
understood that Bowlin was going to show her an array that may or may not include the

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man she encountered. See (Id. at Ex. 36, p. 83). Thus, there is no evidence Ms.
Miramonti’s identification was tainted in any fashion detrimental to probable cause.
In addition, the fact that the photo array did not completely conform to the
description provided by Ms. Miramonti is of no import. Legenzoff asserts the photo
array was misleading because Ms. Miramonti described the suspect as having
“brownish” hair, but the photo array pictures were black and white. However, Bowlin’s
comment to Ms. Miramonti that “if the person is not in this array, that’s okay”
undermines Legenzoff’s claim. Ms. Miramonti understood that the person may not be
among those pictured. Without examining Legenzoff’s actual hair color, the Court finds
no error in using the black and white photo array. Such is common practice, and there
is no authority to the contrary. See Velazquez v. Poole, 614 F. Supp. 2d 284, 301
(E.D.N.Y. 2007) (“Case law has developed no requirement, however, that photos in an
array present only individuals who match petitioner’s appearance in every detail.”). In
addition, the use of the black and white array did not create a substantial likelihood of
identification. Manson v. Brathwaite, 432 U.S. 98, 109-14 (1977); see also Mikel v.
Thieret, 887 f.2d 733, 738 (7th Cir. 1989). Certainly, the suspect’s hair color was not
the only factor upon which Ms. Miramonti based her identification. She met with the
suspect several times for at least forty-five minutes, giving her ample time to remember
the facial characteristics of the man she encountered.

Eyewitness statements are

presumptively reliable. See Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). Thus,
Bowlin was entitled to rely upon the identification regardless of whether the photos were
in color or black and white.

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Last, Legenzoff contends Bowlin did not have probable cause because Ms.
Miramonti received post identification feedback after her identification.

There is no

authority that prohibits officers from providing post identification feedback to witnesses
and Legenzoff cites none. In addition, there is nothing to suggest that anything Bowlin
said to Ms. Miramonti retroactively affected her decision. The expert report relied upon
by Legenzoff is not entitled to any controlling weight.
Consequently, viewed from the totality of the circumstances, it is clear Bowlin
had probable cause based on her reasonable belief that Legenzoff was the perpetrator.
The crimes carried a similar modus operandi and any doubts would have been dispelled
by confirmations that Legenzoff was arrested from Detectives Waller and Centala.
Bowlin acted as a reasonable officer under the circumstances, and a reasonable jury
could not find a lack of probable cause to support the warrant request.
B.

Unduly Suggestive Identification Procedures

It is undisputed that Bowlin is a public officer and conducting a photo array falls
within her discretionary authority as a detective. Therefore, it falls upon Legenzoff to
demonstrate Bowlin violated a clearly established “constitutional right of which a
reasonable person in the official’s position would have known.” Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006).

In determining the issue of qualified

immunity, the court “must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all, and if so, proceed to determine
whether the right was clearly established at the time of the alleged violation.” Conn v.
Gabbert, 526 U.S. 286, 290 (1999).

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Legenzoff failed to allege a deprivation of an actual constitutional right regarding
his claim that the right to be free from unduly suggestive identification procedures is an
independently actionable right under § 1983. Legenzoff argues such a right exists and
it is clearly established that “the manipulation of a photo line-up to produce a false
identification from an eyewitness constitutes a violation of due process rights secured
by the Fourteenth Amendment, which is actionable under 42 U.S.C. § 1983.” (Doc. 58
at 10). Although Legenzoff relies upon Manson v. Brathwaite, 432 U.S. 98 (1977) and
Good v. Curtis, 601 F.3d 393 (5th Cir. 2010) for support, his reliance is misplaced. In
Brathwaite, the Supreme Court held that witness identifications resulting from unduly
suggestive identification procedures must be excluded from evidence, not that an
independently actionable constitutional right to be free from such procedures exists.
In Good, the officer intentionally framed the defendant by manipulating his photo
to resemble the victim’s description. Id. at 396. The officer told the defendant that he
was going to “fix” the photo by altering the lighting to make it match the “dark tan” skin
described by the victim. Id. The defendant was identified in a live array and then
convicted, but exonerated by DNA evidence nearly 20 years later. Id. at 397. More
importantly, in determining the conduct of the officer was a violation of due process
under the Fourteenth Amendment, the court in Good stated:
The reason for the misidentification, we must assume at this summary
judgment juncture, was [the officer’s] concerted efforts to manipulate the
photo.
The Supreme Court’s “suggestive array” suppression test
announced in Manson v. Brathwaite, 432 U.S. 98 (1977), is not designed
for and does not apply in the context of a § 1983 suit following a DNA
exoneration for a conviction derived from police conduct intentionally
designed to procure a false identification by unlawful means.

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601 F.3d at 398 (emphasis added). It is clear the court did not rely on the unduly
suggestive identification procedure in its conclusion.

Instead, the court found the

“concerted effort on the part of a police officer to ‘frame’ a suspect by manipulating a
photo for a photo array to produce a false identification from an eyewitness constitutes a
violation of the due process rights secured by the Fourteenth Amendment.” Id.
Nowhere does the court endorse a right to be free from unduly suggestive
identification procedures actionable under § 1983 independent of the exclusionary rule.
Legenzoff cites no other authority in support of his argument that such a substantive
due process right exists.

Thus, because the right does not exist, it precludes the

Court’s inquiry regarding whether it is clearly established. See United States ex rel.
Kirby v. Sturges, 510 F.2d 397, 406 (7th Cir. 1975) (holding that there is no such Due
Process violation resulting from unduly suggestive identification procedures until it is
used against a defendant in a criminal trial); Gregory v. City of Louisville, 444 F.3d 725,
747 (6th Cir. 2006) (noting that “[i]t is true that an unduly suggestive identification does
not, in and of itself, violate constitutional rights” and “the prosecution’s use of the
identification at trial is a necessary intervening act for injury to occur and liability for any
party to attach”) (emphasis added); Pace v. City of Des Moines, 201 F.3d 1050, 1055
(8th Cir. 2000) (“In the context of unduly suggestive arrays, only a violation of the core
right – the right to a fair trial – is actionable under § 1983.”). Having concluded the right
to be free from unduly suggestive identification procedures is not a substantive due
process right, the Court need not address whether Bowlin’s photo array was
unconstitutional for purposes of Legenzoff’s § 1983 claim.

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C.

Qualified Immunity

Regardless of whether Legenzoff can show a constitutional violation, Bowlin is
entitled to qualified immunity. Qualified immunity protects law enforcement officials who
“‘reasonably but mistakenly conclude that probable cause is present.’” Hunter v. Bryant,
502 U.S. 224, 227 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The
record clearly demonstrates that Bowlin acted as a reasonable officer during her
investigation of Legenzoff and believed her actions to be lawful in light of the totality of
the circumstances. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).
IV.

CONCLUSION

Accordingly, Defendants’ motion for summary judgment is GRANTED.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

DATE: March 27, 2013
CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Opinion and Order was
served upon all parties of record via the Court’s ECF Filing System.
s/Bernadette M. Thebolt
Case Manager

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