Newell v. Wayne, County of et al
ORDER Denying Summary Judgment Motion filed by IRA Todd 120 , Denying Summary Judgment Motion filed by Dennis Richardson 124 , Granting Remaining Summary Judgment Motions 121 , 122 , and 123 and Denying Motion for Order 138 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-14928
Honorable Denise Page Hood
COUNTY OF WAYNE, RAY
JOHNSON, ALEX CHAHINE,
IRA TODD, BENNY NAPOLEON,
DENNIS RICHARDSON, and DON
ORDER DENYING SUMMARY JUDGMENT
MOTION FILED BY IRA TODD [Dkt. No. 120],
DENYING SUMMARY JUDGMENT MOTION
FILED BY DENNIS RICHARDSON [Dkt. No. 124],
GRANTING REMAINING SUMMARYJUDGMENT
MOTIONS [Dkt. Nos. 121, 122, and 123] and DENYING
MOTION FOR ORDER [Dkt. No. 138]
Plaintiff Renee Newell filed this 42 U.S.C. § 1983 action on November 5, 2012,
alleging that Defendants violated her constitutional rights when they obtained an
illegal search warrant from a state court magistrate pursuant to an application that
contained intentionally false statements and omissions.
On April 11, 2016, Defendant Ira Todd (“Todd”) filed a Motion for Summary
Judgment. [Dkt. No. 120] On April 15, 2016, Defendants Benny Napoleon
(“Napoleon”) and County of Wayne (“Wayne County”) filed a Motion for Summary
Judgment [Dkt. No. 121], Defendants Alex Chahine (“Chahine”) and Ray Johnson
(“Johnson”) filed a Motion for Summary Judgment [Dkt. No. 122], Defendant Don
Farris (“Farris”) filed a Motion for Summary Judgment [Dkt. No. 123], and Defendant
Dennis Richardson (“Richardson”) filed a Motion for Summary Judgment. [Dkt. No.
124] Plaintiff filed a response to the motions filed by Todd, Richardson, and
Napoleon and Wayne County, and those Defendants have filed reply briefs. Plaintiff
did not file a response to the motions filed by Farris or Chahine and Johnson. The
Court held a hearing on the motions on July 27, 2016. On August 4, 2016, a Motion
for Order Regarding Exhibit 7 to Docket Number 131 was filed by Napoleon,
Richardson and Wayne County. [Dkt. No. 138]
For the reasons that follow, the Court grants the summary judgment motions
filed by Napoleon and Wayne County, Richardson, Chahine and Johnson, and Farris.
As to Todd and Richardson, Plaintiff alleges and offers evidence that Todd included,
and Richardson was aware of, several erroneous statements in the search warrant
affidavit. Whether such errors were simply negligent, reckless or intentional is a
question for the trier of fact and the summary judgment motions filed by Todd and
Richardson are denied. The Court also denies the motion for order filed by Napoleon,
Richardson and Wayne County.
Plaintiff was employed by the Wayne County Sheriff’s Department (the
“Department”) as the Jail Monitor/Internal Compliance Manager for the Wayne
County Jail until she was fired on May 26, 2012. According to Plaintiff, she was fired
for blowing the whistle on wrong-doing with jail commissary funds and hiring;
according to Defendants, she was fired for violating jail policy, engaging in
misconduct, and lying during an internal affairs investigation. About two months
after she was terminated, Plaintiff became the subject of an investigation into various
communications made to Napoleon and others, some of which indicated that Eric
Smith (who was then an executive in the Sheriff’s Department) needed to be fired.
Dkt. No. 129, Ex. 2, at 37.
On July 20, 2012 a defamatory e-mail, with a PDF attachment, was sent by a
person identified under the fictitious name Tom_Truth falsely accusing the Sheriff’s
Executive Chief, Eric Smith of being arrested and charged by the U.S. attorney on
federal drug offenses (the “Tom_Truth email”). Dkt. No. 124, Ex.1. The email, which
was sent to the private and county email addresses of Sheriff Napoleon and members
of his command staff, stated the following:
Enclosed you will find an authentic criminal docket of an open federal
criminal case against your Executive Chief of the Wayne County
Sheriff’s Office, Eric V. Smith. In 1995, Smith was caught, arrested, and
charged with being in the possession of cocaine with the intent to
distribute. Being that you are affiliated with the Wayne County Sheriff’s
Office, I believe you should be made aware of this critical information
about your Executive Chief. Note that a $50,000 unsecured bond was
posted and the case froze, open. That can only happen with a large
amount of money and superior connections. Nevertheless, the fact
remains that Wayne County Sheriff’s Executive Chief Eric V. Smith was
Office of U. S. Attorney, 313-226-9100.
Todd maintains that whoever sent or assisted in sending the email had access to both
county and personal email addresses of command staff and appointees. Dkt, No. 124,
Ex. 2 at 99. The Tom_Truth email referenced a criminal docket sheet from PACER
(USA v. Smith, Case No. 95-mj-80993) that was included as an attachment saved as
a PDF. The docket showed Eric V. Smith as the defendant in a criminal prosecution
by the United States Attorney for federal drug charges. Dkt. No. 124, at Ex. 1.
Soon after the Tom_Thumb email, Napoleon began to receive text messages to
his personal cell phone that said that, unless Napoleon fired Eric Smith, his political
career would be over. Dkt. No. 124, at Ex. 3. When Napoleon began receiving the
texts on July 23, 2012, the person sending the texts did not give any name.
Investigators only became aware of the name “Michael Bowles” (later determined to
be Sam Saleh) after Newell’s home was searched. Dkt. No. 124, Ex. 2 at 158, 239; Ex.
5 at 110. The texts, which came from cell phone number (248) 579-3263 stated the
Your political career is at stake. You need to call for Erics resignation.
Your voting block will not support you after the series of news
releases...” (Sent July 23, 2012)
We are allowing you to step forward without PAIN and SHAME. We are
prepared for any resistance…” (Sent July 23, 2012)
Wish you well BEFORE PRIMARY. By the way Eric and Art Blackwell
had an interesting conversation that was picked up. We gave advance
warning. You have been QUOTED via your text “I WILL GO DOWN
WITH THE SHIP I sincerely hope you can defend ES fraudulent
activities. (Sent July 30, 2012)
Do self a favor Eric leaves save your career. FBI is on your office. This
is why 7 News held off reporting. You do not want the skeletons out. Yes
we have 20 years of your misconduct acts. (Sent August 2, 2012.)
Dkt. No. 124, Ex. 3. At some point, Napoleon spoke on the phone with the person later
known as Michael Bowles, and Napoleon told that person he knew that such person
was responsible for the Tom-Truth email. Docket No. 129, Ex. 7. Napoleon ordered
an investigation shortly after receiving the first two texts and the Tom_Truth email.
Dkt. No. 124, Ex. 4 at 37-38. The investigation was unusual in that it was directly
ordered by Napoleon. Dkt. No. 129, Ex. 1 at 30-31.
Richardson, the Deputy Chief, oversaw the investigation, and he received and
reviewed reports and directed activities. Dkt. No. 129, Ex. 1, at 25-26, 29, 35; Ex. 3
at 27, 29, 34, 36, 39-40; Ex. 4 at p. 63. The investigation was kept confidential—even
within the Department and its Internet Crimes Unit (“ICU”). Dkt. No. 129, Ex. 3 at
34; Ex. 5 at 13). Todd, a Detroit Police Department officer on special assignment to
the Department, was the officer in charge of the investigation, and he reported directly
to Richardson. Dkt. No. 129, Ex. 3 at 36; Ex. 1 at 163, 166; Ex. 12 at 42). Richardson
contacted the ICU and asked Sgt. William Liczbinski (“Liczbinski”), supervising
officer of the ICU, to review the Tom_Truth email and determine whether he could
identify who sent it. Dkt. No. 129, Ex. 1 at 48; Dkt. No. 124, Ex. 6 at 28.
Liczbinski told Richardson that he could not determine who authored or sent
the email because it was sent through a TOR server, which anonymizes emails. Dkt.
No. 129, Ex. 4 at 28-31, 34, 37-46, 51-54, 69-75. According to Liczbinski, it was
virtually impossible to find out the identity of a person sending email through a TOR
network because the message would travel through a channel of hundreds of
thousands of computers all over the world, bouncing from server to server, becoming
encrypted and re-encrypted until finally it would randomly be delivered through an
exit node. Dkt. No. 124, Ex. 6 at 43-44. Liczbinski also opened the PDF and
examined the properties of the document that accompanied the Tom_Truth email. The
name “Renee Newell” was listed as “author.” Dkt. No. 124, Ex. 6 at 30, 49; Ex. 7.
Liczbinski testified that Plaintiff’s name appearing as “author” on the PDF meant that
“the document was authored on a computer that was registered to a Renee Newell” or
“it was authored on a computer where the software was registered to a Renee Newell.”
Dkt. No. 124, Ex. 6 at 69-70. Although Liczbinski did not think that proved that
Renee Newell was in fact the author, he agreed that it gave “some indication of the
author or the possible author.” Id. at 30. Liczbinski was not an actual investigator on
the case, nor was he the affiant on the search warrant, and he was not aware of all of
the facts and details of the investigation. Id. at 76. Richardson told Liczbinski to keep
all the information secret and not tell anyone. Dkt. No. 129, Ex. 4, at 51-54, 63.
Liczbinski complied and never told anyone else about his findings, including Todd.
Id. at 63.
Richardson then contacted Johnson, a corporal in the ICU, and they met in Eric
Smith’s office. Johnson told Richardson and Eric Smith that he could not determine
the source of the email because it was sent through a TOR server. Dkt. No. 129, Ex.
3 at 27. Johnson made a copy of the text messages between Napoleon and “Michael
Bowles,” and Johnson provided a report and a disk of the text messages to
Richardson. Id. at 29. Richardson then talked with Todd about details of the ICU
investigation and the threatening text messages Napoleon had received. Dkt. No. 129,
at 74-75, 100.
The Search Warrant
Todd signed the search warrant for Plaintiff’s house and the supporting affidavit
after review and input from Defendants. Dkt. No. 129, Ex. 12 at 69, 110.
Although the IP address came back as anonymous, Todd thought the appearance of
Newell’s name on the PDF was significant, stating: “That's not a common name, you
know, and so I concluded it was the same Renee Newell.” Dkt. No. 124, Ex. 2 at 16566. A data search revealed that Plaintiff was the only Renee Newell in Detroit. Id at
285. Todd also reviewed a letter that Plaintiff wrote to Napoleon prior to her
termination, wherein she claimed she had been set up. Dkt. No. 124, Ex. 11 at 1-3.
In the letter, Plaintiff blamed several members of the Department’s executive staff,
stating that they were out to get her. She also was highly critical of Eric Smith, telling
Napoleon that Eric Smith viewed himself as the real boss of the Wayne County Jail
and that Eric Smith would “straighten things out” if Napoleon ever tried to challenge
him. Id. at 13.
Todd reviewed an email from Plaintiff expressing contempt for Eric Smith and
others, in which she stated:
Surely after all this stuff I’ve been through, the last thing I need is to be
* * * thrown on the ground, belly slammed, handcuffed and arrested.
Although I’m sure that would make Owen, Heard, Smith and Pfannes’s
day, maybe a couple of others.
Dkt. No. 124, Ex. 12. Based on this evidence, Todd thought there was sufficient
evidence to believe that Newell was involved:
I think she was pointing fingers at everybody, especially Eric Smith. She
held them responsible so she was trying to dig up this dirt and these
different lies on different people because she was upset and she wanted
revenge. And she had access to everybody's e-mail account, everybody's.
Because it went out to a lot of executives so I mean who else would have
had that kind of access from outside of the office. I believe she had
access to that. The language in the -- I did read a document of a letter
that she wrote to Benny Napoleon and to Captain Bulifant. The language
was similar to the language in the e-mail that Tom Truth sent. There
were a number of things that pointed me at Renee Newell at that time.
Dkt. No. 124, Ex. 2 at 288-90.
In the search affidavit prepared by Todd, he indicated that there was “probable
cause to believe that Renee Newell fraudulently converted, transmitted, and/or created
and authored a fictitious email address and attached documents…” Dkt. No. 124, Ex.
10. Todd stated: “I didn’t need to know beyond a reasonable doubt. . .I just needed
probable cause . . . I was trying to satisfy that probable cause standard.” Dkt. No. 124,
Ex. 2 at 286-87. In the search warrant affidavit, Todd swore that Plaintiff authored
the attachment to the Smith email. Dkt. No. 129, Ex. 9; Ex. 12 at 78, 80-83, 88; Ex.
4 at 51-54, 75. As Todd testified at his deposition, Liczbinski had not said that; rather,
Liczbinski told Todd that he could not tell if Plaintiff authored the attachment. Dkt.
No. 129, Ex. 12 at 78, 80-83. In his affidavit, Todd stated, in part:
On 7-20-12, Sgt. William Liczbinski of the Internet Crimes Unit
conducted an investigation into the origin of the email. Sgt. Liczbinski
was able to determine that the email was sent using a TOR Server to
disguise the email address. However, Sgt. Liczbinski was able to
determine by examining the properties of the attached document that the
document was authored and created by Plaintiff on 7-20-12 at 12:12:24
am and the emails were sent out at around 1:37am.
Dkt. No. 129, Ex. 9 at 3.
In addition to the statement about who “authored and created” the document
attached to the email, that sentence also contains an error about when “the emails”
were sent out. Dkt. No. 129, Ex. 10. Based on the exhibits, it appears that only one
email was sent out, and it was sent out at 1:37 p.m., not 1:37 a.m. Dkt. No. 129, Ex.
8; Ex. 10. Todd restates these errors later in his affidavit:
Finally, Investigators were able to determine that the document authored
by Plaintiff was created at 12:12:24 am and the email was sent at 1:37
am. Because of the late hours and the document being created in the
middle of the night, it is reasonable to believe that the documents were
created at Plaintiff's residence, located at 18627 Snowden, Detroit, MI.
Dkt. No. 129, Ex. 9 at 4. Todd did not include any information in the search warrant
affidavit about the person later learned to be “Michael Bowles” or the
communications that person had with Napoleon, including Napoleon’s belief that he
knew the person later learned to be Bowles had sent the Tom_Truth email. Dkt. No.
129, Ex. 7.
Richardson reviewed the search warrant prior to submission to the prosecutor,
and he did not correct the errors about Liczbinski stating that Plaintiff was the author
or the time of the email, nor did he add any information about the texting and phone
calls between the person later learned to be Michael Bowles and Napoleon. Dkt. No.
129, Ex. 1 at 47. Napoleon states that he was advised of the search warrant before it
was executed, and although he had the authority to preclude the warrant or its
execution, he did not do so. Dkt. No. 129, Ex. 2 at 54; Ex. 9.
When Todd submitted the warrant request to the Wayne County prosecutor, the
first prosecutor declined to sign it but told the officers they could appeal his decision.
Dkt. No. 129, Ex. 1 at 60; Ex. 14 at 6, 14-15, 23-24). Richardson then went to
Richard Hathaway (“Hathaway”), Chief Assistant Prosecutor for Wayne County, who
was second in command at the office. Dkt. No. 129, Ex. 13 at 6. Hathaway authorized
the warrant. Dkt. No. 129, Ex. 12 at 119; Ex. 13 at 13). Todd then submitted the
warrant application to a state court magistrate judge for approval, and it was signed
and executed. Dkt. No. 129, Ex. 1 at 60.
The investigation against Plaintiff concluded when lead Wayne County
Prosecutor Robert Donaldson refused additional search warrants, informed Napoleon
that the Department had a conflict of interest in investigating Plaintiff, and advised
Napoleon to turn over the investigation to the Michigan State Police (“MSP”). Dkt.
No. 129, Ex. 1 at 68. The MSP has not investigated Plaintiff. Dkt. No. 129, Ex. 6 at
APPLICABLE LAW & ANALYSIS
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant
summary judgment 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). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
As recently stated by the Supreme Court:
The doctrine of qualified immunity shields officials from civil liability
so long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known. A clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what he is doing
violates that right. We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional
question beyond debate. Put simply, qualified immunity protects all
but the plainly incompetent or those who knowingly violate the law.
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotation marks omitted).
Qualified immunity is a two-step process. Saucier v. Katz, 533 U.S. 194 (2001). First,
the Court determines whether, based upon the applicable law, the facts viewed in a
light most favorable to the plaintiff show that a constitutional violation has occurred.
Second, the Court considers whether the violation involved a clearly established
constitutional right of which a reasonable person would have known. Saucier v. Katz,
supra.; Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005). Only if the undisputed facts,
or the evidence viewed in a light most favorable to the plaintiff fail to establish a
prima facie violation of clear constitutional law can this court find that the Defendants
are entitled to qualified immunity. Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
Once a government official has raised the defense of qualified immunity, the
plaintiff “bears the ultimate burden of proof to show that the individual officers are
not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468 F. App’x 491,
494 (6th Cir. 2012) (citation omitted). A plaintiff must also establish that each
individual defendant was “personally involved” in the specific constitutional violation.
See Salehphour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998); Bennett
v. Schroeder, 99 F. App'x 707, 712-13 (6th Cir. 2004) (unpublished) (“It is wellsettled that to state a cognizable Section 1983 claim, the plaintiff must allege some
personal involvement by the each of the named defendants”).
Fourth Amendment Law
To state a claim under the Fourth Amendment for an unconstitutional search,
a plaintiff must establish one of two theories. First, a plaintiff can establish a violation
if, despite the approval of the warrant by a magistrate, the four corners of “the warrant
[are] so lacking in indicia of probable cause, that official belief in the existence of
probably cause is unreasonable.” Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th
Cir. 1989) (citing Malley v. Briggs, 475 U.S. 335 (1986)). Second, a plaintiff can
demonstrate that, despite the approval of the warrant by a magistrate, an affiant
intentionally sought to mislead the state court magistrate. Hale v. Kart, 396 F.3d 721,
726 (6th Cir. 2005). If a plaintiff can show that an affiant intended to mislead the
magistrate, and that the state court magistrate relied upon that intentional misstatement
to find probable cause, the federal court must decide whether the objective facts
known at the time of the approval of the warrant would have supported probable
cause. Id. at 728. Police officers cannot use knowingly and/or recklessly false
information to create probable cause. Sykes v. Anderson, 625 F.3d 294, 312 (6th Cir.
2010). “Where only one reasonable reading of the facts is possible, i.e., where the
facts that relate to probable cause are not in dispute, the question of probable cause
retains its legal character and should be decided by the judge.” Hale, 396 F.3d at 728.
At the same time, “for purposes of section 1983 immunity, an officer is entitled
to assume the validity of a search warrant secured by fellow officers.” Davison v.
Frey, 837 F. Supp. 235, 240 (E.D. Mich. 1993) (citations omitted); Hansel v. Bisard,
30 F. Supp. 2d 981, 986 (E.D. Mich. 1998) (“Reliance on a judicially secured warrant
generally immunizes police officers from § 1983 actions predicated on Fourth
It is undisputed that Todd, Richardson and Napoleon “all knew about the IT
investigation into the Smith email and its attachment.” Dkt. No. 129, Ex. 1 at 47; Ex.
2 at 39, 43-45; Ex. 4 at 51-54. Plaintiff also argues that Todd, Richardson and
Napoleon all knew about the extensive communications between Napoleon and
“Michael Bowles” before the search warrant was obtained, Dkt. No. 129, Ex. 1 at 33,
125; Ex. 12 at 24-5, 97, 100-01. As noted above, the record is devoid of any evidence
that any of them knew who “Michael Bowles” was prior to the application for and
execution of the search warrant. Dkt. No. 124, Ex. 2 at 158, 239; Ex. 5 at 110.
Plaintiff also argues that Napoleon had personally spoken on the phone with
“Michael Bowles” and knew that it was not Plaintiff who had threatened Napoleon in
the Tom_Thumb email because the person later learned to be Michael Bowles had
done so. Dkt. No. 129, Ex. 7; Ex. 2 at 51. Plaintiff asserts that Todd and Richardson
also knew it was not Plaintiff who was threatening Napoleon. Dkt. No. 129, Ex. 1 at
35, 126; Ex. 12 at 91-93. Plaintiff notes that it is undisputed Todd and Richardson
knew that the ICU investigators could not definitively determine the author of the
email attachment or the computer on which it was generated. Dkt. No. 129, Ex. 1 at
51-54, 73-75; Ex. 12 at 78, 80-83).
Plaintiff states, without support, that the evidence shows that Napoleon: (a)
“directly” directed the investigation; (b) “implicitly authorized, approved or
knowingly acquiesced” to “fabricated” information about Plaintiff being the author
of the email attachment and the time the email was mailed; and (c) knew that
significant exculpatory evidence was omitted from the affidavit Todd provided.
Plaintiff suggests that this shows Napoleon participated in the fabrication of probable
cause in the search warrant. Again, Plaintiff cites no evidence to support this.
There is no evidence that Napoleon was involved at any stage after ordering the
investigation into the emails regarding Eric Smith. Dkt. No. 129, Ex. 2 at 37; Dkt. No.
121, Ex. 1 at 44; Ex. 7 at 29, 81; Ex. 8, at 28-32; Ex. 9, at 28-29, 37-40; Ex. 10, at 7,
10-11; Ex. 11 at 97, 111, 222, 243. Todd testified that only Richardson and those on
the search warrant team reviewed the search warrant before it was submitted. Dkt. No.
121, Ex. 11 at 251. The evidence demonstrates that Napoleon did not review the
search warrant itself, only that he acknowledged that he knew of the search warrant
before it was executed and that he could have stopped its execution. Dkt. No. 129, Ex.
2, at 54.
In asserting that there is a genuine dispute of material fact that Wayne County
is liable, Plaintiff does not contend that Wayne County had an unconstitutional policy,
practice, or custom concerning the procurement of search warrants. Plaintiff instead
argues that Napoleon is the final decision maker for Wayne County in law
enforcement matters, and that he had sufficient involvement in obtaining the search
warrant of Plaintiff’s home, such that his actions create liability for Wayne County.
Plaintiff relies on Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986), which
provides, in part:
The official must also be responsible for establishing final government
policy respecting such activity before the municipality can be held liable.
Authority to make municipal policy may be . . . delegated by an official
who possesses such authority, and of course, whether an official had
final policymaking authority is a question of state law.
In Michigan, the county sheriff has final authority for law enforcement matters in the
county. Leelanau Cty. Sheriff v. Kiessel, 297 Mich.App. 285, 297-99 (2012). Plaintiff
argues that, since Napoleon had final authority with respect to the issuance of search
warrants in Wayne County, and he exercised his oversight and was advised of the
search warrant prior to its execution, Wayne County has liability for the wrongful
The evidence does not support Plaintiff’s contentions. Plaintiff does not cite
any authority for the proposition, nor does she allege, that Napoleon had an obligation
to review the search warrant for her home or any search warrant. And, contrary to
Plaintiff’s contention, as noted above, there is no evidence that Napoleon had any role
in determining that a search warrant should be pursued for Plaintiff’s home, nor any
role in making the final decision with respect to authorizing officers to submit the
search warrant application to the Wayne County Prosecutor’s Office.
Section 1983 Claims
Plaintiff argues that, with Richardson’s and Napoleon’s approval, Todd placed
multiple false statements in the search warrant affidavit and omitted exculpatory
evidence of which he was aware. Plaintiff argues that the Court must review the
affidavit for probable cause again once the false statements are omitted and the
exculpatory evidence is included. Plaintiff’s arguments are based on Sykes, 625 F.3d
at 305, where the court held:
If the affidavit contains false statements or material omissions, we set
aside the statements and include the information omitted in order to
determine whether the affidavit is still sufficient to establish probable
cause. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing Franks
v. Delaware, 438 U.S. 154, 155-56 . . . (1978)).
In order for the Court to treat false statements and material omissions in the
foregoing manner, the Court must be cognizant that Plaintiff is:
required to prove by a preponderance of the evidence that in order to
procure the warrant, [the officer] “knowingly and deliberately, or with
a reckless disregard for the truth, made false statements or omissions that
create[d] a falsehood” and “such statements or omissions [we]re
material, or necessary, to the finding of probable cause.” Wilson v.
Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (internal quotation marks
omitted); see Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (citing
Wilson with approval and noting that in the § 1983 context “an officer
or investigator cannot rely on a judicial determination of probable cause
if that officer knowingly makes false statements and omissions to the
judge such that but for these falsities the judge would not have issued the
warrant” (internal quotation marks and alteration omitted)); Hinchman
v. Moore, 312 F.3d 198, 205-06 (6th Cir. 2002).
Sykes, 625 F.3d at 305 (emphasis added).
Plaintiff argues the following false statements are included in the search warrant
affidavit prepared by Todd:
However, Sgt. Liczibski was able to determine by examining the
properties of the attached document that the document was authored and
created by Plaintiff on 7-20-12 at 12:12:24 am and the emails were sent
out at around 1:37 a.m.
Finally, Investigators were able to determine that the document authored
by Plaintiff was created at 12:12:24 am and the email was sent at 1:37
am. Because of the late hours and the document being created in the
middle of the night, it is reasonable to believe that the documents were
created at Plaintiff’s residence, located at 18627 Snowden, Detroit, MI.
Dkt. No. 129, Ex. 9 at 3-4. Plaintiff states that Todd: (a) knew what Liczbinski said
but did not put in the affidavit what Liczbinski said, instead putting in details
Liczbinski said were “inaccurate,” and (b) wrote 1:37 a.m. instead of 1:37 p.m., as the
email in Todd’s possession stated. Plaintiff argues that, without the three sentences
identified immediately above, no probable cause exists for a search warrant at
In response, Todd stated that he recalled being told by Liczbinski that Plaintiff
“could have” created the document because her name was in the document properties.
Dkt. No. 120, Ex. 1 at 81-82. Todd states that it is undisputed that Plaintiff’s name
appears as the author in the PACER document as the person who was searching the
U.S. District Court records regarding Eric Smith. Dkt. No. 120, Ex. 7. Todd contends
that he made the reasonable inference that the author of the PACER document
contained the name of the actual author, especially as it was an unusual name and the
name of a person recently terminated by Wayne County. Dkt. No. 120, Ex 1 at 285.
Plaintiff also argues that the Court should remove from the search warrant
affidavit Todd’s two-paragraph representation regarding Plaintiff’s prior emails to
Department Captain Bulifant in May 2012. Plaintiff contends that Todd fabricated the
statement that Plaintiff’s emails to Captain Bulifant in May 2012 had a “theme that
was consistent with the Smith email and its attachment.” Dkt. 129, PgID 3696 and Ex.
9 at 4. Plaintiff asserts there was no common theme because the emails to Captain
Bulifant were attempts to get her property back from Wayne County. Defendants
argue that Plaintiff misses the point regarding the common theme between the Smith
email and previous emails sent by Plaintiff to the Department (Internal Affairs).
Defendants state that the common theme is that all of the communications express
disdain for various members of the Department’s executive staff, including Eric
Smith, and corruption in the Department.
The Court agrees with Plaintiff. Todd’s representation of a common theme may
constitute a deliberate falsehood or fabrication. If Todd did fabricate probable cause
in the affidavit to support the search warrant, there would be a constitutional violation
of Plaintiff’s rights that was clearly established at the time of the violation. See, e.g.,
Sykes, 625 F.3d at 312; U.S. Constitution, Fourth Amendment.
Plaintiff also contends the officers were prosecutor shopping because they went
to Hathaway after the first prosecutor would not execute the search warrant for them.
The evidence reflects that two prosecutors who typically review search warrants had
conflicts of interest (personal acquaintances of persons in or subjects of the
investigation). The first prosecutor who actually reviewed the search warrant has
stated that he was “on the fence” about whether to sign it, though he looked at it from
the perspective of whether he could prevail on a “beyond a reasonable doubt”
standard, not a probable cause standard–and advised that the officers could appeal to
another prosecutor, which the officers did.
Finally, Plaintiff contends that Todd, Richardson, and Napoleon had
exculpatory evidence at their disposal when preparing the affidavit. Plaintiff contends
that they were aware: (1) of the communications between Napoleon and Michael
Bowles that caused them to understand that Plaintiff was not the person threatening
Napoleon; (2) that Michael Bowles was the source of the Eric Smith email; and (3)
that ICU investigators did not know the author of the email attachment or determined
the computer on which it was generated. Plaintiff asserts that all of this information
should have been included in the affidavit and that, if it had been (and the false
statements were omitted), a question of fact would exist as to whether the Defendants
had probable cause to search Plaintiff’s house. Citing Gregory v. City of Louisville,
444 F.3d 725, 743 (6th Cir. 2006) (“in a §1983 action, the existence of probable cause
is a question of fact.”).
Todd argues that it is undisputed that the PACER document was created and
authored on July 20, 2012 at 12:12:24 a.m., which is the middle of the night and
means it is most likely that the person was at home when drafting it. Todd argues that
the indication that it was attached to an email sent at 1:37 a.m. was not deliberate. At
his deposition, Todd testified that there were two emails sent, one at 1:37 a.m. and one
at 1:37 p.m. The Court notes that neither Todd nor any other Defendant has supplied
the Court with an email that was sent at 1:37 p.m.
Todd further argues that the presence of Plaintiff’s name on the PACER
document and her prior, recent criticism of members of the Department establishes
probable cause that Plaintiff was participating in, or her email was being used to,
transmit threatening emails. Todd contends that the supporting probable cause
affidavit had the indicia of reliability for law enforcement and a judicial officer to
reasonably believe there was probable cause. Todd notes that, at the time, he was
aware that a computer was being used to threaten executives of the Department. Todd
bases his argument on the threats being made against Napoleon in the form of emails
and texts, so when Liczbinski said there was an email with an attachment of a PACER
document with Plaintiff’s name on it, Dkt. No. 120, Ex. 6 at 30-31, it made Plaintiff
a suspect, particularly as she had previously worked for the Department and made
threats against members of the department. Based on learning from Liczbinski that
the PACER document was created on a computer Plaintiff used, Docket No. 120, Ex.
6 at 51, and the 12:12:24 a.m. creation time, Todd asserts that he believed it was
created at Plaintiff’s home.
Todd argues that, even if there was someone else that was the source of the
earlier threats against Napoleon, it does not vitiate the fact that Plaintiff could have
been involved or that her computer was used to facilitate the threats. Todd also notes
that, even without the information Plaintiff wanted deleted, Hathaway stated that
Plaintiff was the first person who he would attribute the PACER document to because
her name was on it, she was a former employee of Wayne County who had recently
been fired, and she had previously written letters denigrating Eric Smith and members
of the Department.
Todd concludes that there is no evidence in the record to show that he made any
statements or omissions knowingly and intelligently – or with reckless disregard for
the truth – such that the search warrant should be invalidated. Relying on Peet v. City
of Detroit, 502 F.3d 557, 570 n.2 (6th Cir. 2007) (a plaintiff must establish that the
officer “with[held] a fact that any reasonable person would have known . . . [such that
it] is the kind of thing the judge would wish to know.”). Todd believes that, based on
a totality of the circumstances, including that Liczbinski said Plaintiff “could have
created the document,” the affidavit (even redacted) establishes a “fair probability”
that evidence connecting the defamatory emails would be found at Plaintiff’s home.
The Court disagrees. There is a genuine dispute of material fact such that summary
judgment cannot be granted.
State Law Claims
Todd argues that Plaintiff’s state law claims of intentional infliction of
emotional distress and gross negligence must be dismissed because he has
governmental immunity and because Plaintiff cannot prove the elements of the claims.
A governmental employee is immune from liability for intentional torts if the act was
taken in the course of employment, the employee was acting in good faith, and the act
was discretionary (rather than ministerial). Odom v. Wayne Cty., 482 Mich. 459, 47376 (2008). Good faith is absent if the employee acts maliciously or with a wanton
disregard for the rights of others. Id. at 474. On a substantive basis, a claim for
intentional infliction of emotional distress requires that “a plaintiff must prove the
following elements: (1) extreme and outrageous conduct, (2) intent or recklessness,
(3) causation, and (4) severe emotional distress.” Hilden v. Hurley Med. Ctr., 831
F.Supp.2d 1024, 1046 (E.D. Mich. 2011). Todd contends there is no evidence he was
acting with anything other than good faith. There is no evidence to support a finding
of “extreme or outrageous” conduct by Todd.
As to gross negligence, a plaintiff must show that a defendant engaged in
“conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” M.C.L. 691.1407(7)(a). Todd asserts that Plaintiff cannot prevail
simply by arguing or showing he should have “done more” or “taken additional
precautions.” Tarlea v. Crabtree, 263 Mich.App. 80, 90 (2004) (employee is not
required “to exhaust every conceivable precaution to be considered not negligent”).
Todd suggests there is no evidence to show that he was driven by malice or ill will at
any time relative to obtaining, preparing, or executing the search warrant; rather, he
contends he was simply performing his duties in a professional manner.
For the reasons set forth in Section III.D.3.a., the Court concludes that Plaintiff
has established a genuine dispute of material fact with respect the state law claims and
denies Todd’s motion for summary judgment with respect to the state law claims
Section 1983 Claims
Richardson argues that, where police have conducted a search pursuant to a
warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication
that the officers acted in an objectively reasonable manner or “objective good faith.”
Leon, 468 U.S. 922–923. Although a magistrate’s approval does not automatically
render an officer’s conduct reasonable, the Supreme Court in Messerschmidt v.
Millender clarified that the approval by a magistrate or review by others is relevant
in determining the objective reasonableness of the officers’ determinations. 132 S.Ct.
1235, 1245 (2012).
The Supreme Court emphasized that “[t]he threshold for establishing [an
exception to the shield of immunity] is a high one, and it should be” because
magistrates are presumed to understand probable cause moreso than the police.
Messerschmidt, 132 S.Ct. 1245. And, the fact that the officers secured judicial
approval is ordinarily pertinent in assessing whether they could have held a reasonable
belief that the warrant was supported by probable cause. Messerschmidt, 132 S.Ct. at
1249-50. Richardson later contends that Plaintiff can overcome the shield of
immunity only by showing that “the warrant was based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely
unbelievable. Leon, 468 U.S. at 923. Richardson’s argument seems to miss the mark,
as Plaintiff is focused more on Todd’s misstatements and omissions, which the Court
finds relevant when analyzing Richardson’s motion.
Richardson argues that Plaintiff is pitting the conclusions of Todd against the
testimony of Liczbinski to prove falsity. Richardson argues that Liczbinski’s
testimony does not establish anyone deliberately included false information. While
Richardson’s argument may be correct (because multiple interpretations are possible).
Richardson ignores that Todd states in the affidavit that “Liczbinski was able to
determine by examining the properties of the attached document that the document
was authored and created by Plaintiff on 7-20-12 . . .” There is no evidence that
Liczbinski ever made such a determination or told Todd that he did. As discussed
above, the Court finds that there is a question of fact whether Todd misled the
magistrate judge by failing to include or disclose that “Michael Bowles” had sent
threatening text messages to Napoleon or the Department.
In the Sixth Circuit, police need not include “information potentially
contradicting a finding of probable cause” in a search warrant. See Mays v. City of
Dayton, 134 F.3d 809, 815-16 (6th Cir. 1998) (“the warrant application process results
in no ultimate finding of guilt or innocence and thus its consequences of arrest are less
severe than the consequences of an adverse criminal verdict”). Discovery has
revealed that Plaintiff did interact with Bowles regarding communications to
Napoleon demanding that Eric Smith be terminated.
Richardson also asserts that probable cause existed even without the alleged
deliberately misleading actions by Todd. Richardson contends the affidavit still
would have stated:
On July 20, 2012, the Sheriff and several members of his executive staff
received an untraceable email from “Tom Truth” accusing Executive
Chief Eric Smith of having a federal cocaine charge;
The otherwise untraceable email came with an attached PDF of a
PACER docket purporting to show Eric Smith’s criminal case;
An examination of the PDF properties listed Plaintiff as “author.”
Plaintiff was known to investigators as a former appointee of Napoleon
who had recently been terminated for misconduct;
The language in the Tom Truth email was consistent with previous
writings from Plaintiff while she was suspended and following her
ICU investigators concluded that the PDF was either authored on a
computer owned by Plaintiff or on a computer with software registered
Because the PDF was created late at night (12:12:24 am) on 7/20/2012,
it was reasonable to believe that Plaintiff created the PDF on a computer
at her home.
Richardson asserts that those facts are sufficient to show that there was probable cause
to believe that Plaintiff was involved (either directly or as an accomplice) in sending
the Tom Truth email, and that it was reasonable to conclude that evidence of her
involvement would be found in her home.1 Richardson also argues that Plaintiff has
failed to adequately allege any of her Section 1983 claims and, even if she did, they
fail as a matter of law.
The Court finds that there is a genuine dispute of material fact that Richardson
Richardson argues that there is no evidence to support an assertion that he or Todd
intentionally engaged in deliberate falsehoods or acted in careless disregard for the truth when
they drafted the affidavit and prepared the warrant.
did not have reason to believe there was probable cause when he reviewed and
approved the search warrant application prepared by Todd. Richardson controlled the
investigation into who was responsible for the Tom_Truth emails sent to Napoleon.
Richardson received and reviewed reports and directed activities regarding the
investigation, all of which he insisted be kept confidential. Richardson knew about
the extensive communications between Napoleon and Michael Bowles before the
search warrant was obtained and, in a light most favorable to Plaintiff, Richardson
knew that it was not Plaintiff who was threatening Napoleon. Dkt. No. 129, Ex. 1 at
35, 126; Ex. 12 at 91-93. Prior to seeing the search warrant, Richardson was advised
by Liczbinski that Liczbinski could not determine that Plaintiff was the author of the
email. Nonetheless, Richardson approved – and did not correct the erroneous
statements in – the search warrant application that represented that there was
“probable cause to believe that Renee Newell fraudulently converted, transmitted,
and/or created and authored a fictitious email address and attached documents . . .”
And, when Todd’s attempt to have a Wayne County prosecutor sign the warrant
request, Richardson went to Hathaway to obtain authorization for the warrant.
The Court concludes that Richardson’s motion for summary judgment on
Plaintiff’s Section 1983 claim must be denied.
State Law Claims
Richardson’s arguments for dismissal of Plaintiff’s intentional infliction of
emotional distress and gross negligence claims mirror those set forth by Todd above.
For the reasons set forth in Section III.D.4.a., the Court concludes that Plaintiff has
established a genuine dispute of material fact with respect the state law claims and
denies Richardson’s motion for summary judgment with respect to the state law
claims against him.
For the reasons stated above, the Court: (1) grants the motions filed by
Napoleon and Wayne County, Chahine and Johnson, and Farris, and they are
dismissed; and (2) denies the motions filed by Todd and Richardson.
IT IS ORDERED that Todd’s Motion for Summary Judgment [Dkt. No. 120]
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Napoleon and Wayne County [Dkt. No. 121] is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Chahine and Johnson [Dkt. No. 122] is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by
Farris [Dkt. No. 123] is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment [Dkt. No.
124] filed by Richardson is DENIED.
IT IS FURTHER ORDERED that the Motion for Order Regarding Exhibit 7 to
Docket Number 131 filed by Napoleon, Richardson and Wayne County [Dkt. No.
138] is DENIED.
IT IS SO ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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