Cureton v. Vance et al

Filing 25

ORDER adopting 20 Report and Recommendation granting 14 Motion to Dismiss or for summary judgment and overruling plaintiff's objections 21 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMIL CURETON,
Plaintiff,

CASE NO. 16-CV-12628
HON. GEORGE CARAM STEEH
MAG. JUDGE MONA K. MAJZOUB

v.
ANTHONY VANCE, CRAIG
F. WININGER, and THOMAS
SONDGEROTH,
Defendants.
________________________/
ORDER ACCEPTING REPORT AND RECOMMENDATION
(Doc. 20) GRANTING DEFENDANTS’ MOTION TO
DISMISS OR FOR SUMMARY JUDGMENT (Doc. 14), AND
OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 21) 

Pro se plaintiff Jamil Cureton alleges that defendant Assistant United
States Attorneys (“AUSAs”) Anthony Vance and Craig Wininger and FBI
agent Thomas Sondgeroth are liable for malicious prosecution.
Defendants filed a motion to dismiss which this court referred to Magistrate
Judge Mona K. Majzoub for a report and recommendation. Because
plaintiff submitted many exhibits outside the pleadings for the court’s
review, the magistrate judge converted the motion into a motion for
summary judgment. The magistrate judge has now issued her report and
recommendation. Plaintiff has filed objections to that report which the court
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has duly considered. Having done so, the court shall overrule the
objections, accept the report and recommendation, and grant defendants’
motion.
I. Background
The Complaint alleges that jurisdiction is based on diversity as
plaintiff is a resident of Durham, North Carolina, and defendants are
citizens of Michigan. Although plaintiff does not identify Bivens, as the
basis for relief, given plaintiff’s pro se status, and the requirement that the
court construe pro se plaintiff’s pleadings liberally, Erickson v. Pardus, 551
U.S. 89, 94 (2007), the court finds that the magistrate judge properly
analyzed plaintiff’s Complaint under both Michigan and federal law.
The Magistrate Judge set forth the pertinent facts of this case in her
report and the court reiterates those salient facts here. On May 3, 2012, a
grand jury returned an indictment that charged plaintiff and eleven others
with participating in a conspiracy to distribute cocaine, crack cocaine, and
marijuana. Plaintiff was charged with one count of Racketeering
Conspiracy under 18 U.S.C. § 1962(d) and one count of Distribution of
Cocaine Base under 21 U.S.C. § 841(a)(1). The grand jury foreperson and
defendants Vance and Wininger signed the indictment. Plaintiff was
detained pending trial after a finding that he posed a danger to the
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community based in part, on his prior felony convictions for drug and
firearm offenses. Plaintiff was acquitted on July 22, 2014.
Plaintiff filed his pro se Complaint against AUSAs Vance and
Wininger alleging that Vance sought prosecution with the knowledge that
plaintiff had not done anything wrong, and that Wininger sought
prosecution due to Agent Sondgeroth’s falsified evidence. In his response
and sur-reply to defendants’ motion, plaintiff’s allegations are refined and
allege that the defendant AUSAs presented false evidence to the grand
jury, and that they themselves fabricated false evidence, and that Agent
Sondgeroth falsified evidence. Specifically, plaintiff alleges that the false
evidence was a statement by Theresa McCloud from September, 2009 that
she purchased crack cocaine on September 9, 2009 from an individual she
later identified in a photograph as the plaintiff. The statement was taken by
Sergeant Wright and the photograph identification of plaintiff was obtained
from McCloud by Task Force Officer Darren L. Lopez.
None of the defendants began working on the Howard Boys
investigation until after McCloud made her statement. Over a year after the
indictment issued, in October, 2013, McCloud recanted her earlier
statement. Plaintiff argues that McCloud’s earlier statement identifying him
as the seller of crack cocaine constitutes falsified evidence.
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Magistrate Judge Majzoub found that defendants AUSAs Vance and
Wininger were entitled to absolute immunity as they were performing their
duties as prosecutors for the conduct alleged. The magistrate judge also
found that Agent Sondgeroth did not join the investigation until 2010, and
McCloud did not recant her identification until 2013; thus, Agent
Sondgeroth could not be liable for McCloud’s allegedly false identification in
2009. The magistrate judge issued her report and recommendation based
upon the parties’ written submissions and found that no evidentiary hearing
was warranted. The court turns now to plaintiff’s objections to the report
and recommendation.
II. Standard of Review
The standard of review to be employed by the court when examining
a report and recommendation is set forth in 28 U.S.C. § 636. This court
“shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). This court “may accept, reject or modify,
in whole or in part, the findings or recommendations made by the
magistrate.” Id.

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III. Analysis
1.

Conversion of Motion

In his first objection, plaintiff argues that the magistrate judge should
not have converted defendants’ motion to dismiss into a motion for
summary judgment. Plaintiff’s objection lacks merit as the conversion was
warranted based on his reliance on matters outside the pleadings. The
magistrate judge notified the parties of the conversion and specifically
authorized plaintiff to submit any other additional matters in his objections
to the report and recommendation. Despite this opportunity, plaintiff did not
do so. In addition, plaintiff filed a sur-reply brief in which he responded to
all of the exhibits relied upon by defendants. Even if the court were not to
convert the motion, defendants would be entitled to dismissal under
Federal Rule of Evidence 12(b)(6) based on deficient pleading.
2.

Absolute Prosecutorial Immunity

Plaintiff argues that defendants Vance and Wininger are not entitled
to absolute immunity because they were allegedly acting in an
“investigatory manner.” Plaintiff has submitted no evidence in support of
this theory. Rather, the evidence is clear that the allegedly false statement
of McCloud in 2009 was made long before any defendant in this case
became involved in the Howard Boys investigation. Also, McCloud did not
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recant her statement until October, 2013, more than a year after plaintiff
was indicted; thus, there is no basis upon which any defendant could have
questioned her statement prior to the indictment. Plaintiff’s objections state
that his claims against AUSAs Wininger and Vance are based upon the fact
that they obtained an “unfounded indictment,” “present[ed] false evidence
to the grand jury,” “chose to prosecute Plaintiff,” and because of their
“presentation of said fabricated and unreliable evidence.” (Doc. 21, PgID
130-32). AUSAs Wininger and Vance are entitled to absolute prosecutorial
immunity for such conduct. Koubriti v. Convertino, 593 F.3d 459, 467 (6th
Cir. 2010).
3.

Evidence of Malicious Prosecution

In his third objection, plaintiff argues that he has submitted sufficient
evidence of malicious prosecution to survive defendants’ motion. In order
to state a claim for malicious prosecution under Bivens, “a plaintiff must
prove the following: (1) a criminal prosecution was initiated against the
plaintiff and the defendant made, influenced, or participated in the decision
to prosecute; (2) there was no probable cause for the criminal prosecution;
(3) as a consequence of the legal proceeding, the plaintiff suffered a
deprivation of liberty apart from the initial seizure; and (4) the criminal
proceeding was resolved in the plaintiff's favor.” Robertson v. Lucas, 753
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F.3d 606, 616 (6th Cir. 2014) (citing Sykes v. Anderson, 625 F.3d 294, 30809 (6th Cir. 2010)).
For the reasons discussed above, AUSAs Vance and Wininger are
entitled to absolute prosecutorial immunity for their presentation of
evidence to the grand jury whether the court considers the issue on a
motion to dismiss or a motion for summary judgment.
The court now considers whether the evidence is sufficient to create
a genuine issue of material fact as to Agent Sondgeroth. First, as to his
testimony before the grand jury, he is entitled to absolute witness immunity.
Rehberg v. Paulk, 566 U.S. 356, 369 (2012). The magistrate judge found
that plaintiff’s claim against Agent Sondgeroth could not survive its motion
to dismiss or for summary judgment because plaintiff cannot show a lack of
probable cause for the prosecution because the grand jury returned an
indictment. Recently, the Sixth Circuit reiterated the rule that once the
grand jury returns an indictment, there is a presumption that probable
cause exists for the prosecution which cannot be overcome by “‘claiming
that a grand jury witness conspired to present false testimony or by using
evidence of the witness’ testimony to support any other [Bivens] claim
concerning the initiation or maintenance of a prosecution.’” Sanders v.
Jones, 845 F.3d 721, 733 (6th Cir. 2017) (quoting Rehberg, 132 S. Ct. at
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1506)). However, the Sixth Circuit noted that a defendant could be liable
for malicious prosecution for falsifying affidavits and fabricating evidence
outside the grand jury room. Id. at 734. No such evidence exists here.
In this case, there is no factual basis for plaintiff’s argument that
Agent Sondgeroth fabricated evidence. Plaintiff’s sole claim is that he was
allegedly aware that McCloud had recanted her earlier identification of
plaintiff prior to the presentation to the grand jury. But the evidence
demonstrates that McCloud did not recant her identification until 2013 after
the grand jury returned the indictment in 2012. Moreover, the fact that a
witness changes her testimony does not mean that a government agent
fabricated her earlier statement. It would merely be an issue for the
factfinder at trial whether to believe her earlier statement made in
September, 2009, when her memory of the September 9, 2009 drug buy
would be sharper, or her recantation four years later.
The evidence is unrefuted that Agent Sondgeroth had no involvement
in taking McCloud’s 2009 statement or in having her identify plaintiff as the
person who sold her cocaine. Accordingly, Agent Sondgeroth is entitled to
qualified immunity because plaintiff has presented no evidence that he
violated plaintiff’s constitutional rights.

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4.

Allegedly False and Fabricated Evidence

Plaintiff’s fourth objection largely reiterates his prior objections. He
argues that defendants lacked probable cause to prosecute him because
they relied on false testimony before the grand jury. For the reasons
discussed previously, AUSAs Vance and Wininger are shielded by absolute
prosecutorial immunity for claims regarding their presentation of evidence
to the grand jury. See Koubriti, 593 F.3d at 467. As to Agent Sondgeroth,
plaintiff has presented no evidence that Agent Sondgeroth was aware that
McCloud had recanted her earlier identification of plaintiff as the seller of
cocaine prior to the grand jury’s return of the indictment. In fact, Agent
Sondgeroth did not begin working on the Howard Boys investigation until
2010. Moreover, McCloud did not recant her identification of plaintiff as the
seller of crack cocaine until 2013, over a year after the indictment was
issued.
Also, the record shows that Carvell Gordon also identified plaintiff as
the seller of crack cocaine in the drug transaction taking place on
September 9, 2009; thus, probable cause existed to indict plaintiff, even if
the grand jury did not consider McCloud’s statement. In his sur-reply,
plaintiff alleges that Gordon’s testimony is also false and was based on his
own self-interest, but has not alleged that any of the defendants fabricated
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Gordon’s testimony or knew that it was allegedly false. In addition,
Defendants suggests that McCloud’s 2013 recantation of her identification
of plaintiff may be suspect when considered in light of the fact that when
plaintiff was ordered detained pending trial in his criminal case, the
magistrate judge noted that the government had proffered evidence that
plaintiff’s social media postings indicated a willingness to intimidate
witnesses. (No. 12-cr-20287, Doc. 53 at PgID 112).
5.

Evidentiary Hearing

Plaintiff argues that an evidentiary hearing is warranted so that he
can present witness testimony from McCloud, his criminal trial attorney
Mark Gatesman, plaintiff’s private investigator, Carvell Gorden, and
unnamed additional potential witnesses. The court does not deem such
testimony necessary to adjudicate the instant dispute, and plaintiff’s
request for an evidentiary hearing is DENIED.
IV. Conclusion
For the reasons set forth above, plaintiff’s objections to the report and
recommendation (Doc. 21) are OVERRULED. The court ACCEPTS the
report and recommendation (Doc. 20) as the findings and conclusions of
this court. Defendants Vance and Wininger are entitled to absolute
prosecutorial immunity and defendant Sondgeroth is entitled to absolute
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and qualified immunity. Defendants’ motion to dismiss or for summary
judgment (Doc. 14) is GRANTED.
IT IS SO ORDERED.
Dated: August 29, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 29, 2017, by electronic and/or ordinary mail and also
on Jamil Cureton, 801 East Woodcroft Parkway,
Apt. 1831, Durham, NC 27713.
s/Barbara Radke
Deputy Clerk

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