Newman v. Hamburg, Township of et al

Filing 27

ORDER granting in part and denying in part 21 Motion for Summary Judgment; adopting in part 24 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL NEWMAN,

Case No. 12-10258

Plaintiff,

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
TOWNSHIP OF HAMBURG, et al.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
______________________________/
ORDER ADOPTING IN PART AND DECLINING TO ADOPT
IN PART REPORT AND RECOMMENDATION [24] AND
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [21]
On March 3, 2014, the Magistrate Judge issued a Report and Recommendation
(“R&R”) [24] recommending that Defendant’s Motion for Summary Judgment [21]
be granted. On March 14, 2014, Plaintiff filed an Objection [25] to the R&R [24] and
on March 28, 2014 Defendants filed a Response [26]. For the reasons stated below,
the Court adopts in part and declines to adopt in part the R&R [24]. Plaintiff’s
Objection [25] is SUSTAINED and Defendant’s Motion for Summary Judgment [24]
is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
The Court adopts the explanation of facts set out in the R&R [15] as follows:
Plaintiff Daniel Albert Newman was convicted in the
Livingston County Circuit Court of second-degree murder in
connection with the death of Harry Chappelear on February 28,

1992. He was sentenced to 40 to 80 years imprisonment.
Following a direct appeal and state collateral proceedings, a grant
of habeas corpus in Newman v. Metrish, 492 F.Supp.2d 721 (E.D.
Mich. 2007), and affirmance by the Sixth Circuit in Newman v.
Metrish, 543 F.3d 793 (6th Cir. 2008), this Court granted a final,
unconditional writ of habeas corpus on March 16, 2009 in
Newman v. Metrish, E.D. Mich. No. 04-74582, 2009 WL 736820
(E.D. Mich., 3-16-09)(Tarnow, J). The writ was granted on the
basis that there was legally insufficient evidence to support a
conviction of guilt beyond a reasonable doubt. The facts brought
out at the criminal trial were comprehensively set forth in this
Court’s initial June 15, 2007 Opinion and Order Granting the
Petition for Writ of Habeas Corpus.1
Defendants Calhoun and DeBottis were the Hamburg
Township Police Officers who investigated the Chappelear
homicide. Plaintiff alleges that on February 9 and March 1, 1992,
they interviewed one Jamie Stoll, and that Stoll denied knowing
anything about the murder. However, says Plaintiff, Stoll
subsequently failed a polygraph examination in which he was
asked whether he murdered Chappelear, and whether he was
present or planned the murder. Complaint, ¶ 13.2 Plaintiff also

1

That Opinion and Order is appended to Defendants’ motion as Exhibit B and to
Plaintiff’s response [Doc. # 22] as Exhibit 1.
2

The report of the Stoll’s polygraph examination is attached to Plaintiff’s
response [Doc. #22] as Exhibit 6. Stoll answered “no” to each of the following questions:
“(1) Do you know for sure who shot Harry? (2) Did you shoot Harry? (3) when Harry
was shot were you there? (4) Did you plan with anyone to shoot Harry? (5) Concerning
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alleges that during the interview, these Officers “reached over
and grabbed a chunk of Stoll’s hair out of his head, without his
consent or a search warrant, and said they were going to analyze
it for DNA.” Id. ¶ 14.
Plaintiff alleges that on March 6, 1992, Calhoun and
DeBottis interviewed Ben Masters, Sr., a neighbor of Chappelear,
and that Masters told them that “on February 27 or 28, 1992,” he
spotted a black Blazer, driven by two or more white males in
their twenties with light brown hair, leaving the area of Ogemaw
Road and Cordley Lake Road. Master said that “that day or the
next day,” he heard gunshots coming from the area where he had
observed the Blazer. Id. ¶ 16. The area where he saw the Blazer
and heard the shots was about 75 feet from Chappalear’s
residence. Id ¶ 17.
Plaintiff alleges that on March 18, 1992, Defendant
Calhoun presented an affidavit for a search warrant for Gary
Kulpa’s black SUV and hair samples from Gary Kulpa, as well
as for a search warrant for Plaintiff’s person and house. Plaintiff
alleges that “on information and belief,” the same affidavit was
used to support the request for the warrant for his arrest. Id. ¶ 22.
Plaintiff alleges that Calhoun’s affidavit represented Masters’
statement as being “that on or about 5:00 p.m. on February 27,
1992,” he observed the black SUV on Cordley Lake Road.

Harry’s death are you telling me any deliberate lies?” The examiner concluded, “It is the
opinion of the undersigned examiner based upon the examination conducted, that the
above listed subject is not truthful regarding the issue.”
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Plaintiff alleges that “[t]he affidavit plainly misrepresented Ben
Masters, Sr.’s statement about the encounter with the dark SUV.
In fact Mr. Masters Sr. Stated that “unknown if (sic) was 2-27-92
or 2-28-92 what time he was getting ready to go to the party
store.” Id. ¶ 23 (emphasis in original).
Plaintiff states that at the time of his arrest, the Defendants
knew the following information:
A. That Plaintiff’s shoe size did not match that of the shoe
found in the blue gym bag that the police obtained;
B. The Plaintiff’s physical description did not match that of
the person reported to have been wearing the blue jacket. (The
police had received information from an unknown female
caller about that individual having been seen talking to
Chappelear at a bowling alley around Thanksgiving of 1991);
C. There was no physical evidence linking Plaintiff to the
murder;
D. There were no eyewitnesses to the murder;
E. Jamie Stoll failed a polygraph regarding his involvement in
the murder;
F. No witnesses observed Plaintiff in possession of the Ruger
9mm handgun shortly before or after the murder;
G. No witnesses placed Plaintiff near the scene of the murder
shortly before or after the murder. Id. ¶ 26.
Defendant Calhoun testified at his deposition that in this
case, he worked very closely with the elected prosecutor, David
Morse. He stated, “I have never worked more closely with a
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prosecutor on any case than I did on this case. We went through
every step of this step by step, fact by fact, document by
document with David Morse personally.” Defendants’ Exhibit J,
Calhoun Deposition, 35. The prosecutor’s office drafted the
affidavit in support of the search warrant. Id. 34. He said that he
was present at least two times when Jamie Stoll was interviewed,
and that he was aware that Stoll failed a polygraph examination.
He said, “I thought [Stoll] could have knowledge of the
homicide. He may have known who had done it, he may have a
greater role that what we are aware of.” Id. 50-52. Calhoun
testified that after Stoll failed the polygraph, he (Calhoun) cleared
up some inconsistencies in Stoll’s statements, and “felt confident
that he was not involved directly with the homicide, but whether
or no he had more information than he was sharing with me,
again to this day I don’t–I am uncertain.” Id. 53-56.
Calhoun testified that he was present when Stoll was
interviewed at the State Police Post, but neither Trooper
Cremonte nor anyone else pulled hair from Stoll’s head. Id. 5556. Calhoun stated that he “absolutely” informed Prosecutor
Morse that Stoll had failed a polygraph and had given
inconsistent statements. Id. 57.
As to the distinction between DeBottis’ notes of his
interview with Ben Masters, which indicates that Masters was not
sure if he saw the SUV on February 27th or 28th, and the
statement in Calhoun’s search warrant affidavit that Master saw
the SUV “on or about February 27th,” Calhoun testified that
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whatever DeBottis may have recalled about the Masters
interview, “My contemporaneous memorialization of my
recollection of that interview is contained in this affidavit. I
believe this to be true and accurate. I believe he had a more
definitive time from Mr. Masters, Sr.” Id. 65-66, 68. He said that
Prosecutor Morse told him that “the appropriate language to use
was on or about February 27th of 1992....” Id. 66.
Defendant DeBottis testified at his deposition that when he
interviewed Ben Masters, Sr., Masters said that he was unsure
whether he had seen the SUV on February 27th or 28th . DeBottis
Deposition, Plaintiff’s Exhibit 9 [Doc. #22], 27. He testified that
Calhoun also spoke with Masters, but that he (DeBottis) wrote
his report based on what he recalled Masters saying. He testified,
“I don’t know what Mr. Calhoun heard. I wrote this report based
on what Mr. Masters said.” Id. 28-29. DeBottis testified that he
did not observe anyone touch or pull Jamie Stoll’s hair during his
interview at the State Police Post. Id. 30-31. DeBottis stated that
Calhoun was the affiant on all of the search warrants in the case,
as well as the arrest warrant for Plaintiff. Id. 32. He said that he
was not aware of any additional information that was obtained
between the request for the search warrant and the request for the
arrest warrant. Id. 34-35. The fact that the weapon used to kill
Chappelear was traced to Plaintiff was in both affidavits. Id.
Plaintiff testified at his deposition that he was released
from prison on October 29, 2008. Plaintiff’s Deposition,
Defendants’ Exhibit I, 8. He stated that in 2010, he was focused
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on how he could get Jamie Stoll to “give him the information that
the police suppressed” from him. Id.49. He brought Stoll to his
attorney’s office to give a statement. Id. 73. He conceded that
Stoll had said under oath that neither Calhoun nor DeBottis took
the hair from him, and did not know whether the prosecutor was
aware that a hair sample had been secured from Stoll. Id. 50.
Plaintiff asked Stoll if he killed Harry Chappelear, and Stoll said
he had not. Nor did Stoll ever tell Plaintiff that he knew who the
killer was. Id. 72-73.
James (“Jamie”) Stoll was questioned under oath at
Plaintiff’s lawyer’s office on September 15, 2011. The transcript
is contained at Plaintiff’s Exhibit 5. He stated that the police
picked him up with regard to the Chappelear murder and took
him to a State Police Post, where he was interrogated and given
a polygraph exam. He was told that he failed the polygraph. Stoll
Transcript, 3-6. He said that on a second day of being
interviewed at the State Police Post, someone “snatched” his hair,
but it was not Calhoun or DeBottis. Id. 9-10.
In Count I of the complaint, Plaintiff claims that
Defendants violated the Fourth Amendment and Fourteenth
Amendment due process by failing to disclose to either
prosecutors or defense counsel exculpatory and impeachment
evidence, including the hair sample taken from Jamie Stoll.
Plaintiff also alleges in Count I that Calhoun and DeBottis
“deliberately and knowingly supplied false information...in
requesting an arrest warrant which was material to a finding of
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probable cause.” Id. ¶ 16. He claims that Defendant Township of
Hamburg “created policies, practices and customs, including a
failure to provide adequate training to its police officers,
including Defendants, Calhoun and DeBottis, regarding the
police department’s constitutional obligation to turn over
apparent exculpatory and impeachment evidence to the
prosecutors....” Id. Finally, in Count I, Plaintiff makes a claim of
malicious prosecution, “in violation of the Fourth Amendment,”
against Defendant Calhoun, alleging that Calhoun participated in
the decision to prosecute the Plaintiff in the absence of probable
cause.
In Count II, Plaintiff brings a claim of common law
malicious prosecution against Defendant Calhoun.
R&R [15] at 1–7.
LEGAL STANDARD
The Court reviews objections to an R&R on a dispositive motion de novo. 28
U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party has the
burden of establishing that there are no genuine issues of material fact, which may be

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accomplished by demonstrating that the nonmoving party lacks evidence to support
an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Court must construe the evidence and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
ANALYSIS
Plaintiff’s objections to the R&R are threefold and pertain only to his claims for
malicious prosecution against Defendant Calhoun. Plaintiff does not object to the
R&R’s recommendation to grant summary judgment in favor of all Defendants on his
Brady violation claim.
First, Plaintiff objects that the R&R engages in fact-finding—impermissible at
the summary judgment stage—when it concluded that Defendant Calhoun was entitled
to qualified immunity. Second, Plaintiff objects that the right to be free from arrest
and prosecution without probable cause was clearly established before March, 1992.
Third, Plaintiff objects that the Magistrate Judge, therefore, should have recommended
denying Defendant’s motion for summary judgment on his Fourth Amendment
malicious prosecution claim. The Court will address Plaintiff’s objections as they fit
into the de novo analysis of Defendants’ Motion [21] that follows.
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Malicious Prosecution Under Michigan Law
To establish a claim of malicious prosecution under Michigan law, Plaintiff
must show (1) that the prior criminal proceedings terminated in favor of plaintiff; (2)
absence of probable cause for those proceedings; (3) malice, defined as a purpose
other than that of securing the proper adjudication of the claim; (4) a special injury
that flows directly from the prior proceedings. Payton v. City of Detroit, 536 N.W.2d
233, 242 (Mich. Ct. App. 1995). The parties only dispute elements (2) and (3).
For the reasons stated in the R&R [24], the Court concludes that there is a
genuine question of material fact on element (2)—the issue of probable cause. See
[24] at 15–16.
Two pieces of evidence inculpating Plaintiff in Chappelear’s murder now bear
on element (3)—the question of Defendant Calhoun’s malice. The only evidence
putting Plaintiff near the scene of the murder are the mischaracterized testimony from
Ben Masters, Sr. and information allegedly from Kirk Johnson—Gary Kulpa’s
cousin—stating that Plaintiff had dogs who have fur with reddish accents. [21-13] at
6.
Defendant Calhoun and Defendant DeBottis interviewed Ben Masters, Sr. while
investigating this murder. According to DeBottis’ contemporaneous report of the
interview, Masters told Defendants that he saw a vehicle matching the description of
Kulpa’s vehicle on either February 27, 1992 or February 28, 1992 at an unknown
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time. [22-12]. Although DeBottis’ contemporaneous report was available to him,
Defendant Calhoun’s affidavit for search warrant states,
At approximately 5:00pm on or about February 27, 1992,
[Masters] was driving east on Cordley Lake Road near its
intersection when [Masters] observed [a vehicle matching the
description of Gary Kulpa’s vehicle with two white male
occupants with brown hair in their twenties].
[21-13] at 5.

Although, Calhoun claims the affidavit represents his personal

recollection, official police records do not match the affidavit for search warrant. The
discrepancy creates a question of material fact on the element of malice. Drawing all
facts in favor of Plaintiff, the Court concludes that a reasonable jury could find that
Defendant Calhoun was attempting to fabricate probable cause in order to procure a
warrant to search Plaintiff and his home to search for more evidence. In other words,
that Defendant Calhoun acted with “a purpose other than that of securing the proper
adjudication of the claim,” as the proper adjudication would require the existence of
probable cause to support a search warrant. Payton, 536 N.W.2d at 242; U.S. Const.
amend. IV. Defendant Calhoun may not escape liability at this stage by claiming that
he shaded an affidavit to the court on the advice of third-party Prosecutor David
Morse.
In a deposition taken for this case, Defendant Calhoun offered a post-hoc
explanation for the discrepancy between official police records and the affidavit. At
his January 21, 2013 deposition, Defendant Calhoun testified that he was at the
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intersection in question on February 28, 1992 around 4:30pm. It is unclear why
Calhoun would initially choose to mischaracterize Masters’ statement in the affidavit,
rather than faithfully relate the Masters interview and explain that Calhoun was at the
intersection on February 28, 1992 if that’s what actually happened. Without any
corroborating evidence for Calhoun’s claim that he was at the intersection on February
28, 1992, the Court sees a genuine question of material fact as to malice even with
Calhoun’s post-hoc explanation for mischaracterizing Masters’ statement in his
affidavit for a warrant.
Another piece of evidence connecting Plaintiff to victim Chappelear is a
statement allegedly given by Gary Kulpa’s cousin, Kirk Johnson, to Defendant
Calhoun. The affidavit states that Defendant Calhoun “has spoken with” Kirk
Johnson. The record does not clarify whether Defendant Calhoun ever spoke with
Kirk Johnson in person. Michigan Department of Corrections Offender Tracking
Information System (“OTIS”) lists “Kirk Alan Johnson” and “Kurt Johnson” as
aliases of Gary Kulpa.3 This means that the State of Michigan has officially
recognized that Gary Kulpa has used the alias “Kirk Johnson” for criminal endeavors.
According to the affidavit, Kirk Johnson told police officers that both he and Plaintiff
had purchased controlled substances from victim Chappelear. It is hard to see why

3

See Gary Joseph Kulpa’s OTIS profile page:
http://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=195666
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Kirk Johnson would voluntarily and unnecessarily inculpate himself while speaking
to a police officer. For purposes of the underlying murder investigation, all Kirk
Johnson would have had to say was that he knew victim Chappelear and so did
Plaintiff. Given that the evidence at that point most closely tied Gary Kulpa to the
murder, it is possible that a reasonable jury would find that Gary Kulpa had identified
himself as Kirk Johnson on the phone and gave Defendant Calhoun information
directing the investigation away from Kulpa.
Even if a jury believed Defendant Calhoun had spoken with the actual Kirk
Johnson, a reasonable jury could decide that a police officer with ten years of
experience would not rely on information from a family member of a suspect when
trying to “secur[e] the proper adjudication of the claim.” Again, the Court sees a
question of fact on the element of malice.
In Michigan, government actors are entitled to governmental immunity for
intentional torts if:
(a) The acts were undertaken during the course of employment and
the employee was acting, or reasonably believed that he was acting,
within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken
with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne County, 760 N.W.2d 217, 228 (Mich. 2008). The good faith
requirement means that “there is no immunity when the governmental employee acts

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maliciously or with a wanton or reckless disregard of the rights of another.” Id., at
225 (emphasis in original) (footnote omitted). As demonstrated supra, there remains
a question of fact on whether Defendant Calhoun was attempting to secure a search
warrant without probable cause, an act that would show reckless disregard for
Plaintiff’s Fourth Amendment rights. See supra, p. 5. Therefore, Defendant Calhoun
is not entitled to governmental immunity because there is a genuine question of
material fact regarding his good faith.
§ 1983 Malicious Prosecution Under Federal Law
To establish a claim for malicious prosecution under the Fourth Amendment
Plaintiff must show (1) The defendant “ma[d]e, influence[d], or participate[d] in the
decision to” initiate criminal prosecution against the plaintiff; (2) there was no
probable cause; (3) Plaintiff suffered a “‘deprivation of liberty’ . . . apart from the
initial seizure” as a consequence of the prosecution; and (4) the criminal prosecution
was resolved in plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir.
2010). It is undisputed that Plaintiff has established elements (1), (3), or (4) and, as
stated in the R&R [24], Plaintiff has established a question of material fact as to
element (2) of the Fourth Amendment malicious prosecution claim. [24] at 17. The
R&R, however, goes on to recommend granting summary judgment in favor of
Defendant on the basis of qualified immunity. Upon de novo review, the Court
disagrees for the reasons that follow.
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Qualified Immunity
Defendants argue that they are entitled to summary judgment on Plaintiff’s
malicious prosecution claim because they are protected by qualified immunity.
Qualified immunity analysis involves two questions: (1) did the defendant violate a
constitutional right and (2) was the right clearly established to the extent that a
reasonable person in the defendant’s position would know that the conduct
complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 121 (2001). Third, the
Court determines “whether the plaintiff has alleged sufficient facts, and supported the
allegations by sufficient evidence, to indicate that what the official allegedly did was
objectively unreasonable in light of the clearly established constitutional rights.”
Dickerson v. McClellan, 101 F.3d 1151, 1157–58 (6th Cir. 1996).
First, as stated previously in this Order at 11 and the R&R [24] at 15–16, there
is at least a question of fact about whether Plaintiff was prosecuted absent probable
cause—a Fourth Amendment violation.
Second, the Fourth Amendment itself, dating to 1789, states “no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
Therefore, in 1992, a reasonable police officer in Defendant Calhoun’s position would
know that he needed probable cause to support an affidavit for a search warrant.
Plaintiff’s second objection is well-taken.
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Third, Plaintiff must show that Defendant Calhoun’s actions were objectively
unreasonable in light of the clearly established constitutional rights. “The question
is whether the undisputed facts ‘demonstrate that a hypothetical reasonable officer’
would have known that his actions, under the circumstances, were objectively
unreasonable,” Lyons v. City of Xenia, 417 F.3d 565, 576 (6th Cir. 2005) (internal
citation omitted). The subjective motivations of the official are irrelevant to the third
prong of the qualified immunity inquiry. Graham v. Connor, 490 U.S. 386, 397
(1989).
Here, there are two lines of relevant undisputed facts. The first line is that
Defendant DeBottis’ Report [22-12] was the official police record of Ben Masters,
Sr.’s statement to the police, that DeBottis’ Report was available to Defendant
Calhoun at all relevant times, that Calhoun’s affidavit for search warrant differed from
the official police record regarding Masters’ statement. The second line of relevant
facts is that there was physical evidence connecting Kulpa with the murder, yet
Calhoun relied on statements allegedly made by Kulpa’s family member instead of
relying on the physical evidence to direct the investigation toward Plaintiff. In an
affidavit for search warrant in a murder case, it is objectively unreasonable for a tenyear veteran to swear to facts disputed by police records that were readily available
to him, without further explanation. Even if Calhoun subjectively believed Masters
saw Kulpa’s car on February 27, 1992, Calhoun still mischaracterized Masters’
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statement in the affidavit. To a lesser extent, it is also objectively unreasonable to rely
completely on the statement of a family member of the person most inculpated by the
physical evidence to steer the investigation.
The R&R reasoned that because several courts have disagreed about whether
probable cause existed in this case, Defendant Calhoun’s actions were not “objectively
unreasonable.” The R&R’s logic is unpersuasive. In his direct appeal, the Michigan
Court of Appeals misstated the evidence against Plaintiff in several instances as
stronger than it actually was. See People v. Newman, No. 165208 (Mich.Ct.App. July
2, 1999) 1999 WL 33439648 (e.g., mistakenly stating Plaintiff was jealous and
possessive, when Plaintiff’s girlfriend testified to the opposite; mistakenly stating that
hair recovered from the ski mask matched petitioner's hair when forensic analysis
could not confirm that; mistakenly stating that Plaintiff had “repeatedly” asked a
friend for the names of any drug dealers he could rob for drugs or money when
Plaintiff had only expressed interest in burglarizing dealers’ homes once). Therefore,
that court’s legal conclusions as derived from misstated facts do not bear on the case
at bar. Similarly, the Court presumes that the Michigan Supreme Court’s decision to
deny Plaintiff’s discretionary appeal was at least partially based on the Michigan
Court of Appeals’ faulty summation of the case, otherwise it would have been clear
that Plaintiff’s direct appeal had merit (given, that Plaintiff was later able to overcome
the higher hurdles involved in his federal habeas claims).
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Plaintiff objects that the Magistrate Judge engaged in impermissible factfinding when it stated that the Masters statements “likely did not play a significant
role in the judge’s probable cause determination.” [24] at 20. The Court agrees. Factfinding is improper at the summary judgment stage. Additionally, the R&R utilized
a harmless-error analysis to find that Calhoun’s actions were not objectively
unreasonable when it reasoned that the inclusion of the mischaracterized Masters
testimony likely did not influence the judge’s decision. Harmless-error analysis is
improper in the third prong of the qualified immunity inquiry. Again, “[t]he question
is whether the undisputed facts ‘demonstrate that a hypothetical reasonable officer’
would have known that his actions, under the circumstances, were objectively
unreasonable,” Lyons, 417 F.3d at 576. The inquiry is about knowledge and intent,
not effect. Even if probable cause existed absent Masters’ mischaracterized statement,
that would be no excuse if a jury found that Calhoun deliberately mischaracterized
Masters’ statement in the affidavit.
CONCLUSION
For the foregoing reasons, the Court hereby adopts in part and declines to adopt
in part the Report and Recommendation [24]. Accordingly,
IT IS ORDERED that Plaintiff's Objection [25] is SUSTAINED.
IT IS FURTHER ORDERED that Defendant's Motion for Summary

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Judgment [21] is GRANTED as to Plaintiff’s Brady violation claim and DENIED as
to Plaintiff’s claims for malicious prosecution.
IT IS FURTHER ORDERED that Defendant Township of Hamburg and
Defendant Patrick Debottis are DISMISSED.
SO ORDERED.
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

Dated: April 4, 2014

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