Buchanan v. Metz et al

Filing 36

OPINION AND ORDER Granting Defendant Metz's 23 Motion to Dismiss. Signed by District Judge Gerald E. Rosen. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN C. BUCHANAN, JR.,
Plaintiff,
No. 2:12-cv-15511
Hon. Gerald E. Rosen

vs.
JAMES W. METZ II and DONOVAN
MOTLEY,
Defendants.
___________________________________/

OPINION AND ORDER GRANTING DEFENDANT METZ’S
MOTION TO DISMISS
I. INTRODUCTION
This civil rights litigation arises out of Plaintiff John C. Buchanan, Jr.’s
involvement in attempting to redevelop a manufacturing plant into a film studio as
part of Michigan’s Film and Digital Media Tax Credit program. According to
Plaintiff, the project ultimately fell through due to a politically-motivated criminal
investigation by the Michigan Attorney General. Defendants James W. Metz II
and Donovan Motley handled the investigation. Their investigation ultimately
resulted in criminal charges against Plaintiff and another individual, which a
Michigan state court subsequently dismissed for want of probable cause. Plaintiff
now seeks relief in this Court, asserting causes of action under the Fourth

1

Amendment and Michigan common law for malicious prosecution and false arrest.
In short, Plaintiff complains that Metz and Motley decided to pursue charges
against Plaintiff without probable cause and effectuated this by having Motley
make false statements to a magistrate.
Metz has now moved to dismiss Plaintiff’s Amended Complaint on the
grounds that it fails to state a claim under Rule 12(b)(6), or, in the alternative, that
he enjoys absolute or qualified immunity. Having reviewed and considered Metz’s
Motion and supporting brief, Plaintiff’s response thereto, supplemental briefing,
and the entire record of this matter, the Court has determined that the relevant
allegations, facts, and legal arguments are adequately presented in these written
submissions, and that oral argument would not aid the decisional process.
Therefore, the Court will decide this matter “on the briefs.” See Eastern District of
Michigan Local Rule 7.1(f)(2). The Court’s Opinion and Order is set forth below.
II. PERTINENT FACTS
A.

Michigan’s Film and Digital Media Tax Credit
The origins of this matter arise out of the State of Michigan’s tax incentives

for the film industry. As pertinent here, the “Film and Digital Media Tax Credit”
permits investors to claim a tax credit “for an investment in a qualified film and
digital media infrastructure project . . . equal to 25% of the taxpayer’s base

2

investment.” M.C.L. § 208.1457(1-2) (effective April 8, 2008).1 The Michigan
Film Office oversees the issuance of these credits, with the concurrence of
Michigan’s Treasurer.

§ 208.1457(1).

A “qualified film and digital media

infrastructure project” includes production and postproduction facilities, property
and equipment related to the facility, and “any other facility that is a necessary
component of the primary facility.” § 208.1457(11)(d). Finally, the tax credit
defines a “base investment” as:
[T]he cost, including fabrication and installation, paid or accrued in
the taxable year of tangible assets of a type that are, or under the
internal revenue code will become, eligible for depreciation,
amortization, or accelerated capital cost recovery for federal income
tax purposes, provided that the assets are physically located in this
state for use in a business activity in this state and are not mobile
tangible assets expended by a person in the development of a qualified
film and digital media infrastructure project. Base investment does
not include a direct production expenditure or qualified personnel
expenditure eligible for a credit under [a different provision of
Michigan’s film incentive, § 208.1455].
§ 208.1457(11)(a).
B.

The Development of the Lear Plant into a Film Production Facility
1.

Alpinist and West Michigan Films Agree To Redevelop the Lear
Plant

Alpinist Endeavors, LLC was a limited liability company co-owned by
Plaintiff and his father. (Plf’s Am. Compl., Dkt. # 18, at ¶ 9). It owned a former

1

After the events at issue in this lawsuit, Michigan significantly changed its film
industry tax credit program.
3

manufacturing plant just outside of Grand Rapids commonly known as the “Lear
Plant” or “Hangar 42.” (Id. at ¶¶ 10, 46). Recognizing that the large Lear Plant
might have potential as a film production facility, Plaintiff began working with an
investor, West Michigan Films, to redevelop the Lear Plant into a permanent film
studio. (Id. at ¶¶ 15-21). West Michigan Films, Alpinist, Plaintiff, and Plaintiff’s
father eventually reached two agreements to effectuate this redevelopment.
First, West Michigan Films agreed to purchase portions of the Lear Plant
from Alpinist for $40 million on a land contract. (Id. at ¶ 21(a)). West Michigan
Films’ purchase was contingent upon two things: (1) Alpinist making certain
improvements to allow the facility to be used as a film studio; and (2) West
Michigan Films qualifying for a $10 million infrastructure tax credit.

(Id.).

Indeed, the infrastructure tax credit was the linchpin to the purchase agreement; it
provided West Michigan Films with the necessary capital to be used for its down
payment to Alpinist:
West Michigan Films intended to sell the infrastructure tax credit to
an assignee, and use part of the proceeds to make a down payment to
Alpinist. The land contract would require no payments for the first
year; but would require West Michigan Films to pay a percentage of
revenue each year until fully paid. Thus, without the infrastructure
tax credit, the deal would not be done.
(Id.). Alpinist made the improvements and the parties eventually closed on this
land contract on April 5, 2010, in escrow, pending the issuance of the
infrastructure tax credit. (Id. at ¶¶ 21(a), 71).
4

Second, Plaintiff entered into a separate agreement with his father
concerning his father’s stake in Alpinist. Specifically, Plaintiff’s father agreed to
transfer his interest in Alpinist to Plaintiff “for over $800,000 and other
consideration (amounting to over $3 million). This agreement, which specifically
referenced the anticipated sale of [the portions of the Lear Plant] to West Michigan
Film[s] and gave Plaintiff clear title to the entire assets of Alpinist, was signed and
put into escrow to be closed no later than February 15, 2010.” (Id. at ¶ 21(b)).
2.

The Redevelopment Plan Falls Apart

Pursuant to its agreement with Alpinist, West Michigan Films began
working with the Michigan Economic Development Corporation (MEDC) and the
Michigan Film Office to put together a business plan that would meet state
approval for the infrastructure tax credit. (Id. at ¶ 27). Ultimately, in November
2009, the MEDC, the Michigan Film Office, and the Treasurer approved West
Michigan Films’ application for the tax credit. (Id. at ¶¶ 30, 34). In so approving,
the MEDC and the Michigan Film Office knew that the base investment claimed
on the Lear Plant was $40 million. (Id. at ¶¶ 29, 31).
The redevelopment plan, however, fell apart, culminating with the Film
Office’s decision to not finalize the tax credit -- declining to issue the
“Infrastructure Expenditure Credit certificate” -- on May 23, 2010. (Id. at ¶ 79).
Plaintiff asserts that the project’s downfall began when “politics intervened.” (Id.

5

at ¶ 37). Specifically, various individuals and organizations began questioning the
veracity of the project’s $40 million base investment price, when it had previously
been listed for sale a few months before for less than $10 million and had not
undergone $30 million in improvements. (Id. at ¶¶ 52, 77, 94). The claimed base
investment price, according to these individuals and organizations, “was inflated
purely to get the tax credit.” (Id. at ¶ 52).
C.

Plaintiff’s Arrest and Prosecution
Needless to say, this situation received significant media and public

attention. (Id. at ¶¶ 46, 47, 50, 61, 81-83). For example, one individual with close
ties to media in Grand Rapids sent at least one “whistleblower email” asserting that
the project was a fraud to state legislators and various advocacy groups opposing
tax credits. (Id. at ¶ 45). The election-cycle, and more specifically, the Republican
primary for governor in the summer of 2010, magnified this attention. Thengubernatorial candidate Representative Pete Hoekstra called for a criminal
investigation into the matter. (Id. at ¶ 85). One of Representative Hoekstra’s
opponents in the upcoming Republican gubernatorial primary was then-Attorney
General Mike Cox.

Individuals in the Michigan Film Office characterized

Representative Hoekstra’s call for an investigation as “a political ploy . . . to make
. . . Attorney General Cox . . . either investigate or seem soft on fraud.” (Id. at ¶
87). By June 16, 2010, the Attorney General had launched such an investigation.

6

(Id. at ¶ 84).

Metz was the Assistant Attorney General assigned to the

investigation and Motley was the investigator. (Id. at ¶¶ 88-89).
On August 2, 2010, the day before the Republican gubernatorial primary, the
Attorney General’s Office announced that it was filing criminal charges against Joe
Peters, West Michigan Films’ principal, for attempted fraud on the state. (Id. at ¶
91). Five months later, on January 25, 2011, Motley appeared before a magistrate,
presented a sworn affidavit with facts uncovered during the investigation, and
requested a warrant for Plaintiff’s arrest on similar charges. (Id. at ¶¶ 92, 102).
The magistrate granted this request. (Id. at ¶ 92). After Plaintiff’s booking and
subsequent release on bond, the state district court held preliminary examinations
in May, July, and September 2011, and eventually dismissed the charges against
Plaintiff and Peters for lack of probable cause. (Id. at ¶¶ 103-05).
D.

Plaintiff’s Claims
The crux of this case deals not with the reason for and propriety of the

state’s ultimate denial of the tax credit. Nor does it deal with Plaintiff’s failure to
ultimately convert the Lear Plant into a functioning film studio. Rather, Plaintiff
alleges misconduct arising out of the politically-motivated prosecution that
Defendants spearheaded.

7

1.

The Problems with Motley’s Affidavit

Plaintiff claims that Motley presented untrue statements to the magistrate,
which were “material to the issuance of the arrest warrant.” (Id. at ¶ 101). First,
the affidavit provided that “Plaintiff arranged for an appraisal in which he
suggested and insisted that the appraiser value the facility in excess of $40
million[] and that the appraisal relied in part upon the $40 million sales price as
part of the rationale for the final opinion of value.” (Id. at ¶ 94). Such statements
were false because “the appraiser had given a sworn, stenographically-recorded
statement before Defendant Metz . . . and Defendant Motley . . . . stat[ing] that he
did not rely on the sales price, but rather on the cost to replace the facility as a film
studio.” (Id. at ¶ 95). In short, “he stated that the value of the building for [use as
a film studio] was higher than its value for general industrial use.” (Id.). The
appraiser also “specially denied that his number was the result of any influence by
plaintiff.” (Id.).
Second, it “falsely suggested that Mr. Buchanan had a CPA falsify the
transaction by stating that the property had been sold.” (Id. at ¶ 96). This was
false because the CPA had also given a sworn and recorded statement to Metz and
Motley that Joe Peters had “asked him to send the Film Office [a] letter regarding
the sale of the facility to West Michigan Films” and that he “had reviewed the

8

closing papers and considered the property sold, but in escrow pending the
[issuance of the infrastructure tax credit].” (Id. at ¶ 97).
Third, the affidavit claimed “that there was no intent to sell because Mr.
Buchanan did not have the ability to transfer title.” (Id. at ¶ 98). Metz and Motley
“knew that this statement was false and misleading because they had in their
possession at the time the agreements and e-mails among Mr. Buchanan, his father,
and Alpinist’s attorney.” (Id. at ¶ 99). Those documents showed “that while Mr.
Buchanan’s father was Alpinist’s Manager with sole authority to sell the property,
he had agreed to the deal if it could be closed, had agreed to sell his entire interest
to Mr. Buchanan, and had had Alpinist’s attorney work diligently to get the sale to
West Michigan Films to closure.” (Id.)
Fourth, the “totality of the affidavit suggested a scheme in which the
property would never change hands, but the tax credit would be pocketed.” (Id. at
¶ 100). “Evidence in [Metz and Motley’s] possession at the time of the affidavit,
however, demonstrated that Alpinist, Mr. Buchanan, and West Michigan Films
intended that the property would change hands once the certificate of the
infrastructure tax credit was received.” (Id.).
2.

Metz’s Involvement

As pertinent to Metz’s instant Motion, Plaintiff sets forth the following facts
concerning Metz’s actions:

9

90.

[Metz (along with Motley)] gathered documents from various
persons, and conducted both unrecorded and stenographically
recorded statements from various people.
***

111. The defendant James Metz was actively involved in the
investigatory phase of the proceedings ultimately leading to the
prosecution of the plaintiff[.]
112. Upon information and belief, based in part on documents
already in the plaintiff’s possession, Mr. Metz’s functions in the
course of that process included or may have included:
a.

Determining, independently and in conjunction with the
defendant Motley, the witnesses and potential witnesses
who would be contacted and interviewed;

b.

planning the questioning for persons interviewed in the
course of the investigation;

c.

conducting critical interviews of the key witnesses who
provided testimony directly contrary to that which was
offered to the District Court judge at the time the warrant
was issued;

d.

observing interviews of other witnesses;

e.

examining documents obtained;

113. In addition to his role in the foregoing investigatory functions,
upon information and belief, the defendant Metz also may have
given advice to the defendant Motley concerning how the
investigation that (sic) was to be pursued and further gave
advice to Motley and others as to the propriety of the arrest of
plaintiff.
114. These functions were separate and distinct from his
prosecutorial functions which may have included making

10

determinations as to the appropriateness of charging plaintiff
and preparing paperwork for submission to the Court.
115. It is believed that both defendants Motley and Metz were fully
aware that the investigation was incomplete, that important
exculpatory evidence was being consciously ignored, such as
the existence of the land contract between Alpinist, LLC and
West Michigan Film, LLC, as well as escrow agreements
incident thereto.
116. Upon information and belief, defendant Metz was also:
a.

aware of the plaintiffs desire to disclose the true facts of
the transactions involved with Hangar 42 and the
application for tax credits so as to avoid an unwarranted
and unfounded prosecution;

b.

made or participated in the decision to avoid speaking
with plaintiff to obtain additional facts necessary to
[make] an informed decision to prosecute.

117. Had the investigation been performed in good faith and in a
legitimate attempt to uncover the truth, the prosecution never
would have been initiated.
118. Defendant Metz may also have conspired with Defendant
Motley to provide false information to the Court at that (sic)
time of the issuance of the warrant for plaintiff’s arrest.
(Id. at ¶¶ 90, 111-18).
Accordingly, Plaintiff asserts that Metz is liable for malicious prosecution
under the Fourth Amendment and Michigan common law.2 Metz has now moved

2

Plaintiff’s Amended Complaint also asserts false arrest in violation of the Fourth
Amendment and Michigan common law. Though somewhat inconsistent,
Plaintiff’s Response makes clear that he is not seeking to hold Metz liable for false
arrest. (Plf’s Resp., Dkt. # 26, at 2) (“den[ying] that Plaintiff claim[s] false arrest
11

to dismiss Plaintiff’s Complaint on the grounds that it fails to state a claim under
Rule 12(b)(6), or, in the alternative, that he enjoys absolute or qualified immunity.
As set forth below, the Court GRANTS Metz’s Motion.
III. DISCUSSION
A.

Standard of Review
In deciding a motion brought under Rule 12(b)(6), the Court must construe

the complaint in the light most favorable to Plaintiffs and accept all well-pled
factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 527 (6th Cir. 2007). To withstand a motion to dismiss, however, a
complaint “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Contrary to Plaintiff’s assertion that the old “no set of facts”
standard applies to Rule 12(b)(6) motions (Plf’s Resp., Dkt. # 26, at 9), the
Supreme Court made clear in Ashcroft v. Iqbal, 556 U.S. 662 (2009), that it
“retired” that standard. Id. at 670. Rather, the factual allegations in the complaint,
accepted as true, “must be enough to raise a right to relief above the speculative
level,” and must “state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

against Mr. Metz”); (but see id. at 4, 8, 14). Even if this were not the case, the
Court’s conclusion below concerning absolute immunity would apply equally to a
false arrest claim.
12

content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an
inference depends on a host of considerations, including common sense and the
strength of competing explanations for defendant’s conduct.” 16630 Southfield
Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).
The Sixth Circuit has emphasized that the “combined effect of Twombly and
Iqbal [is to] require [a] plaintiff to have a greater knowledge . . . of factual details
in order to draft a ‘plausible complaint.’” New Albany Tractor, Inc. v. Louisville
Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another
way, complaints must contain “plausible statements as to when, where, in what or
by whom,” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373
(6th Cir. 2011), in order to avoid merely pleading an “unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
B.

Analysis
1.

Eleventh Amendment Immunity

Though Metz does not assert that the Eleventh Amendment bars Plaintiff’s
claims, the Court is inclined to briefly discuss its applicability because “the
question of sovereign immunity . . . implicates important questions of federal-court
jurisdiction and federal state comity.’” Cady v. Arenac Cnty., 574 F.3d 334, 344
(6th Cir. 2009) (citation omitted); Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir.

13

1999) (a federal court “may sua sponte raise the issue of lack of jurisdiction
because of the applicability of the eleventh amendment”). Because Defendants are
state officials, any suit for monetary damages in their official capacity is deemed to
be an action against the state of Michigan and therefore subject to dismissal under
the Eleventh Amendment. Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th
Cir. 2004).
A plaintiff seeking relief under 42 U.S.C. § 1983 “must clearly notify any
defendant[] of [his] intent to seek individual liability.” Moore v. City of Harriman,
272 F.3d 769, 775 (6th Cir. 2001). In this case, Plaintiff has not specifically
designated the capacity in which he is suing the Defendants. Under the Sixth
Circuit’s “course of proceedings” test, however, a plaintiff who does not
affirmatively plead individual capacity may otherwise put a defendant on notice of
an individual capacity suit. Id. at 772-74. This test “considers such factors as the
nature of the plaintiff’s claims, requests for compensatory or punitive damages,
and the nature of any defenses raised in response to the complaint, particularly
claims of qualified immunity, to determine whether the defendant had actual
knowledge of the potential for individual liability.” Id. at 772 n. 1 (emphasis
added).

Here, though Plaintiff did not affirmatively plead that he is suing

Defendants in their individual capacities, his prayer for monetary damages plus
Metz’s assertion of the qualified immunity defense indicates that Metz was aware

14

of potential liability in his individual capacity. Garcia v. Dykstra, 260 F. App’x
887, 895 (6th Cir. 2008) (state actors were “on notice of the possibility of an
individual capacity § 1983 claim” due to the plaintiff’s “demand for money
damages” and the defendants’ assertion of qualified immunity as an affirmative
defense); Lindsay v. Bogle, 92 F. App’x 165, 169 (6th Cir. 2004) (“Although a
request for monetary damages alone may not suffice to establish the requisite
notice, the assertion of a qualified-immunity defense (even a contingent qualifiedimmunity defense) indicates that the defendants were aware they could be held
personally liable.”) (internal citations omitted). Accordingly, this Court finds that
Plaintiff has sued Metz in his individual capacity to which Eleventh Amendment
immunity does not apply.
2.

Absolute Immunity

“State prosecutors are absolutely immune from civil liability when acting
within the scope of their prosecutorial duties.” Howell v. Sanders, 668 F.3d 344,
349 (6th Cir. 2012) (citing Imbler v. Pachtman, 424 U.S. 409 (1976)).3 “[T]he

3

As Metz points out and Plaintiff does not contest, Michigan law governing
prosecutorial immunity substantially mirrors the Imbler standard. See, e.g,
Cheolas v. City of Harper Woods, 2009 WL 388548, at *9 (E.D. Mich. Feb. 13,
2009) (Rosen, C.J.) (citing Payton v. Wayne Cnty., 137 Mich. App. 361 (1984) and
Davis v. Eddie, 130 Mich. App. 284 (1983)); but see Wendrow v. Mich. Dept. of
Human Servs., 534 F. App’x 516, 534 n.2 (6th Cir. 2013) (questioning but not
deciding “whether Michigan’s 1986 governmental-immunity statute eliminated the
common-law immunity that Michigan previously afforded to lower-level
15

official seeking absolute immunity bears the burden of showing that such
immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478,
486 (1991). Prosecutorial immunity flows from the common-law and “is based
upon the same considerations that underlie the common-law immunities of judges
and gran[d] jurors acting within the scope of their duties. These include concern
that harassment by unfounded litigation would cause a deflection of the
prosecutor’s energies from his public duties, and the possibility that he would
shade his decisions instead of exercising the independence of judgment required by
his public trust.” Imbler, 424 U.S. at 422-23. “Although absolute immunity
‘leave[s] the genuinely wronged defendant without civil redress against a
prosecutor whose malicious or dishonest action deprives him of liberty,’ ‘the
broader public interest’ would be disserved if defendants could retaliate against
prosecutors who were doing their duties.” Adams v. Hanson, 656 F.3d 397, 401-02
(6th Cir. 2011) (alteration in original) (citing Imbler).
The key to determining whether a prosecutor is entitled to absolute
immunity requires analyzing whether the prosecutor’s alleged activities “were
intimately associated with the judicial phase of the criminal process.” Imbler, 424
U.S. at 430. If so, then a prosecutor is absolutely immune from liability, even for
egregious conduct such as “the knowing use of false testimony and the suppression
prosecutors for their quasi-judicial actions”). Accordingly, Defendant’s immunity
arguments rise and fall with federal law.
16

of material evidence at [a] criminal trial.” Spurlock v. Thompson, 330 F.3d 791,
797 (6th Cir. 2003) (citing Imbler). There are limits to this broad rule. “[T]he
actions of a prosecutor are not absolutely immune merely because they are
performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
Instead, courts are to apply a “‘functional approach,’ which looks at ‘the nature of
the function performed, not the identity of the actor who performed it.’” Id. at 269
(internal citation omitted). “[T]he critical inquiry is how closely related is the
prosecutor’s challenged activity to his role as an advocate intimately associated
with the judicial phase of the criminal process.”

Spurlock, 330 F.3d at 798.

(internal quotation marks and citation omitted).
In Buckley, for example, the Supreme Court focused on the distinction
between a prosecutor’s “investigative” and “judicial” acts:
A prosecutor’s administrative duties and those investigatory functions
that do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to absolute
immunity. We have not retreated, however, from the principle that
acts undertaken by a prosecutor in preparing for the initiation of
judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State, are entitled to the protections of
absolute immunity. Those acts must include the professional
evaluation of the evidence assembled by the police and appropriate
preparation for its presentation at trial or before a grand jury after a
decision to seek an indictment has been made.
***
There is a difference between the advocate’s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on the
17

one hand, and the detective’s role in searching for the clues and
corroboration that might give him probable cause to recommend that a
suspect be arrested, on the other hand. When a prosecutor performs
the investigative functions normally performed by a detective or
police officer, it is “neither appropriate nor justifiable that, for the
same act, immunity should protect the one and not the other.” Thus, if
a prosecutor plans and executes a raid on a suspected weapons cache,
he “has no greater claim to complete immunity than activities of
police officers allegedly acting under his direction.”
509 U.S. at 273-74 (internal citations omitted). The Buckley Court also rejected
the notion that a prosecutor may “shield his investigative work with the aegis of
absolute immunity merely because, after a suspect is eventually arrested, indicted,
and tried, that work may be retrospectively described as ‘preparation’ for a
possible trial.” Id. at 276. Accepting such an argument would mean that “every
prosecutor might then shield himself from liability for any constitutional wrong
against innocent citizens by ensuring that they go to trial.” Id. Applying this
reasoning, the Supreme Court held that absolute immunity did not apply to a
prosecutor’s investigation done in part to establish probable cause, as well as to
statements made to the press. Id. at 274-77.
“The line between conduct that is part of a preliminary investigation and
conduct that is intimately associated with the judicial phase of a criminal
proceeding is difficult to draw in some cases.” Prince v. Hicks, 198 F.3d 607, 612
(6th Cir. 1999). Despite Plaintiff’s assertion to the contrary (Plf’s Resp., Dkt. # 26,
at 15-16), “[t]he dividing line” between these acts “is not . . . the point of

18

determination of probable cause. Instead, the dividing line is the point at which the
prosecutor performs functions that are intimately associated with the judicial phase
of the criminal process.” Prince, 198 F.3d at 614.4 As applicable to the case at
bar, the Sixth Circuit helped further refine this distinction in Ireland v. Tunis, 113
F.3d 1435 (6th Cir. 1997), and Prince v. Hicks, 198 F.3d 607 (1999).
In Ireland, the Sixth Circuit clarified that “[i]nvestigative acts undertaken in
direct preparation of judicial proceedings, including the professional evaluation of
evidence, warrant absolute immunity, whereas other acts, such as the preliminary
gathering of evidence that may ripen into a prosecution, are too attenuated to the
judicial process to afford absolute protection.” 113 F.3d at 1445. This includes “a
prosecutor’s decision to file a criminal complaint and seek an arrest warrant and
the presentation of these materials to a judicial officer.” Id. at 1445. “In this role,”
continued the Sixth Circuit, “a prosecutor is unquestionably functioning as an
4

In Prince, the Sixth Circuit discussed the Supreme Court’s language in Buckley
that “[a] prosecutor neither is, nor should consider himself to be, an advocate
before he has probable cause to have anyone arrested.” Id. at 614 (citing Buckley,
509 U.S. at 274). This quote, without context, appears to draw the bright line
Plaintiff so articulates. As the Sixth Circuit explained in Prince, however, “[a]
footnote in Buckley following the above-quoted sentence clarifies a point that
[Plaintiff] fails to recognize. A prosecutor performing an investigative function
before she has probable cause to arrest a suspect cannot expect to receive the
protection of absolute immunity, but a prosecutor who initiates criminal
proceedings against a suspect whom she had no probable cause to prosecute is
protected by absolute immunity.” Id.; see also Gregory v. City of Louisville, 444
F.3d 725, 740 (6th Cir. 2006) (“The Buckley Court dismissed the argument that
probable cause was a dividing line for potential liability attendant to prosecutors’
actions.”).
19

advocate for the state in the judicial process, and absolute immunity is fully
justified because the integrity of the judicial system depends in large part upon a
prosecutor’s ability to exercise independent judgment in deciding whether and
against whom to bring criminal charges.” Id. This also includes “administrative or
investigative acts necessary for a prosecutor to initiate or maintain the criminal
prosecution.”

Id. at 1447.

But, “not all investigative acts undertaken by a

prosecutor will be absolutely protected. Conducting a preliminary investigation is
generally removed from a prosecutor’s role in a judicial proceeding; ‘such
investigations take place outside the adversarial arena with its attendant safeguards
that provide real and immediate checks to abusive practices.’” Id. at 1447 n.7.
(citation omitted).
Applying these principles to the prosecutors’ actions (an alleged
involvement in bringing politically motivated criminal charges), the Sixth Circuit
held in Ireland that they were “entitled to absolute prosecutorial immunity for
deciding to file a criminal complaint against [the plaintiff], authorizing and
preparing the complaint, seeking a warrant for her arrest, and . . . presenting the
charging documents to the judge [because t]hese were advocacy functions
intimately associated with the judicial phase of the criminal process.” Id. at 1447.
Importantly, and in contrast to Plaintiff’s allegations regarding Metz’s role here,
the plaintiff in Ireland did not “contend that her alleged constitutional deprivation

20

arose from the prosecutors’ investigative activities undertaken antecedent to the
decision to file criminal charges.” Id.
A few years later, the Sixth Circuit affirmed the denial of absolute immunity
for a prosecutor’s preliminary investigatory conduct and advice regarding the
existence of probable cause in Prince. The underlying facts in Prince revolved
around a custody dispute involving the plaintiff’s grandson. 198 F.3d at 610.
Plaintiff -- a vocal critic of the local District Attorney General -- agreed to take
physical custody of her grandson while one of his parents entered a drug treatment
program. Id. Upon the parents’ demand for her to return their child, plaintiff
sought an emergency protective custody order fearing that the parents would leave
the state. Id. The parents then contacted the defendant, an Assistant District
Attorney General, who eventually sought and received an arrest warrant for the
plaintiff. Id.
After the charges were dropped, the plaintiff sought to hold the defendant
liable for her “alleged investigation of, or failure to investigate adequately,
criminal charges against [the plaintiff.]” Id. The plaintiff’s allegations concerning
the defendant’s investigatory role were as follows:
After the [the child’s parents] contacted [the defendant], she and
Defendant Hazelhurst, an Anderson County detective, undertook to
perform an investigation of the circumstances surrounding the
[parents’] complaints or, alternatively, performed no investigation or a
grossly inadequate investigation. Prior to the establishment of any
probable cause whatsoever for the arrest or charging of the Plaintiff
21

with a crime, the Defendants knew or should have known that the
Plaintiff had applied for an emergency protective custody order with
the Juvenile Court for Knox County, Tennessee, were aware or should
have been aware of the circumstances surrounding Plaintiff’s taking
physical custody of the child and were aware or should have been
aware that there was no probable or justifiable cause to believe
Plaintiff had committed or was committing a crime.
Id. at 611. Focusing “on the specific circumstances of the case” as alleged in the
plaintiff’s complaint, the Sixth Circuit affirmed the denial of absolute immunity
because the “allegations refer to conduct that occurred while [the defendant]
performed administrative and investigative functions that were not intimately
associated with the judicial phase of the criminal proceedings.” Id. at 613. The
Sixth Circuit continued:
In her amended complaint, [plaintiff] claims that [the defendant]
engaged in unconstitutional conduct when she “undertook to perform
an investigation of the circumstances surrounding [the daughter and
son-in-law’s] complaints or, alternatively, performed no investigation
or a grossly inadequate investigation.” Because [the defendant] has
failed to meet her burden to show that the alleged investigation or
failure to investigate was intimately associated with the judicial phase
of the criminal process, the district court properly refused to dismiss
the allegations contained in ¶ 13 of the amended complaint on
absolute immunity grounds.
Id. (citing Buckley, 509 U.S. at 274 (“A prosecutor neither is, nor should consider
himself to be, an advocate before he has probable cause to have anyone arrested.”);
Ireland, 113 F.3d at 1447 n. 7 (“Conducting a preliminary investigation is
generally removed from a prosecutor’s role in a judicial proceeding; ‘such
investigations take place outside the adversarial arena with its attendant safeguards
22

that provide real and immediate checks to abusive practices.’”)); see also Heard v.
City of Hazel Park, 2012 WL 1867313, at *3 (E.D. Mich. May 22, 2012) (Cook, J)
(similar); Coopshaw v. Figurski, 2008 WL 324103, at *6-11 (E.D. Mich. Feb. 6,
2008) (Borman, J.) (similar).
“Because ‘[a]lmost any action by a prosecutor, including his or her direct
participation in purely investigative activity, could be said to be in some way
related to the ultimate decision whether to prosecute,’ [this Court] must identify
precisely the wrongful acts allegedly performed by [Metz], and classify those acts
according to their function.” Adams, 656 F.3d at 403 (quoting Burns, 500 U.S. at
495). Here, Plaintiff’s allegations concerning Metz can be broken down into three
general functional categories: (a) participation in the investigation into the Lear
Plant redevelopment deal; (b) giving advice regarding the investigation and the
propriety of Plaintiff’s arrest; and (c) initiating Plaintiff’s prosecution. Each is
addressed in turn.
a.

Participation in the Investigation Into the Lear Plant
Redevelopment Deal

The bulk of Plaintiff’s facts concerning Metz land in this category,
undoubtedly in an attempt to avoid absolute immunity.5 Plaintiff alleges that Metz
“gathered documents from various persons, and conducted both unrecorded and
5

Plaintiff added these factual assertions as part of his Amended Complaint,
apparently in response to a threatened motion to dismiss on prosecutorial immunity
grounds.
23

stenographically recorded statements from various people.” (Plf’s Am. Compl.,
Dkt. # 18, at ¶ 90).

More specifically, Metz engaged in the following

“investigatory acts:”
• Determining, independently and in conjunction with the defendant
Motley, the witnesses and potential witnesses who would be
contacted and interviewed;
• Planning the questioning for persons interviewed in the course of
the investigation;
• Conducting critical interviews of the key witnesses who provided
testimony directly contrary to that which was offered to the District
Court judge at the time the warrant was issued;
• Observing interviews of other witnesses; and
• Examining documents obtained.
(Id. at ¶ 112). Metz also “consciously ignored” “important exculpatory evidence,”
(Id. at ¶ 114), and “made or participated in the decision to avoid speaking with
plaintiff” despite being aware of Plaintiff’s desire to disclose information in order
to avoid prosecution. (Id. at ¶ 116).
These factual allegations, taken as true, only relate to the investigative steps
Metz took in concert with Motley before the magistrate’s finding of probable cause
and not to any other function. They are, therefore, not distinguishable from those
in Prince and Buckley and mandate a finding that Metz is not entitled to absolute
immunity for his participation in the investigation. Metz has failed to meet his
burden to show that his investigation and/or lack of investigation “was intimately
associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at

24

430. Stated differently, he has failed to put forth evidence that his investigation
was part and parcel with his advocacy function in preparation for a judicial
proceeding and was not just done to assist in establishing probable cause. Prince,
198 F.3d at 613.

And, that Plaintiff was charged with a crime does not

retroactively convert Metz’s role in the investigation into a prosecutorial function.
Buckley, 509 U.S. at 275-76.
The Court does not take Metz’s policy arguments as to why absolute
immunity should apply lightly.

Prosecutors are often involved with criminal

investigations before probable cause determinations, but Metz’s argument that
“[d]enying absolute immunity in a case such as this would likely ‘eviscerate’ . . .
absolute immunity” is overstated. (Def’s Br., Dkt. # 23, at 15). It, in no uncertain
terms, ignores the Supreme Court and Sixth Circuit’s cautions to “focus on the
specific conduct at issue in a case . . . [because] the absolute immunity question
nonetheless turns on the specific circumstances of the case.” Prince, 198 F.3d at
612 (citations omitted and emphasis added). Here, the specific circumstances
relative to Metz’s investigative function, as set forth above, dictate a finding of no
absolute immunity.
b.

Giving Advice Regarding the Investigation and the
Propriety of Plaintiff’s Arrest

Plaintiff asserts, upon information and belief, that Metz “may have given
advice to the defendant Motley concerning how the investigation that (sic) was to
25

be pursued and further gave advice to Motley and others as to the propriety of the
arrest of plaintiff.” (Id. at ¶ 113). The Court declines Metz’s broad invitation to
hold that advice provided by a prosecutor to an investigator as to how to pursue an
investigation or as to the propriety of an arrest constitutes “the professional
evaluation of the evidence assembled.” (Def’s Br., Dkt. # 23, at 14). Just as in
Prince, Plaintiff alleges that Metz gave Motley legal advice prior to the existence
of probable cause and prior to Motley’s testimony to the magistrate that initiated
criminal proceedings against Plaintiff. Considering Plaintiff’s Complaint in the
light most favorable to Plaintiff, Metz was not acting as an advocate for the state in
so advising Motley. Prince, 198 F.3d at 613-15. Accordingly, Metz is not entitled
to absolute immunity in this function either.
c.

Initiating Plaintiff’s Prosecution

Finally, though he makes absolutely clear that the above-referenced
“functions were separate and distinct from his prosecutorial functions which may
have included making determinations as to the appropriateness of charging
plaintiff and preparing paperwork for submission to the court,” Plaintiff’s
Complaint also sets forth facts related to the prosecutorial process.
Compl., Dkt. # 18, at ¶ 114).

(Plf’s Am.

He, for example, asserts that Metz avoided

interviewing Plaintiff “to obtain additional facts necessary to [make] an informed
decision to prosecute.” (Id. at ¶ 116(b)) (emphasis added). Plaintiff also asserts

26

that “[h]ad the investigation been performed in good faith and in a legitimate
attempt to uncover the truth, the prosecution never would have been initiated.” (Id.
at ¶ 117). Accordingly, Plaintiff summarily concludes that Metz “may also have
conspired with Defendant Motley to provide false information to the court at that
(sic) time of the issuance of the warrant for plaintiff’s arrest.” (Id. at ¶ 118).
These functions clearly relate to the decision to prosecute, to which absolute
immunity absolutely applies. Burns, 500 U.S. at 484 (prosecutors have absolute
immunity from “suits for malicious prosecution and . . . this immunity extend[s] to
the knowing use of false testimony before the grand jury and at trial”); Buckley,
509 U.S. at 274 n. 5 (acknowledging that absolute immunity shields “a
prosecutor’s decision to bring an indictment, whether he has probable cause or
not”); Spurlock, 330 F.3d at 797 (“[P]rosecutors are absolutely immune from many
malicious prosecution claims.”).
3.

Plaintiff’s Complaint Fails to Identify Any Actions Taken By
Metz That Are Outside the Scope of Prosecutorial Immunity

As to those remaining “functions” to which absolute immunity does not
apply, Metz asserts that qualified immunity applies in the alternative. This Court
need not address this argument, however, as “the better approach to resolving cases
in which the defense of qualified immunity is raised is to determine first whether
the plaintiff has alleged a deprivation of a constitutional right at all.” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998) (citation omitted). Upon
27

review of Plaintiff’s Amended Complaint, it is clear that Plaintiff’s alleged injuries
attributable to Metz arise out of his prosecution for attempted fraud against the
state -- not any investigative misconduct independent of the prosecution.

As

indicated above, there is no doubt that Metz is absolutely immune for any role he
played in Plaintiff’s prosecution. In order for Plaintiff’s lawsuit against Metz to
proceed, therefore, he must link his malicious prosecution claims to the
investigation in order to avoid absolute immunity.
“To succeed on a malicious-prosecution claim under § 1983 when the claim
is premised on a violation of the Fourth Amendment, a plaintiff must prove the
following:”
First, the plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant made, influenced, or
participated in the decision to prosecute. Second, because a § 1983
claim is premised on the violation of a constitutional right, the
plaintiff must show that there was a lack of probable cause for the
criminal prosecution. Third, the plaintiff must show that, as a
consequence of a legal proceeding, the plaintiff suffered a deprivation
of liberty, as understood in our Fourth Amendment jurisprudence,
apart from the initial seizure. Fourth, the criminal proceeding must
have been resolved in the plaintiff’s favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (internal citations,
quotations, and alternations omitted). The elements of a malicious prosecution
claim under Michigan law are slightly different:
To make out a case of malicious prosecution under Michigan law, the
plaintiff has the burden of proving (1) that the defendant had initiated
a criminal prosecution against him, (2) that the criminal proceedings
28

terminated in his favor, (3) that the private person who instituted or
maintained the prosecution lacked probable cause for his actions, and
(4) that the action was undertaken with malice or a purpose in
instituting the criminal claim other than bringing the offender to
justice.
Alman v. Reed, 703 F.3d 887, 902 (6th Cir. 2013) (citing Matthews v. Blue Cross
& Blue Shield of Michigan, 456 Mich. 365 (1998)) (quotations and alterations
omitted).

Plaintiff’s problem, however, is that he has not alleged that Metz

violated his Constitutional and Michigan Common law rights when Metz engaged
in functions not covered by absolute immunity.
Just like the line delineating prosecutorial conduct protected by absolute
immunity from conduct that is not is difficult to draw, so too is the line between
prosecutorial immunity and stating a claim for relief. In Buckley, which involved
an allegation that a prosecutor fabricated evidence during his investigation, the
Supreme Court articulated this similar line-drawing problem:
As we have noted, the Imbler approach focuses on the conduct for
which immunity is claimed, not on the harm that the conduct may
have caused or the question whether it was lawful. The location of the
injury may be relevant to the question whether a complaint has
adequately alleged a cause of action for damages.
Buckley, 509 U.S. at 271-72 (emphasis added); see also id. at 274 n.5 (“[T]he
dissent’s distress over the denial of absolute immunity for prosecutors who
fabricate evidence regarding unsolved crimes . . . seems to conflate the question
whether a § 1983 plaintiff has stated a cause of action with the question whether

29

the defendant is entitled to absolute immunity for his actions.”). Justice Scalia
fleshed out this point in his concurrence:
[M]any claims directed at prosecutors, of the sort that are based on
acts not plainly covered by the conventional malicious-prosecution
and defamation privileges, are probably not actionable under § 1983,
and so may be dismissed at the pleading stage without regard to
immunity--undermining the dissent’s assertion that we have converted
absolute prosecutorial immunity into “little more than a pleading
rule,” I think petitioner’s false-evidence claims in the present case
illustrate this point. Insofar as they are based on respondents’
supposed knowing use of fabricated evidence before the grand jury
and at trial -- acts which might state a claim for denial of due process - the traditional defamation immunity provides complete protection
from suit under § 1983. If “reframe[d] . . . to attack the preparation”
of that evidence, the claims are unlikely to be cognizable under §
1983, since petitioner cites, and I am aware of, no authority for the
proposition that the mere preparation of false evidence, as opposed to
its use in a fashion that deprives someone of a fair trial or otherwise
harms him, violates the Constitution.
Id. at 281 (Scalia, J, concurring) (internal citations omitted and alterations in
original).
A trio of more recent decisions address this pleading dichotomy and support
the dismissal of Plaintiff’s claims against Metz. First, take the Sixth Circuit’s
decision in Koubriti v. Convertino, 593 F.3d 459 (6th Cir. 2010), a case that spunoff from the so-called “Detroit Sleeper Cell” matter over which this Court
presided. See U.S. v. Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004) (Rosen, J.).
In Convertino, the defendant was the Assistant United States Attorney responsible
for successfully prosecuting Koubriti on terrorism-related charges. Convertino,

30

593 F.3d at 463. As it turned out, Convertino was successful in the criminal case
largely because he utterly failed to turn over exculpatory materials and misled the
Court, the jury, Koubriti and the other Defendants “as to the nature, character and
complexion of critical evidence that provided important foundations for the
prosecution’s case.” Koubriti, 336 F. Supp. 2d at 681.
After a lengthy post-verdict investigation ordered by the Court, the Court
vacated the convictions, and Koubriti then filed a Bivens action, alleging that
Convertino violated the Fifth Amendment “by maliciously and intentionally
withholding exculpatory evidence and fabricating evidence contrary to Brady v.
Maryland, 373 U.S. 83, 87 (1963).” Convertino, 593 F.3d at 469-70. As pertinent
here, Koubriti alleged that Convertino did not disclose that the government could
not establish the location of certain sites depicted in suspicious drawings in a day
planner allegedly tied to Koubriti. Id. at 462, 466. In finding that the district court
erred in not granting Convertino absolute immunity as to this allegation, the Sixth
Circuit held that this was “nothing more than an accusation that Convertino failed
to disclose exculpatory evidence” and that it is clear that “prosecutors have
absolute immunity from civil liability for the non-disclosure of exculpatory
information at trial.” Id. at 467-68 (citing Imbler, 424 U.S. at 431 and Jones v.
Shankland, 800 F.2d 77 (6th Cir. 1986)).

31

In an attempt to distance himself from this general rule, Koubriti argued that
Convertino’s investigation produced the exculpatory evidence, which therefore
negated absolute immunity. Id. at 468. The Sixth Circuit rejected this argument:
Koubriti attempts to distinguish his claim by focusing on the
circumstances surrounding the acquisition of the alleged exculpatory
information produced by Convertino’s investigation instead of the
actual non-disclosure of the information. In his brief to this court,
Koubriti highlights the fact that Convertino traveled to Jordan some
fifteen months before the trial began and investigated the buildings
allegedly depicted in the day planner sketches. The district court, in
agreeing with Koubriti, stated that “immunity cannot extend to actions
by a prosecutor that violate a person’s substantive due process rights
by obtaining, manufacturing, coercing or fabricating evidence before
filing formal charges, even if the subsequent use of that evidence is
protected by absolute immunity.” The argument made by Koubriti
and the district court fails to recognize that Koubriti is not requesting
relief for some alleged violation that took place during Convertino’s
trip to Jordan. There is nothing in the complaint to suggest that
Koubriti is arguing that he is entitled to relief here because of some
due process violation Convertino committed while he investigated the
case in Jordan. That would be a different claim. . . . Instead, what we
have in the instant case is an allegation that relies on Brady--a case
dealing with the non-disclosure at trial of exculpatory information-and is based on the non-disclosure of a pertinent fact, not the
underlying investigation itself. There is no claim here of evidence
fabrication, and it is not the evidence that resulted from the trip of
which Koubriti complains.
***
The very same policy reasons undergirding the Supreme Court’s
decision in Imbler also counsel in favor of recognizing absolute
immunity here. Since prosecutors are almost always involved with
the police’s investigation of crimes, denying absolute immunity in
cases such as this would likely “eviscerate” the absolute immunity in
traditional non-disclosure claims that the Supreme Court has already
decided to protect. Likewise, it would “weaken the adversarial
32

system” and interfere with prosecutorial discretion much in the same
way that caused the Imbler Court to rule in favor of granting
immunity. Since Plaintiff’s claim (and underlying harm) is only
related to the non-disclosure and not the underlying investigation, the
Imbler and Jones dispositions lead us to the conclusion that
Convertino has absolute immunity from this claim.
Id. at 468-69 (emphasis added and internal citations omitted).
Instructive here as well is Bianchi v. McQueen, 917 F. Supp. 2d 822 (N.D.
Ill. 2013), in a case alleging that state special prosecutors abused their positions by
bringing criminal charges against Illinois State Attorneys as part of a “politically
motivated conspiracy.” Id. at 825. As pertinent here, the plaintiffs claimed that
these special prosecutors manufactured evidence as it related to allegations that the
plaintiffs engaged in official misconduct, such as having staff perform political
work, theft/misappropriation, and giving benefits in criminal prosecutions to
friends, relatives, and supporters. Id. at 825-26. The special prosecutors presented
this manufactured evidence and other false statements to a grand jury, which
ultimately resulted in criminal charges against the plaintiffs. These charges were
eventually dismissed and plaintiffs instituted litigation against the special
prosecutors, alleging, among other claims, false arrest under 42 U.S.C. § 1983. Id.
at 827.
In dismissing plaintiffs’ false arrest claim, the court refused to connect the
allegations of participating in a “sham” investigation to the Plaintiffs’ alleged

33

constitutional injury. Because similar factual issues are at play in this case, the
Court extensively quotes Judge Dow’s opinion in Bianchi:
Plaintiffs were arrested after they were indicted by a grand jury and
warrants were issued based on the indictments. McQueen cannot be
liable for false arrest if Plaintiffs were arrested because of witness
testimony or his presentation of witness testimony before the grand
jury. A prosecutor’s conduct before a grand jury is absolutely
immune. . . . Of course, if a prosecutor manufactured incriminating
evidence while investigating a case, presented that manufactured
evidence to the grand jury, and the grand jury returned an indictment,
he could not claim absolute immunity for what he did during the
investigation. A judicial proceeding does not automatically immunize
misconduct that happened before it. But, by the same token, just
because a prosecutor was involved in a case in an investigatory role
does not mean that he is deprived of immunity for what he did as a
prosecutor.
***
In this case, at least for Plaintiffs’ false arrest claims, the only
allegations against McQueen are that he interviewed witnesses and
reviewed . . . reports of interviews with witnesses and that those
witnesses and [others] testified and produced documents to the grand
jury. McQueen, too, is alleged to have testified before the grand jury.
The claim is therefore that (1) witnesses gave false or misleading
testimony to the grand jury that included rumor, hearsay, and
manufactured and/or fabricated evidence, (2) that testimony persuaded
the grand jury to issue an indictment, and (3) that indictment caused
an arrest. Plaintiffs’ false arrest claim against McQueen thus is an
attack on grand jury testimony and a prosecutor’s conduct before a
grand jury (as a witness and a lawyer). This is not a case where a
prosecutor is claiming immunity for investigatory conduct just
because it was part of a series of events that led to a judicial
proceeding. Here, it is plainly conduct at a judicial proceeding-grand jury testimony--that Plaintiffs claim caused their injuries
related to the allegedly false arrest.

34

In order to find that the indictment, and so the arrest, was improper,
the Court would have to scrutinize grand jury transcripts and decide
whether witnesses (including McQueen) perjured themselves before
the grand jury. That, however, is precisely what the Court cannot do
in deciding a claim for money damages against a prosecutor.
Especially following the Supreme Court’s recent decision in Rehberg
[v. Paulk, 132 S. Ct. 1497 (2012)], the Court is not persuaded by
Plaintiffs’ argument that they are seeking damages for a conspiracy to
present false testimony or a conspiracy to prepare witnesses to give
false testimony. . . . That does not immunize all preparation or turn all
investigation into preparation. But that is not what is going on here.
Here, the relevant allegations are that evidence was presented to a
grand jury and that the evidence was reviewed before it was
presented. Plaintiffs cannot “reframe” their challenge to (allegedly)
false or repudiated grand jury testimony by pointing to alleged
misconduct at the outset of the investigation. It was not the mere
existence of an investigation that caused Plaintiffs’ arrest; testimony
before the grand jury did that.
Plaintiffs have not stated a plausible claim that improper actions by
McQueen outside the scope of his duties as a prosecutor infected the
grand jury proceedings and so somehow caused Plaintiffs’ arrests.
One more time, recall the alleged causal chain. Amy Dalby, an SAO
employee, shared confidential documents with Bianchi's Republican
primary opponent and the media. Bianchi got a special prosecutor
appointed. Dalby was investigated and eventually pled guilty to
computer tampering. Dalby then petitioned Judge Graham to appoint
a special prosecutor to investigate Bianchi, alleging that he abused his
position at the SAO. Judge Graham granted Dalby’s petition and
appointed Tonigan and McQueen as special prosecutors. Tonigan and
McQueen interviewed Dalby and others and asked for Judge Graham
to expand the scope of their investigation. Judge Graham granted that
request, and there were more interviews and documents produced. A
grand jury convened and witnesses (including McQueen) appeared
before it. The grand jury indicted Plaintiffs, and the indictments led to
their arrests. Where is McQueen’s misconduct outside his role as a
prosecutor (or before the grand jury)? Plaintiffs point to the Tonigan
letter [that “contained blatantly false statements” to Judge Graham
requesting to expand the investigation] through which they allege that
Tonigan and McQueen manipulated Judge Graham to have their
35

mandate expanded. But that did not cause Plaintiffs’ arrests. At most,
that led to interviews, and those interviews did not violate the Fourth
Amendment. Plaintiffs (quite properly) are not claiming a right not to
be investigated or talked about. Individuals were interviewed and
then testified before the grand jury. In the context of this case at least,
interviewing a witness before his or her testimony before a grand jury
is conduct within the scope of McQueen’s role as a prosecutor and so
is absolutely immune. Testimony before the grand jury is absolutely
immune. And, as has long been the rule, a prosecutor’s conduct
before a grand jury is absolutely immune.
Id. at 830-32 (emphasis added and internal citations omitted).
Finally, both the procedural history and language from the Supreme Court’s
recent decision in Rehberg ultimately drives home this Court’s conclusion. The
Rehberg plaintiff sued a district attorney, a specially-appointed prosecutor, and an
investigator alleging various § 1983 claims -- including one for malicious
prosecution -- relating to being indicted three separate times for different charges
that the state court eventually dismissed. As applicable here, the plaintiff lodged
complaints concerning prosecutorial misconduct during the pre-indictment
investigation, as set forth by the Eleventh Circuit:
Hodges [the District Attorney] and Paulk [the Chief Investigator],
acting as investigators, got together as a favor to the hospital, with
malice and without probable cause, and made up a story about
Rehberg, and then Paulk (at Hodge’s direction) told that fake story
under oath to the grand jury, leading to Rehberg’s indictment and
arrest.
Rehberg v. Paulk, 611 F.3d 828, 840 (11th Cir. 2010). The Eleventh Circuit
concluded that absolute immunity barred the plaintiff’s claims, reasoning that

36

“[s]ince Paulk receives absolute immunity for his false testimony before the grand
jury, Hodges and Paulk are similarly immune for their alleged conspiracy to
fabricate and present false testimony to the grand jury.” Id. at 841 (citing, inter
alia, Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999) (“To allow a § 1983 claim
based on subornation of perjured testimony where the allegedly perjured testimony
itself is cloaked in absolute immunity would be to permit through the back door
what is prohibited through the front.”)). The Eleventh Circuit also noted that in
contrast to other cases involving prosecutorial misconduct during investigations,
there is no allegation of any physical or expert evidence that Hodges
or Paulk fabricated or planted. There is no allegation of a preindictment document such as a false affidavit or false certification.
Rather, Hodges and Paulk are accused of fabricating together only the
testimony Paulk later gave to the grand jury. No evidence existed
until Paulk actually testified to the grand jury. Stated differently, the
only evidence Rehberg alleges was fabricated is Paulk’s false grand
jury testimony, for which Paulk receives absolute immunity.
Id. at 841-42.
Though the prosecutor’s absolute immunity was not appealed to the
Supreme Court, the investigator’s was. The Supreme Court affirmed the Eleventh
Circuit on this point, again applying the familiar “functional approach.” Rehberg,
132 S. Ct. at 1501-03. Concluding that grand jury witnesses “should enjoy the
same immunity as witnesses at trial,” id. at 1506, the Supreme Court reinforced the
public policy implications underpinning the Eleventh Circuit’s holding concerning

37

immunity for engaging in a conspiracy to present false testimony before a grand
jury:
[T]his rule may not be circumvented by claiming that a grand jury
witness conspired to present false testimony or by using evidence of
the witness’ testimony to support any other § 1983 claim concerning
the initiation or maintenance of a prosecution. Were it otherwise, “a
criminal defendant turned civil plaintiff could simply reframe a claim
to attack the preparation instead of the absolutely immune actions
themselves.” In the vast majority of cases involving a claim against a
grand jury witness, the witness and the prosecutor conducting the
investigation engage in preparatory activity, such as a preliminary
discussion in which the witness relates the substance of his intended
testimony. We decline to endorse a rule of absolute immunity that is
so easily frustrated.
Id. at 1506-07 (internal citations omitted).6 See also Grant v. Hollenbach, 870
F.2d 1135, 1138-40 (6th Cir. 1989) (prosecutors absolutely immune from claims of
conspiring to bring false charges, failing to investigate, and falsely obtaining an
indictment).
Here, as with the plaintiffs in Convertino, Bianchi, and Rehberg, Plaintiff
seeks respite from absolute immunity in the fact that Metz participated in an
investigation before his arrest. But the malicious prosecution claims set forth in
his Amended Complaint make clear that he is seeking relief as a result of his

6

To be sure, the Supreme Court made a distinction in Rehberg between a witness’s
testimony before a grand jury and that of a “complaining witness” who, like
Motley, are law enforcement officials who submit affidavits in support of
applications for an arrest warrant. Id. at 1507-09. This is a distinction without a
difference given that the scope of Motley’s potential immunity is not at issue at
this time.
38

prosecution. Accordingly, Plaintiff has not stated any claim to which absolute
prosecutorial immunity does not apply. Plaintiff’s claims against Metz must be
dismissed. See also Grant, 870 F.2d at 1138-39 (“This is not a case in which the
prosecutor allegedly violated plaintiff’s or another’s constitutional rights through
actual investigation.”); Cheolas, 2009 WL 388548, at *8-9 (“Although the
allegations in support of count II make reference to activities -- most notably, the
fabrication of evidence -- that are more investigative in nature, and therefore may
not be shielded by absolute immunity, nothing in the complaint forges . . . a link
between these sorts of activities and the Defendant prosecutors. Rather, as to these
Defendants, Plaintiffs allege only that they brought criminal charges and continued
to prosecute despite the lack of probable cause or sufficient evidence, and that they
plea bargained in bad faith. As explained earlier, the Defendant prosecutors enjoy
absolute immunity from liability for any federal § 1983 claims arising from such
activities.”).

39

IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Metz’s Motion to Dismiss [Dkt.
# 23] is GRANTED.
IT IS SO ORDERED.

Dated:

March 3, 2014

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 3, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, 313-234-5135

40