Farida v. Summers et al
Filing
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OPINION and ORDER granting Defendants' 16 MOTION for Summary Judgment. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK DAVID FARIDA,
Plaintiff,
vs.
Civil Action No. 18-CV-10249
HON. BERNARD A. FRIEDMAN
OAKLAND COUNTY SHERIFF DEPUTY
MICHAEL SUMMERS and
OAKLAND COUNTY SHERIFF DEPUTY
MATTHEW LEGGAT,
Defendants.
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OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendants’ motion for summary
judgment [docket entry 16]. Plaintiff has filed a response in opposition, and defendants have
filed a reply. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without
a hearing.
Background
This is a malicious prosecution action. Plaintiff alleges that defendants
Summers and Leggat, both of whom are Oakland County sheriff’s deputies, lacked probable
cause to arrest and prosecute him for fourth degree criminal sexual conduct.1 Plaintiff was
1
Plaintiff was charged with violating Mich. Comp. Laws § 750.520e(1)(b), which defines
fourth degree criminal sexual conduct as “sexual contact with another person” when “[f]orce or
coercion is used to accomplish the sexual contact.” “Sexual contact” is defined as including “the
intentional touching of the clothing covering the immediate area of the victim’s or actor’s
intimate parts.” Section 750.520a(n). The term “intimate parts” includes “the primary genital
area.” Section 750.520a(c).
charged with this offense based on information provided by the victim, Kelly McGregor, and
her boyfriend, Jonathan Swetech. On October 26, 2014, McGregor and Swetech were
attending a Halloween party at a venue in Commerce Township, Michigan. As they were
leaving the dance floor, a man in a black pirate costume walking in the opposite direction
bumped into McGregor, slipped his hand under her skirt, grabbed her crotch, and continued
walking. McGregor immediately told Swetech what had happened, and Swetech confronted
the perpetrator. A few minutes later, McGregor and Swetech reported the incident to Leggat,
who was a short distance away in his patrol vehicle. McGregor and Swetech returned to the
venue with Leggat, and Swetech identified plaintiff as the pirate-costumed man he had
confronted. When questioned by Leggat, plaintiff denied that he had touched McGregor.
On November 1, 2014, McGregor and Swetech provided Leggat with written
witness statements. McGregor wrote that when she was assaulted she “instantly stopped
walking and told Jon what happened. Jon was able to stop him quickly and they exchanged
words.” Defs.’ Ex. A, PageID 113. Swetech wrote that
Kelly was walking ahead of me holding my hand. I saw a male
to our right who made an unusual movement. My girlfriend told
me that he had just reached up her skirt with his hand and
grabbed her crotch. . . . I confronted the male, who denied it . .
. I stepped away and kept my eye on him. . . . Deputy Leggat
promptly came inside the facility with us. I located the man
again and we were all escorted backstage for questioning. The
man wore all black, had a black bandana on his head and fake
dreadlocks to his costume.
Id., PageID 112. On November 4, 2014, plaintiff provided Leggat with a written witness
statement, denying that he had “touched anyone at the party inappropriately.” Id., PageID
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117.
Based on this information, Leggat requested an arrest warrant. On November
7, 2014, the prosecutor “furthered” the request with instructions that plaintiff be offered the
opportunity to take a polygraph. Defs.’ Ex. B, PageID 119. On January 22, 2015, plaintiff
was interviewed by defendant Summers. Defs.’ Ex. A, PageID 102. Plaintiff again denied
that he had touched anyone at the party, and he declined to take a polygraph examination.
Id. On January 27, 2015, the prosecutor noted that the previous day Summers informed her
that plaintiff had declined to take a polygraph. Defs.’ Ex. C. She also requested further
investigation for “any and all recordings. The bar claimed there is no video of this incident.”
Id. Some time between January 27 and February 5, 2015, the prosecutor authorized the
warrant request. Defs.’ Ex. E, PageID 129.
On February 5, 2015, McGregor submitted a second written witness statement
to the sheriff’s department in which she indicated that the perpetrator “reached out with what
I believe was his right hand and reached up my skirt and grabbed at my vagina. . . . I instantly
stopped walking and told Jon what happened. Jon was able to stop him quickly and they
exchanged words.” Defs.’ Ex. A, PageID 113.
The same day, Summers appeared before a magistrate for a “swear to.” Defs.’
Ex. D. He testified that “on October 26th, 2014, while attending a Halloween costume party
at the On the Dunes Bar, . . . Patrick Farida grabbed Kelly McGregor’s vagina. . . . F[a]rida
does not know McGregor and they had no relationship. He just reached out and grabbed her.
McGregor’s boyfriend, Dr. Swetech, was also present and confronted Farida right as it
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happened.” Id., PageID 125. Based on this testimony, the magistrate issued a warrant for
plaintiff’s arrest. Id., PageID 126; Defs.’ Ex. E, PageID 130-31.
On February 10, 2015, plaintiff was arrested and arraigned. Defs.’ Ex. A,
PageID 110; Defs.’ Exs. F and G. Bond was set at $2,000, which plaintiff posted. Defs.’ Ex.
G, PageID 140.
Plaintiff’s preliminary examination was held on July 29, 2015. Defs.’ Ex. H.
The court granted his motion for permission to sit in the gallery rather than at counsel table
because his attorney believed there was “an issue of identification.” Id., PageID 146, 149.
McGregor testified that “a man came, kind of up on my right-hand side, and as I was walking
reached up my skirt and grabbed my private area as we were walking.” Id., PageID 153.
Further, “immediately after it happened I turned around and I grabbed Jon and Jon grabbed
him.” Id., PageID 155. She agreed that Jon “grabbed the individual that grabbed [her].” Id.,
PageID 156. McGregor was unable to identify the perpetrator in court. Id., PageID 158.
She testified that after speaking with Leggat, “we came back inside and they immediately
found the guy who grabbed me.” Id., PageID 160.
Swetech testified that he was walking five to ten feet behind McGregor when
he “saw someone come towards her. She kind of startled and she came back and told me
immediately.” Id., PageID 172-73. Swetech did not see the grabbing “because she was in
between us,” but McGregor pointed out the man who had grabbed her and Swetech
confronted him. Id. The perpetrator “was wearing a costume. It was mostly black. I
believe, he had a bandana of some sort. And had some dreadlocks that appears to be, like,
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a wig.” Id., PageID 174. From among those seated in the gallery, Swetech identified
plaintiff as the perpetrator. Id., PageID 175. Swetech told Leggat “what he was wearing and
we immediately went back in and saw him again.” Id., PageID 178. Swetech indicated that
he “confirmed[ed] that that was the individual that [he] had previously described.” Id.
Swetech testified that he did not recall seeing others at the party in similar costumes. Id.,
PageID 189. At the party, Swetech identified plaintiff as the perpetrator to Leggat. Id.,
PageID 195.
Leggat testified that “[t]he first question I asked was whether or not they
[McGregor and Swetech] would be able to identify him and they both stated, yes, they would
be able to.” Id., PageID 199. Leggat accompanied them inside, and Swetech “pointed past
me and said, ‘That’s him.’” Id., PageID 204. Leggat did not notice anyone else in a “full
black costume.” Id. In the courtroom, Leggat identified plaintiff as the person Swetech
pointed out as the perpetrator. Id., PageID 204-06. Leggat testified that plaintiff denied
having touched McGregor. Id., PageID 206-07. Leggat testified that he was “100 percent
positive” that Swetech “was directly behind me and when we – when we approached the –
the suspect, he pointed actually past me and said, ‘That’s him.’” Id., PageID 212. Leggat
also indicated that McGregor and Swetech “described exactly what he was wearing and then
pointed directly to him.” Id., PageID 214.
At the conclusion of the preliminary examination, the court found that there
was probable cause to believe that plaintiff “was properly identified and was the person who
committed the crime.” Id., PageID 224.
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In circuit court, plaintiff moved to quash. Defs.’ Ex. J., PageID 236. The court
denied the motion for the following reasons:
[T]he probable cause hearing is the probable cause
hearing. It’s not to say that a jury ultimately will decide that it
was the defendant who committed the crime. But under these
circumstances where he identified in open court the defendant
as the person that he saw bumping into his girlfriend, and . . . the
other identification happens when he – he says that the person
was wearing, you know, the long dreadlocks and the bandanna
when he – they go out and contact the police who happens to be
patrolling through the parking lot, they come in, he identifies the
defendant to the police officers.
So, you know, the identification can be wrong. There’s
– but that’s what a trial is all about. It’s not if there’s – was
there sufficient evidence to support the probable cause
determination that a crime was committed? Yes, you have heard
testimony, very clear testimony. Was there probable cause to
believe that this defendant committed that crime? Yes, you have
the testimony of the complaining witness and her boyfriend.
*
*
*
I have read the . . . preliminary exam transcript. And I
believe that it contains an identification of the defendant. There
is an in-court identification, and there’s the description of how
they determined who he was at the time that the event occurred.
Id., PageID 238-39, 245. On June 6, 2016, plaintiff was tried and acquitted.
In addition to these facts, plaintiff alleges that “there were many individual at
the Halloween Party . . . who were white males wearing pirate themed Halloween costumes,
including black clothes, dreadlock wigs, and/or bandanas,” and that “Leggat did not make
any effort to identify or question any of the several other individuals at the bar that were
wearing [such costumes].” Compl. ¶¶ 10, 19. Plaintiff also alleges that he “did not confess
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or admit to the crime . . . but Defendant Summers, in order to obtain approval of his warrant
request, falsely advised the Oakland County Prosecutor’s Office that such an admission was
made.”2 Id. ¶ 26. Further, plaintiff alleges that Summers threatened and cajoled him in an
attempt to coerce him into confessing, but that plaintiff maintained his innocence, and that
defendants improperly withheld a video-recording of Summers’ interrogation of plaintiff
until shortly before trial. Id. ¶¶ 27-30, 34-40.
Count I of the complaint asserts a malicious prosecution claim against both
defendants under federal law. Here plaintiff alleges that defendants violated his Fourth and
Fourteenth Amendment rights “with their wrongful arrest and prosecution of [him].” Id. ¶
46. In Count II, plaintiff asserts a malicious prosecution claim under state law, alleging that
defendants “initiated and/or continued the proceedings against the Plaintiff without probable
cause.” Id. ¶ 62. Count III, which asserts a false arrest claim against both defendants under
state law, has been dismissed by stipulation. And in Count IV plaintiff asserts a claim
against defendant Summers for intentional infliction of emotional distress based on “his
efforts to bring false charges against the Plaintiff, his fabrication of evidence, and the
patently improper and abusive manner in which he conducted the interrogation of the
2
In a “Case Report” dated January 30, 2015, Summers wrote that during his January 22
interview plaintiff “still denied that he had touched anyone but he began to nod his head and
tears began to fill up his eyes. I asked Farida to take a polygraph and he refused stating his
attorney advised him not to do that.” Defs.’ Ex. A, PageID 106. It is unclear whether Summers
forwarded this report to the prosecutor, but the prosecutor’s “Initial Case Evaluation” dated
January 27, 2015, noted there were no admissions. Defs.’ Ex. C. During the “swear to” before
the magistrate, Summers said nothing about his interview with plaintiff. Defs.’ Ex. D. Nor was
this interview mentioned by Leggat at plaintiff’s preliminary examination. Defs.’ Ex. H.
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Plaintiff.” Id. ¶ 76.
Defendants’ Motion for Summary Judgment
Defendants seek summary judgment on various grounds. Under Fed. R. Civ.
P. 56(a), summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“[T]he mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine dispute as to any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986) (emphasis in original). Viewing the evidence in the light most favorable
to the opposing party, summary judgment may be granted only if the evidence is so one-sided
that a reasonable fact-finder could not find for the opposing party. See id. at 248-50; Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th Cir. 1989). In other words, “[a]
material issue of fact exists where a reasonable jury, viewing the evidence in the light most
favorable to the non-moving party, could return a verdict for that party.” Vollrath v.
Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir. 1990). “The pivotal question is whether
the party bearing the burden of proof has presented a jury question as to each element of its
case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
Malicious Prosecution (Counts I and II)
Plaintiff’s federal malicious prosecution claim alleges that defendants
wrongfully arrested and prosecuted him, and his state malicious prosecution claim alleges
that defendants “caused and/or continued a prosecution” against him without probable cause
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and with malice. Compl. ¶¶ 46, 60, 62-63. Under both state and federal law, plaintiff must
show that defendants lacked probable cause to arrest him (to the extent his claims are based
on his arrest) or to bring and pursue charges (to the extent his claims are based on his
prosecution). See Sykes v. Anderson, 625 F.3d 294, 305, 308 (6th Cir. 2010); Hitson v. City
of Eastpointe, No. 335762, 2018 WL 2944208, at *6-7 (Mich. Ct. App. June 12, 2018).
Further, under Michigan law “the only situation in which an action for malicious prosecution
would properly lie is where a police officer knowingly swears to false facts in a complaint,
without which there is no probable cause.” King v. Arbic, 159 Mich. App. 452, 466 (1987)
(quoting Belt v. Ritter, 18 Mich. App. 495, 503 (1969)).
Probable cause means “a reasonable ground for belief supported by less than
prima facie proof but more than mere suspicion.” United States v. Blair, 524 F.3d 740, 748
(6th Cir. 2008). Further,
[i]n order to determine whether an arrest was supported by
probable cause, we must determine whether, at the time of the
arrest, the “facts and circumstances within [the arresting
officer’s] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent”
person to conclude that an individual either had committed or
was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964). This inquiry requires a court
to examine the events leading up to the arrest and then to decide
“whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amounted to probable
cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795,
157 L.Ed.2d 769 (2003) (quoting Ornelas, 517 U.S. at 696, 116
S.Ct. 1657). Courts employ a totality of the circumstances test
for probable cause and examine the evidence with respect to
each person seized. Probable cause requires officers to “show
more than mere suspicion ... [but] does not require that they
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possess evidence sufficient to establish a prima facie case at
trial, much less evidence to establish guilt beyond a reasonable
doubt.” United States v. Strickland, 144 F.3d 412, 416 (6th
Cir.1998).
United States v. Torres-Ramos, 536 F.3d 542, 555 (6th Cir. 2008) (alteration in original).
“A law enforcement officer is entitled to rely on an eyewitness identification to establish
adequate probable cause with which to sustain an arrest.” Ahlers v. Schebil, 188 F.3d 365,
370 (6th Cir. 1999).
Plaintiff argues that defendants lacked probable cause to believe that he was
the perpetrator, not that they lacked probable cause to believe that McGregor was the victim
of a sexual assault. Yet the evidence plainly shows that defendants had probable cause to
believe that they had correctly identified plaintiff as the perpetrator. McGregor told them
that a man wearing a pirate costume assaulted her by grabbing her crotch as he walked by
her.
She immediately told Swetech what had happened, and Swetech immediately
confronted the man. Both McGregor and Swetech told Leggat that plaintiff was the
perpetrator, with Sewtech specifically pointing at plaintiff and saying, “That’s him.”
Swetech again identified plaintiff at the preliminary examination.
These witnesses’
statements, and their identification of plaintiff, provided defendants with ample probable
cause.
Moreover, the fact that a magistrate issued an arrest warrant conclusively
establishes that defendants had probable cause to arrest plaintiff. Voyticky v. Village of
Timberlake, 412 F.3d 669, 677 (6th Cir. 2005); People v. Busby, No. 305055, 2012 WL
10
6720592, at *1 (Mich. Ct. App. Dec. 27, 2012). And the fact that a district judge found
probable cause at the conclusion of the preliminary examination and bound him over for trial
conclusively establishes that defendants had probable cause to prosecute him. Buttino v. City
of Hamtramck, 87 F. App’x 499, 503 (6th Cir. 2004); Gaddis v. Redford Twp., No. 242831,
2004 WL 243363, at *3 (Mich. Ct. App. Feb. 10, 2004). The only exception to the
preclusive effect ordinarily given to judicial findings of probable cause arises when
defendant officers “knowingly and deliberately, or with a reckless disregard for the truth,
made false statements or omissions that create[d] a falsehood and such statements or
omissions [we]re material, or necessary, to the finding of probable cause.” Sykes v. Anderson,
625 F.3d 294, 305 (6th Cir. 2010) (citation and internal quotations omitted; alteration in
original). But this exception plainly does not apply in the present case because plaintiff has
not identified any “false statement or omissions” by Summers (at the “swear to”) or Leggat
(at the preliminary examination) which were “material, or necessary, to the finding of
probable cause.” At both proceedings, defendants simply recounted what McGregor and
Swetech had told them. Summers’ allegedly false statement that plaintiff had admitted to the
charge, see supra n.2, was never mentioned by either defendant in either proceeding.
In short, defendants are entitled to summary judgment on the malicious
prosecution claims because plaintiff has failed to establish that probable cause was lacking.
Indeed, defendants have demonstrated conclusively that based on information provided to
them by McGregor and Swetech they had probable cause to arrest and prosecute plaintiff for
committing the crime of fourth degree criminal sexual conduct.
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Intentional Infliction of Emotional Distress (Count IV)
Plaintiff’s emotional distress claim is based on Summers’ “efforts to bring false
charges against the Plaintiff, his fabrication of evidence, and the patently improper and
abusive manner in which he conducted the interrogation of the Plaintiff.” Compl. ¶ 76.
To establish a prima facie claim of intentional infliction of
emotional distress, the plaintiff must present evidence of (1) the
defendant’s extreme and outrageous conduct, (2) the defendant’s
intent or recklessness, (3) causation, and (4) the severe
emotional distress of the plaintiff. Moore, supra at 389, 652
N.W.2d 688. “Liability attaches only when a plaintiff can
demonstrate that the defendant’s conduct is ‘so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.’” Lewis v. LeGrow, 258
Mich.App. 175, 196, 670 N.W.2d 675 (2003), quoting Graham
v. Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713 (1999).
Walsh v. Taylor, 263 Mich. App. 618, 634-35 (2004).
This claim fails because plaintiff has not shown that Summers engaged in any
extreme or outrageous conduct. First, Summers plainly did not bring false charges against
plaintiff. For the reasons explained above, defendants have shown that they had probable
cause to arrest and prosecute plaintiff for criminal sexual conduct. “[A]s a matter of law [a
police officer] cannot be liable for intentional infliction of emotional distress” for arresting
or prosecuting a suspect on probable cause. Walsh, 263 Mich. App. at 635 (alteration added).
Second, plaintiff has not shown that Summers fabricated evidence. Plaintiff
contends that Summers did so by writing that, during the January 22, 2015, interview,
plaintiff “still denied that he had touched anyone but he began to nod his head and tears
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began to fill up his eyes. I asked Farida to take a polygraph and he refused stating his
attorney advised him not to do that.” Defs.’ Ex. A, PageID 106. There is no indication that
Summers suggested to the prosecutor or to anyone else, including the magistrate or the
district judge, that plaintiff had confessed. Plaintiff’s allegation of fabricated evidence is
itself a fabrication.
Third, plaintiff has failed to show that Summers’ questioning of him during the
January 22 interview was “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.” The audio recording of the interview, Defs.’ Ex. K, reveals that
the interview was lengthy and that Summers sometimes used crude language, but the Court
heard nothing that could be characterized as extreme or outrageous. Further, plaintiff
appeared voluntarily for this interview and he was free to leave at any time. Defendant
Summers is clearly entitled to summary judgment on this claim.
Conclusion
For the reasons stated above,
IT IS ORDERED that defendants’ motion for summary judgment is granted.
Dated: October 3, 2018
Detroit, Michigan
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of
record herein by electronic means or first class U.S. mail on October 3, 2018.
s/Johnetta M. Curry-Williams
Case Manager
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