Noonan v. Oakland, County of et al

Filing 92

ORDER denying 82 Motion for Summary Judgment; granting in part and denying in part 83 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS D. NOONAN,
Case No. 12-14930
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
COUNTY OF OAKLAND, ET AL.,

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO CITY
OF FARMINGTON HILLS AND DETECTIVE MORTON [82], DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [83] AS TO DEFENDANT COUNTY OF
OAKLAND, AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[83] AS TO HERMAN BISHOP
This case involves Plaintiff’s civil rights claims after Defendants arrested him
and charged him with two felonies after Plaintiff reported the theft of his own car
valued at $1,000-$1,500. Before the Court now are Defendants’ City of Farmington
Hills and Detective Nicole Tomasovich-Morton Motion for Summary Judgment [82],
Plaintiff’s Response [84], and Defendants’ Reply [88] and Defendants’ Oakland
County and Detective Herman Bishop Motion for Summary Judgment [83], Plaintiff’s
Response [87], and Defendants’ Reply [89]. The Court heard oral argument on the
Motions [82, 83] on January 22, 2015. For the following reasons Defendants’, City
of Farmington Hills and Detective Morton’s, Motion for Summary Judgment [82] are
DENIED.

Defendants’,Oakland County and Detective Bishop’s, Motion for

Summary Judgment [83] are GRANTED as to Defendant Herman Bishop, and
DENIED as to Defendant County of Oakland.
STATEMENT OF FACTS
Background Facts About Plaintiff
Plaintiff was an attorney at a large law firm from September 1999 until 2014.
Plaintiff became a partner in 2006. He has focused his career on commercial
litigation. For the ten years leading up to the facts underpinning this case, Plaintiff was
billing between 1,800 and 2,300 hours a year. In June 2010, when his car was stolen,
Plaintiff was making over $100,000 a year.
Since his admittance to the Michigan bar, Plaintiff has always been a lawyer in
good standing. Plaintiff has never declared bankruptcy, and he has never been
convicted of a felony or misdemeanor involving theft or dishonesty. Plaintiff has
never been arrested for or convicted of a drinking and driving violation.
In 2008, Plaintiff purchased the 2001 Pontiac Grand Prix. It was subsequently
stolen from his driveway. Plaintiff purchased the car from his brother and received
only one key. The key was an older style key without any buttons on it. When the car
was stolen in 2010, it had approximately 180,000 miles on it. Despite his salary,
Plaintiff was driving this car because “it was running well and [he’s] not really that
into cars.” [84-2] Plaintiff dep. Plaintiff’s brother confirmed that “[i]t’s not unusual

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for our family to be driving cars way past 100,000 miles, because it’s “how [they]
were raised.” [84-3] David Noonan dep.
Plaintiff’s brother recalls telling Defendant Detective Morton that two keys did
exist to the car, but that he only gave one key to Plaintiff. He testified that he has no
recollection of ever giving the second key to Plaintiff. As he confirmed, “[i]n Tom’s
mind there was only one key that existed.” He expressly denied that he said that he
gave Plaintiff two sets of keys with the vehicle at the time of the purchase. [84-3]
David Noonan dep. Plaintiff has been clear throughout this litigation that he only ever
had one key. [84-2] Plaintiff dep.
Plaintiff’s Car Is Stolen From His Driveway
In June 2010, Plaintiff was living in Farmington Hills. On the evening of June
17, 2010, Plaintiff left work around 7:00 p.m., went to the gym, and then met a friend
in Plymouth to watch the final half of a play-off basketball game. After two or three
drinks over the course of an hour and a half, Plaintiff left a little after midnight and
went home. On his way home, Plaintiff stopped and filled up his car with gas.
Between midnight and 1:00 a.m. on June 18, 2010, Plaintiff parked his car in the
driveway of his house. Plaintiff locked his car and took his keys into his house. He
testified that he believes that he took one of his two employment security access cards
into his house that evening.

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Around 9:00 a.m. on June 18, 2010, as he was leaving for work, Plaintiff
discovered that his car was stolen from his driveway. Plaintiff reported the car theft
to the Farmington Hills Police Department and his insurance carrier that morning. At
the time of the theft, the car was worth between $1,000 and $1,500.
Defendant Detective Morton’s Investigation
Defendant Morton is an officer in the Farmington Hills Police Department. In
January of 2010, Morton was assigned to the Auto Theft Unit. Morton served with the
Auto Theft Unit until November 2013. The Auto Theft Unit is a multi-jurisdictional
task force comprised of officers from Oakland County cities.
At the time of her appointment to the Auto Theft Unit, Morton was the last
choice of the four Farmington Hills candidates considered for the Auto Theft Unit.
She was the last choice for assignment to the Auto Theft Unit, because she did not
have any investigative experience. Prior to her assignment to the Auto Theft Unit,
Morton did not have any experience as an investigator on an auto theft case. Morton
was put in this position as an investigator despite the fact that she had been previously
criticized for not performing thorough investigations. [84-7] Officer Performance
Evaluation. Once she arrived at the Auto Theft Unit, Morton did not receive any
training, and there were no written policies or procedures upon which she could rely.
Morton did not receive any training with regard to investigating automobile thefts
until after she caused charges to be brought against Plaintiff.
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Prior to being assigned to the Auto Theft Unit, Morton received no training
from Farmington Hills in establishing probable cause. Farmington Hills Police
Commander Stasch testified that, in Farmington Hills, detectives do not need to seek
a supervisor’s approval to seek a warrant or go to the prosecutor with a case— i.e. that
probable cause is only established by an officer knowing it when he or she sees it.
Similarly, in Oakland County, there are no policies and procedures established for
determining probable cause.
While she was assigned to the Auto Theft Unit, Morton always received her
paycheck from Farmington Hills. She also was driving an undercover Farmington
Hills police car. Farmington Hills retained a supervisory role over Morton while she
was posted with the Auto Theft Unit which included review of her reports. Despite
this purported review, Morton could always take the case to the prosecutor on her
own, without any oversight by Farmington Hills. Nor did Morton have any obligations
to report to her Oakland County supervisor regarding charges she would seek from the
prosecutors.
Bishop and Morton Interrogations of Plaintiff
Because the theft of Plaintiff’s car occurred in Farmington Hills, Defendant
Morton was the Auto Theft Unit investigator assigned the case. Plaintiff initially met
with Morton on July 6, 2010. Morton’s report from this July 6, 2010, meeting claims
that Plaintiff appeared to be “very nervous, shaking, sweating and stumbling over his
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words.” Plaintiff alleges that none of those statements accurately describe him during
that meeting. Rather, Plaintiff asserts was cooperative.
At the July 6, 2010 meeting, Morton advised Plaintiff that his car had been
recovered with a key in the ignition shortly after its theft. At that meeting, Morton
showed Plaintiff a large set of keys that she said were found with the car. Plaintiff
denied that the keys Morton showed him were his.1 Morton also showed Plaintiff a
security pass card that Plaintiff said might be one of his pass cards for work that he
left in his car. The pass key was not attached to any key that looked like the key to
Plaintiff’s car. Plaintiff gave Morton his only key to the car at this initial meeting.
Plaintiff also filled out a vehicle theft report.
Plaintiff next met with Morton on July 21, 2010. Defendant Oakland County
Sheriff Detective Bishop attended this meeting as well. At the outset of this meeting,
Plaintiff asserts that he was “very calm.” This is contrary to Morton’s report that
claimed that Plaintiff was shaking and stumbling over his words. Morton’s report
from July 21, 2010 also claimed that Plaintiff just “wanted to get this whole process

1

Neither Oakland County nor Farmington Hills are in possession of the keys
at issue in this case. Morton claims to have sent the keys found with Mr. Noonan’s
car back to the person who picked up the car from Oakland County. Morton could
not identify to whom she sent the keys, and had no record of sending those keys to
anyone. Farmington Hills Special Order 09-006 requires that all property returned
to a victim be photographed. No photographs of the keys were produced by
Farmington Hills.
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behind him. He wanted it done.” Plaintiff denies that assertion by Morton because he
was glad to be getting his car back, and that it had “been a pain the ass borrowing
cars.” At this meeting, Plaintiff indicated that his brother believed that he might have
given Plaintiff another key, but that Plaintiff never recalled having a second key.
Later during the July 21, 2010 meeting, Plaintiff became agitated because
Bishop accused him of arranging for the theft of his car because he needed the money.
Bishop accused Plaintiff of pulling an “insurance scam job.” Morton then pulled a key
from an envelope and asked Plaintiff if it was the key he gave her at the July 6, 2010
meeting. Plaintiff said it looked like the key that he had given to her previously.
Detective Morton then advised him that it was not the key he had given her, but the
key that was found in the car. Throughout this meeting, Bishop advised Plaintiff that
the evidence “all points to him.”
The day after the July 21, 2010 meeting, Plaintiff retained counsel. Morton
shredded all of her notes from these two interviews.
Defendants Charge Plaintiff with Two Felonies
Plaintiff was charged with two felonies: insurance fraud and falsely reporting
a felony. On August 9, 2010, Plaintiff was arraigned. An Auto Theft Unit conference
was subsequently set for September, which Plaintiff was required to attend. Plaintiff
alleges that he feared being held in jail if he failed to appear at these hearings.

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Morton testified that she went to the prosecutor because she thought Plaintiff
was lying about the theft of his car. Morton believed that Plaintiff was involved in an
accident the night before it was stolen and that he did not leave the car in his
driveway. During discovery, Morton was unable to specify any evidence to support
that theory. Rather, Morton simply theorized that Plaintiff “had been drinking prior
to driving home. . . . And, unfortunately, Plaintiff driving, hit something, fled the
scene, and got home.” Morton claimed that Plaintiff changed his story with regard to
the events the evening his car disappeared. However, there is no report filed by
Morton indicating that Plaintiff ever changed his story as to his whereabouts the night
his car was stolen.
Morton testified that she believed Plaintiff was lying because he was “shaking
and stumbling over his words.” She testified that she believed he changed his story
about his whereabouts the night the car went missing; the possible existence of two
keys; and making loan payments. Specifically, with regard to the key, Morton claimed
that Plaintiff was inconsistent because he said that he had two keys after, according
to Morton, he initially had claimed to only have one key. Morton also claimed that
Plaintiff’s refusal to take a polygraph caused her to have suspicions. Although Morton
was told to never include information about polygraphs in reports; she told the
prosecutor about Plaintiff’s alleged refusal to take a polygraph.

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Based on Morton’s report of “inconsistencies” to Oakland County Assistant
Prosecutor and Morton’s claim that Plaintiff refused a polygraph examination,
Defendants made the decision to charge Plaintiff solely on the information provided
by Morton.
Exculpatory Evidence
Plaintiff argues that substantial evidence existed and was known to Defendants
to indicate that he did not commit the crimes with which they charged him. First,
Plaintiff did not have a second key to the car in 2010. Plaintiff does not know how a
key to his car was found in the ignition of his car at the time it was recovered by the
police. Plaintiff insists that he only ever had one key to his stolen car—the key that
was in his possession and that he gave to Morton at their initial meeting on July 6,
2010.
Plaintiff also argues that the purported loans that Bishop and Morton claim
establish probable cause were not substantial enough for him to orchestrate the theft
of his own low-value car. In 2010, Plaintiff had a school loan balance of
approximately $10,000. Plaintiff was making monthly payments of $800, and the loan
has since been paid-off in full. In April 2010, Plaintiff gave $2,500 to Cornerstone
Schools. [1] at ¶ 60. The value of his car was between $1,000 and $1,500 when it was
stolen. Morton testified that she had never charged someone with insurance fraud over
a $1,500 car. Morton also testified that she had no idea how much Plaintiff earned or
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the amount of his debts. Plaintiff asserts that she had no idea whether a $1,000
insurance check would have any impact on Plaintiff’s finances, because she believed
that “it doesn’t matter what someone makes.”
Plaintiff testified that he never refused a polygraph examination. Plaintiff did
voluntarily submit himself to a polygraph examination on July 25, 2010—a few days
after he met with Bishop and Morton.
Plaintiff also notes that significant evidence demonstrates that anyone could
have stolen his car. Morton testified that it is very easy to get a re-key for a 2001
Pontiac Grand Prix. Bishop also testified that keys can be made from vehicle
identification numbers for purposes of stealing cars. That it is not unusual to have
cars stolen based on the copying of keys in this fashion.
Sergeant Banycky confirmed that most car thefts in Farmington Hills happen
in the south end of town, which is where Plaintiff lives. In spite of these facts, Morton
and Bishop performed no further investigation than interviewing Plaintiff.
Morton admitted that no fingerprints were taken from surfaces in the recovered
car, even though she believed the tequila bottle allegedly found in the car was
Plaintiff’s. The Detroit Police reported that eye witnesses identified someone running
from the car after it was crashed within the City of Detroit. Morton claims that a few
days after police recovered the car, she investigated by leaving her card at some
houses on the street where the car was found. Morton claims that although she
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investigated, she could not find the witnesses who spoke with the Detroit Police
Department a few days earlier.
Years later, after being sued, Farmington Hills sent two different police officers
into Detroit to find the witnesses who saw Plaintiff’s stolen, crashed car. Years after
the crash, these other two Farmington Hills officers found the witnesses who told the
officers that a skinny, African-American male was seen running from Plaintiff’s
crashed car. Plaintiff is Caucasian. Upon locating the witnesses in 2013, the two
Farmington Hills officers learned that Detroit Police had apprehended the subject,
brought the subject back to the two witnesses who identified him, and Detroit Police
arrested the subject. [84-12] at 2.
Plaintiff asserts that no evidence ever tied Plaintiff to certain items found inside
his recovered car. Plaintiff denied ownership of the large set of keys found in his car.
Defendants never investigated them despite a LegalShield tag that was attached to the
key chain. But, Plaintiff’s lawyers’ subsequent investigation of the key chain and tag
in this civil action revealed that the LegalShield tag on the keys belonged to someone
who lives in Detroit and who has no connection to Plaintiff. [79]. Neither Bishop nor
Morton investigated the origins of the tag even though it had a clearly identifiable
member number listed on it. This tag, available to Bishop and Morton at the time they
sought to charge Plaintiff, ultimately led the Prosecutor to conclude that the keys
found in the car were not Plaintiff’s keys. Moreover, in making the decision to
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dismiss the claims against Plaintiff, the Prosecutor noted that a second pass
card—identical to the one attached to the large set of keys—was found in Plaintiff’s
car and that Plaintiff was probably confused when he indicated the pass card attached
to the keys could have been his. Because Plaintiff passed the polygraph test
administered by Oakland County, because Defendants could not link the keys found
in the car to Plaintiff, and because Defendants could not prove that the security swipe
card found on the keychain in Plaintiff’s car belonged to him, the Prosecutor
dismissed the charges against Plaintiff.
Plaintiff’s Damages
Plaintiff asserts that his billable hours at his job dropped significantly due to the
ongoing threat of going to jail. As a consequence of his hours dropping significantly,
Plaintiff’s salary was severely cut. Moreover, Plaintiff asserts that he suffered a
significant detrimental emotional impact of being charged with crimes he did not
commit while serving as a lawyer. Plaintiff also paid attorney fees. Plaintiff also
suffered damages to his professional reputation.
STANDARD OF REVIEW
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
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burden of establishing that there are no genuine issues of material fact, which may be
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).
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 asserts only one claim—malicious prosecution—against each
Defendant. To succeed on a malicious-prosecution claim under § 1983, when the
claim is premised on a violation of the Fourth Amendment, Plaintiff must prove that:
(1) a criminal prosecution was initiated against him and that Defendants made,
influenced, or participated in the decision to prosecute; (2) there was a lack of
probable cause for the criminal prosecution; (3) as a consequence of a legal
proceeding, Plaintiff suffered a deprivation of liberty under the Fourth Amendment,
apart from the initial seizure; and (4) the criminal proceeding was resolved in
Plaintiff's favor. Sykes v. Anderson, 625 F.3d 294, 308—09 (6th Cir. 2010). Despite
the misnomer of his claim, Plaintiff is not required to demonstrate malice to prevail
on a claim for malicious prosecution under the Fourth Amendment. Id. at 309.

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I. Defendants Farmington Hills and Detective Nicole Tomasovich-Morton’s
Motion for Summary Judgment [82]
Defendants Farmington Hills and Detective Morton dispute only two elements:
(2) that there was a lack of probable cause and (3) that Plaintiff suffered a deprivation
of liberty under the Fourth Amendment, apart from the initial seizure. Alternatively,
Defendants argue that Morton is entitled to qualified immunity and Plaintiff’s Monell
claim against Farmington Hills fails because no custom or policy caused Plaintiff’s
alleged constitutional deprivation.
A. Element of Malicious Prosecution: Probable Cause
Defendants point to several pieces of evidence that established probable cause
at the relevant points in the timeline. Defendants assert that Plaintiff changed his story
between the July 6, 2010 and July 21, 2010 interviews about whether there was more
than one key to the car. Morton also testified that she found it odd that, during the July
6 interview, Plaintiff stated that he was surprised they had found his car so quickly.
Next, Defendants cite that Plaintiff changed his story about whether the keys and
passcard recovered in the car were his. Defendants also argue that, although Plaintiff
disputes his actual demeanor during the interviews, he cannot dispute that Morton and
Bishop believe he appeared nervous. Next, Defendants state that, although Plaintiff
told police there was only a small dent in the rear bumper, when the car was
recovered, there was substantial damage inconsistent with the final collision.
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Defendants also state that there was no sign of forced entry on Plaintiff’s driveway or
on the car when it was recovered.
Defendants also assert that multiple motives for Plaintiff to have committed the
charged crimes arose during their investigation. Defendants assert that Plaintiff
described having difficulties repaying his student loans and having a hard time in
general financially. Defendants also assert that Plaintiff told his criminal attorney that
he was having trouble with his mortgage, student loans, and medical bills. Motion [82]
Ex. 3 at 186—87. Defendants assert that Plaintiff changed his version of the events
about whether he came straight home from work or whether he went out drinking with
a friend the night before. Defendants argue that this change of story indicated to them
that he may have had an alcohol-related accident and abandoned his car and reported
it stolen.
Construing the facts on summary judgment in the light most favorable to the
non-moving party usually means adopting the plaintiff's version of the facts. Scott v.
Harris, 550 U.S. 372, 378 (2007). The version of facts recited in Plaintiff’s Response
[84] disputes that his unsureness about whether there were two sets of keys was
suspicious at all. Plaintiff’s characterization of the confusion about the number of keys
as not suspicious is supported by Plaintiff’s brother’s testimony that he only gave
Plaintiff one set of keys when he sold Plaintiff the car. Plaintiff also disputes in turn
each fact upon which Defendants premise probable cause.
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In general, the existence of probable cause in § 1983 action based on allegedly
unlawful arrest presents a jury question, unless there is only one reasonable
determination possible. Kinlin v. Kline, 749 F.3d 573, 578 (6th Cir 2014). Inquiry into
whether there was probable cause for an arrest turns on whether the facts and
circumstances within the officer's knowledge are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the circumstances shown, that
the suspect has committed . . . an offense. Lyons v. City of Xenia, 417 F.3d 565, 573
(6th Cir. 2005). Plaintiff has shown that there is a genuine question of material fact
about whether Morton’s knowledge in August of 2010 was sufficient to warrant a
prudent person to believe that Plaintiff had falsely reported his car stolen.
Additionally, although Defendants assert and show that Plaintiff told his
criminal attorney that he was having trouble with his mortgage, student loans, and
medical bills, the relevant question is what Defendants knew at the times they sought
a warrant and charged Plaintiff. Lyons, 417 F.3d at 573. Morton sought a warrant in
and Plaintiff was charged in August of 2010. Plaintiff’s criminal defense attorney was
deposed on October 15, 2013. Since the question for a jury would also be whether
probable cause existed on those dates before defense counsel’s deposition, evidence
from the deposition would likely be excluded as irrelevant.
Finally, although Morton had no duty to investigate every possible theory of the
case, it is troubling that Morton claims she could not find the crash witnesses days
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after the crash when charging Plaintiff with two felonies, but, when defending this
lawsuit years later, two different Farmington Hills offices found the witnesses quite
easily. Further, the witnesses indicated that the suspect who had fled from the scene
had been arrested by Detroit Police shortly after fleeing and the car was left at the
scene. Given that Defendants ended up with custody of the car, there must have been
some level of coordination between the jurisdictions. It is troubling that Defendants
arranged to take custody of the car, but not to inquire about any perpetrators. Thus,
effectively there was no pre-charging investigation.
B. Element of Malicious Prosecution: Deprivation of Liberty Under the Fourth
Amendment
Defendants argue that because Plaintiff was never arrested, incarcerated, or
required to post anything other than a personal recognizance bond he did not suffer
a deprivation of liberty. Plaintiff, however, was compelled to attend hearings on the
felony charges brought against him. This Circuit has long held that required court
appearances are sufficient to constitute a deprivation of liberty. Bacon v. Patera, 772
F.2d 259, 265 (6th Cir. 1985). Additionally, the detrimental effect of the criminal
investigation of Plaintiff on his employment and income constitutes a liberty interest
violation. See Id. As a matter of law, Plaintiff suffered a deprivation of liberty.

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C. Qualified Immunity as to Morton
Qualified immunity protects officers from both liability and trial in § 1983
actions so long as they did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). However, where a genuine question of material fact exists about
whether an officer violated a plaintiff’s constitutional rights, summary judgment for
defendants on qualified immunity is precluded. See Greco v. Livingston County, 2014
WL 7240680 at *2 (6th Cir. 2014) (Sutton, J.) (affirming denial of summary judgment
on qualified immunity defense where there was a question of fact about whether
defendants violated plaintiff’s Fourth Amendment rights in a § 1983 action). This is
where the “light most favorable to the plaintiff” language kicks in: Even if the Court
believes Defendants’ version of the facts, the question remains whether a jury could
reasonably decide that Morton violated Plaintiff’s Fourth Amendment rights. Id.
D. Monnell Claim as to Farmington Hills
A municipality may be held liable under § 1983 if a plaintiff shows she was
injured “pursuant to official municipal policy of some nature.” Monell v. New York
City Dept. of Social Servs., 436 v. 658, 691 (1978) Municipal liability may be imposed
under § 1983 for a single decision made by a municipal policymaker in certain
circumstances. See Pembaur v. City of Cincinnati, 475 U.S. 469, 477–84 (1986)
(modifying Monell). Plaintiff purports to establish municipal liability by showing that
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an official with final decision making authority ratified illegal actions or the existence
of a policy of inadequate training or supervision. D’Ambrosio v. Marion, 747 F.3d
378, 386 (6th Cir. 2014).
Farmington Hills can be held liable under Plaintiff’s failure-to-train theory if
his injuries can be attributed to the Farmington's failure to adequately train Morton
and this failure amounted to “deliberate indifference” to the rights of members of the
public. City of Canton, Ohio v, Harris, 489 U.S. 378, 388 (1989). Specifically,
Plaintiff must show: (1) that Morton's training was inadequate to prepare her for the
tasks she was expected to perform; (2) that the inadequacy persisted due to the City's
deliberate indifference; and (3) that the inadequacy is closely related to or actually
caused Plaintiff’s injuries. Campbell v. City of Springboro, Ohio, 700 F.3d 779, 794
(6th Cir. 2012).
Plaintiff has satisfied the first element; Morton received no training after joining
the Auto Theft Unit until after Plaintiff had been charged. As to the second element,
in certain cases, where the constitutional violation is a highly predictable consequence
of the failure to train, a finding of “deliberate indifference” on the part of
policymakers is justified. Canton, 489 U.S. at 390. In such cases, municipal liability
can be triggered by evidence of a single violation of federal rights, accompanied by
a showing that the municipality has failed to train its employees to handle recurring
situations. Id. Here, it seems fairly predictable that hiring the least qualified candidate
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and failing to train her to be a detective with unilateral authority to seek warrants and
charges would lead to the violation of federal rights. As to element three, the
inadequacy of Morton’s training is directly related to Plaintiff’s injuries. Defendants
are not entitled to summary judgment on Plaintiff’s failure-to-train theory.
Plaintiff can also establish Farmington Hills’ liability by showing that an
official with final decision making authority ratified illegal actions. Plaintiff asserts
two mutually sufficient ways he can do this—that Morton was a final decision maker
or that final decision makers ratified Morton’s actions. Plaintiff argues that Morton
was a final decision maker because she had complete discretion to charge subjects.
The Sixth Circuit has held that where investigators who had complete discretion to
conduct their own investigations, it was a question for the jury whether investigators
were final decision makers. Monster v. City of Memphis, 115 F. App’x 845, 851 (6th
Cir. 2004). Here, Morton had a greater power than conducting her own
investigations—to seek charges. Defendants are not entitled to summary judgment on
Plaintiff’s Morton as a final decision maker theory.
A failure to investigate or the ratification of illegal acts can constitute evidence
of an official “policy of deliberate indifference.” Skovgard v. Pedro, 448 F. App’x
538, 548 (6th Cir. 2011). Here, Farmington Hills’s failure to take any action to even
investigate Morton’s conduct could be viewed as an implicit ratification of her

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behavior. Defendants are not entitled to summary judgment on Plaintiff’s ratification
by a the municipality theory.
II. Defendants Oakland County and Detective Herman Bishop’s Motion for
Summary Judgment [83]
Defendants Oakland County and Detective Herman Bishop dispute only one
element of Plaintiff’s malicious prosecution claim: (1) that Bishop made, influenced,
or participated in the decision to prosecute. Sykes v. Anderson, 625 F. 3d 294,
308—09 (6th Cir. 2010). Alternatively, Defendants argue that Bishop is entitled to
qualified immunity and Plaintiff’s Monell claim against Oakland fails because no
custom or policy caused Plaintiff’s alleged constitutional deprivation.
A. Element of Malicious Prosecution: Decision to Prosecute as to Bishop
Defendants claim that Bishop’s involvement in the investigation of Plaintiff’s
stolen car was limited to observing Morton’s interviews of Plaintiff. Plaintiff’s
testimony directly contradicts that assertion. Plaintiff testified that during the July 21
interview, Bishop said to him that all the evidence pointed toward [Plaintiff]. Plaintiff
asserts that Bishop supervised, encouraged, and advised Morton that she had a good
case. Bishop should be dismissed from this case because he did not participate in the
decision to prosecute Plaintiff. See Hunt v. City of Cleveland, 563 F. App’x 404 (6th

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Cir. 2014) (dismissing officers where there was no question of fact that the officers
had not turned over false information to a prosecutor).2
B. Qualified Immunity as to Bishop
It is unnecessary to analyze whether Bishop is entitled to qualified immunity
because Plaintiff cannot establish a prima facie case of malicious prosecution against
him.
C. Monell claim as to Oakland County
Plaintiff and Defendants both seem to be proceeding on the premise that
Oakland County can be liable under Monell based on Morton’s action as a result of
her position on the Auto Theft Unit. There are no cases on-point cases about multijurisdictional task forces and Monell and I am inclined to adopt the parties’
presumption. Accordingly, Plaintiff’s Monell claims as to Oakland County survive
summary judgment for the same reasons elaborated supra.

2

Morton’s analysis under the element of contribution to decision to
prosecute differs from Bishop’s because there is a genuine question of material fact
about whether she submitted false information to the prosecutor in order to
fabricate probable cause.
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CONCLUSION
IT IS ORDERED that Defendants’, City of Farmington Hills and Detective
Morton’s, Motion for Summary Judgment [82] is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment [83] is
GRANTED as to Defendant Herman Bishop and DENIED as to Defendant County
of Oakland.
IT IS FURTHER ORDERED that Defendant Herman Bishop is DISMISSED
from this case.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 30, 2015

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