MacMaster v. Busacca et al

Filing 126

OPINION and ORDER Denying 110 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SEAN MACMASTER,

Case No. 2:21-cv-11052

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.
DAVID BUSACCA, et al.,
Defendants.
/

OPINION AND ORDER DENYING
MOTION FOR SUMMARY JUDGMENT [110]
The State of Michigan arrested and incarcerated Sean MacMaster after his exwife, Johanna MacMaster accused him of abusing their minor daughter, AM. But
after it emerged that a prosecutor involved in the case had committed misconduct,
Michigan dropped all charges. Sean MacMaster then sued Johanna MacMaster, the
disbarred prosecutor Brian Kolodziej, and State Trooper David Busacca for several
constitutional violations. ECF 1; ECF 53.1 Each Defendant moved for summary
judgment. For the reasons explained below, the Court will deny Johanna’s motion for
summary judgment.

Plaintiff’s initial complaint also named Lauren Schipani, Laura Moody, and
Detective Michael Gerald as defendants. ECF 1, PgID 1. But they are no longer part
of the case. See ECF 68 (dismissing Schipani); ECF 84 (dismissing Moody); ECF 119
(granting Gerald’s motion for summary judgment).
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1

BACKGROUND
The Court will incorporate by reference the background sections from its
previous Orders, ECF 118 and ECF 125, and add the following:
In December 2020, the Florida court handling the custody dispute between
Sean and Johanna MacMaster held Johanna in civil contempt of court. ECF 113-9,
PgID 4778. The court found, inter alia, that Johanna “never intended to use the
Ortega interviews to get help for the child, [AM].” Id. at 4765. Instead, reaching out
to the Ortegas was part of Johanna’s plan to circumvent the court’s orders by
pursuing “criminal charges against the Father,” Sean MacMaster. Id. at 4768.
Indeed, when Dr. Ortega asked to speak with the court-appointed reunification
therapist, Johanna refused to sign the release. Id. at 4768. Had the Ortegas spoken
with the therapist, they might have learned that AM previously admitted to lying
about the abuse. See ECF 113-8, PgID 4759 (“No, that’s a lie. Daddy never hurt me.
Daddy never hurt me.”).2
For clarity and simplicity’s sake, the Court will refer to Johanna MacMaster
by her first name.

The Court is aware that minors do not always recognize that sexual contact with
adults is abusive. And so, on its own, the phrase “Daddy never hurt me” might not be
synonymous with “Daddy never abused me.” Here, however, context suggests that
sexual abuse was encompassed within AM’s usage of the word hurt. At first, AM said
that she stopped seeing her dad “because he hurt me.” ECF 113-8, PgID 4759. Then,
after a brief pause, she admitted, “No, that’s a lie. Daddy never hurt me. Daddy never
hurt me.” Id. AM then explained how her mom pressured her into not admitting that
nobody hurt her. See id. at 4760. The entirety of Dr. Stulberg’s testimony therefore
suggests that AM admitted to lying about the abuse, especially when drawing
reasonable inferences “in the light most favorable to the non-moving party.” 60 Ivy
St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
2

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LEGAL STANDARD
The Court must grant a motion for summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A moving party must point to
specific portions of the record that “it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met its burden, the non-moving party may not simply rest on the
pleadings but must present “specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(emphasis omitted) (quoting Fed. R. Civ. P. 56(e)).
A fact is material if proof of that fact would establish or refute an essential
element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174
(6th Cir. 1984). A dispute over material facts is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When it considers a motion for summary
judgment, the Court must view the facts and draw all reasonable inferences “in the
light most favorable to the non-moving party.” 60 Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987).
DISCUSSION
Sean MacMaster sued Johanna MacMaster for civil conspiracy in violation of
§ 1983, federal malicious prosecution in violation of § 1983, and state law malicious
prosecution. ECF 53. Johanna moved for summary judgment on each count. ECF 110.

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I.

Civil Conspiracy
“A civil conspiracy under § 1983 is an agreement between two or more persons

to injure another by unlawful action.” Bazzi v. City of Dearborn, 658 F.3d 598, 602
(6th Cir. 2011) (quotation marks and quotation omitted). To prevail on a civil
conspiracy claim, Plaintiff must show that (1) a single plan existed, (2) the defendants
shared in the general conspiratorial objective to deprive Plaintiff of his constitutional
(or federal statutory) rights, and (3) an overt act was committed in furtherance of the
conspiracy that caused injury to Plaintiff. Id. “A plaintiff, however, need not allege or
produce direct evidence of a conspiracy; circumstantial evidence may provide
adequate proof.” Stillwagon v. City of Delaware, 175 F. Supp. 3d 874, 902 (S.D. Ohio
2016) (quotation marks and quotation omitted).
Here, Plaintiff contended that Johanna entered a conspiracy with law
enforcement to maliciously prosecute her ex-husband without probable cause.
Johanna argued, however, that she could not be liable for civil conspiracy under
§ 1983 because she was not a state actor. ECF 110, PgID 3623. And normally, private
citizens cannot act under color of state law.
But § 1983 can sometimes apply to private individuals. Nugent v. Spectrum
Juv. Just. Servs., 72 F.4th 135, 139 (6th Cir. 2023) (“Section 1983’s text and history
confirm that it covers the acts of private individuals in certain cases.”). For § 1983
liability to attach, the conduct must be “fairly attributable to the state.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982). Plaintiff pointed to conspiracy as the
applicable hook here. ECF 113, PgID 4654–56.

4

“[A] private party may conspire with the state and be liable under § 1983.”
Moore v. City of Paducah, 890 F.2d 831, 834 (6th Cir. 1989). For example, in Adickes
v. S. H. Kress & Co., 398 U.S. 144 (1970), the plaintiff sued a Mississippi department
store under § 1983 over its segregated lunch counter. Id. at 149. Plaintiff alleged that
the department store conspired with local police to unlawfully maintain segregation.
Id. at 149–51. Plaintiff only sued the store—not the police. In reversing the Circuit
Court’s decision to uphold summary judgment for the store, id. at 153, the Supreme
Court held that private persons who conspire with state officials can be liable under
§ 1983. Id. at 152; see also Dennis v. Sparks, 449 U.S. 24, 28, 101 (1980) (holding that
private parties who allegedly conspired with a judge through bribery acted “under
‘color of law’ for purposes of § 1983 actions”); Cooper v. Parrish, 203 F.3d 937, 952 n.2
(6th Cir. 2000) (“If a private party has conspired with state officials to violate
constitutional rights, then that party qualifies as a state actor and may be held liable
pursuant to § 1983.”); Simonds v. Boyer, No. 21-cv-841, 2022 WL 11964613, at *6
(W.D. Pa. Oct. 20, 2022) (“A private citizen can be liable under Section 1983 for
malicious prosecution.”).
Defendant cited Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009) for
the proposition that “reporting crimes or threats is not an act under color of state
law.” ECF 115, PgID 4877–78. In Moldowan, the Sixth Circuit considered several
§ 1983 conspiracy claims. 578 F.3d at 394–95. And the court noted that “[p]roviding
information to the police, responding to questions about a crime, and offering witness
testimony at a criminal trial does not expose a private individual to liability for

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actions taken ‘under color of law.”’ Id. at 399. But the court did so after having found
that plaintiff’s conspiracy claims—against public and private actors—failed for lack
of specificity. Id. at 395 (concluding that plaintiff’s claims lacked “the requisite
material facts and specificity necessary to sustain a conspiracy claim”). The court also
cited a Tenth Circuit case for the proposition that “[t]he mere furnishing of
information to police officers does not constitute joint action under color of state law
which renders a private citizen liable under §§ 1983 or 1985.” 578 F.3d at 399
(emphasis added) (quoting Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)).
The word “mere” suggests that some other combination of conspiratorial acts could,
however, constitute state action.
Building on Moldowan, the Sixth Circuit recently affirmed that deliberately
lying to get someone arrested was not enough to show that a private party’s “conduct
was fairly attributable to the state or that she was participating in a joint action with
state agents.” Weser v. Goodson, 965 F.3d 507, 517 (6th Cir. 2020); see also Akins v.
Kilfoile, No. 08CV-P586-R, 2009 WL 723209, at *2 (W.D. Ky. Mar. 18, 2009) (“[T]he
mere furnishing of information by a private party to a law enforcement official, even
if the information is false, is not sufficient to constitute joint activity with State
officials in prohibited action or to state a claim against a private party under § 1983.”).
Communicating or cooperating with the police is thus not enough to sustain a
conspiracy claim under § 1983. Rather, plaintiffs need to present some additional
proof. For example, in Simonds, the court found that a complaint stated a conspiracy
claim against an administrative assistant and a judge who allegedly employed

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intimidation tactics and initiated a retaliatory criminal prosecution to protect a coDefendant police officer. 2022 WL 11964613, at *1, 6. And in Conte v. County of
Nassau, No. 06-CV-4746, 2008 WL 905879 (E.D.N.Y. Mar. 31, 2008), the court found
that a complaint stated a conspiracy claim against a police officer’s wife because the
officer was under the “control or influence” of the wife, who allegedly submitted and
spread the false accusation at the heart of the conspiracy. Id. at *21, 30.
Here, a jury could conclude that Johanna did much more than merely
communicate or cooperate with the police. Unlike the defendants in Moldowan and
Weser, Johanna’s links with her co-defendants were far more personal and unusual.
To begin, because Kolodziej had a romantic relationship with Johanna
MacMaster’s cousin, a reasonable jury could conclude that Kolodziej was under the
control or influence of Johanna. See Conte, 2008 WL 905879, at *21. The cousin was
an office assistant at the Macomb County Prosecutor’s Office, where Kolodziej worked
as a prosecutor. ECF 112-2, PgID 4457–58. But Plaintiff’s supposed crimes allegedly
occurred in Oakland County, where Kolodziej had no jurisdiction. Still, Kolodziej
started working on the case. And when Kolodziej recruited Center Line Detective
Michael Gerald to help, Gerald agreed because Kolodziej was “madly in love” with
Johanna’s cousin and “trying to show off for [her].” ECF 112-8, Pages 42, 51. Through
the personal relationship between her cousin and Kolodziej, Johanna was thus
arguably able to deploy law enforcement who lacked jurisdiction over the case.
The timing of Kolodziej’s work on the case raises additional concerns. After a
flurry of activity on the MacMaster case in spring 2018, Kolodziej did little if any work

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on it over the summer. See ECF 102-14, PgID 1923. Then, in October 2018, around
the same time Johanna’s cousin broke up with him, Kolodziej started moving the case
forward again, reaching out to Busacca who started emailing about the case. See ECF
118, 125; see also ECF 112-7, Page 27; ECF 111-1, Page 82. Given the suspicious
timeline, a jury could find that Kolodziej’s prodding of the prosecution was motivated
by his romantic entanglement with Johanna’s family member.
In addition, a jury could find that the close relationship between Kolodziej,
Johanna, and AM raises eyebrows. Kolodziej had a squirt gun fight with AM in the
Attorney General’s office, he attended church and prayed the rosary with Johanna’s
grandmother, he gave AM a book signed by the Michigan Attorney General, he played
AM her favorite song on the guitar, he took AM horseback riding on her birthday, and
he took AM to the Detroit Institute of Art with her mother and Special Agent Lauren
Schipani, with whom Kolodziej also had a brief romantic relationship. ECF 118, PgID
4897. Such links between a prosecutor and a victim’s family are highly unusual.
Plaintiff also presented evidence that Kolodziej and Busacca had actual
knowledge of Johanna’s intent to use the abuse allegations to force Plaintiff to give
up his parental rights. Specifically, both Kolodziej and Busacca knew about the
McDonald’s recording, which they discussed at a meeting on January 23, 2019. ECF
103-21, Page 64. In that recording, Johanna suggested that she would drop the
allegations if Plaintiff signed away his parental rights and even presented a
document for him to sign to that effect. See generally ECF 113-1 (transcript of
recording). She also told Plaintiff that terminating his parental rights was his “get-

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out-of-jail-free card.” Id. at 4692. And she admitted that she did not believe that
Plaintiff ever abused their daughter, even though—days before—Johanna was the
one who reported the alleged abuse to the police. Id. at 4673, 4678; ECF 110-2, PgID
3632–33. Nevertheless, Kolodziej and Busacca continued to push the case forward.
As detailed in the Court’s prior order, ECF 125, Busacca also altered official
documents to hide Kolodziej’s involvement in the case and intentionally omitted any
mention of Kolodziej’s involvement in subsequent testimony. A reasonable jury,
reviewing all the evidence, could thus conclude that Busacca’s actions were part of a
cover up, designed to protect his co-conspirator.
Finally, the Court previously found that the search and arrest warrants for
Sean MacMaster, based on the allegations from Johanna, lacked probable cause.3
ECF 118, 125. And the Court determined that a reasonable jury could find that
material evidence was omitted from the warrants with the intention of misleading
the court.
In light of the analysis set forth above, a jury could find that Johanna, along
with Kolodziej and Busacca, shared the single plan of maliciously prosecuting
Plaintiff for child abuse without probable cause. See Bazzi, 658 F.3d at 602. Several

3 To be clear, AM made the initial allegations, and Johanna reported the allegations

to the police, possibly knowing that they were false. Some evidence suggests that
Johanna’s actions tainted and influenced AM’s retelling of what occurred. See ECF
111-22, Page 57; see also ECF 113-6, PgID 4737. And other evidence suggests that
Johanna pressured AM into maintaining the false allegations. See ECF 113-8. Given
those facts, in combination with AM’s “extreme attachment” and codependence on her
mother, ECF 113-7, PgID 4744, the Court describes the allegations as coming “from
Johanna.”
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overt acts occurred, most notably the procurement of the search and arrest warrants.
See id. And because the conspiracy was with law enforcement, Johanna’s status as a
private citizen does not insulate her from liability under § 1983. The Court will
therefore deny summary judgment on the conspiracy claim.
II.

Fourth Amendment Malicious Prosecution
Malicious prosecution under the Fourth Amendment “encompasses wrongful

investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d
709, 715–16 (6th Cir. 2006) (quotation marks and quotation omitted). To succeed on
a § 1983 malicious-prosecution claim, a plaintiff must prove: (1) “that a criminal
prosecution was initiated against the plaintiff and that the defendant made,
influenced, or participated in the decision to prosecute”; (2) “that there was a lack of
probable cause for the criminal prosecution”; (3) “that, as a consequence of a legal
proceeding, the plaintiff suffered a deprivation of liberty . . . apart from the initial
seizure”; and (4) that “the criminal proceeding was resolved in the plaintiff’s favor.”
Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010) (alterations omitted).
To begin, Johanna argued that she “did not make, influence, or participate in
the decision to prosecute” Plaintiff. ECF 110, PgID 3620. Johanna cited two cases in
support of her argument. Id. First, she cited Miller v. Davis, 653 F. App’x 448 (6th
Cir. 2016), which noted that a police officer’s report, though “indisputably
fundamental to the commencement of the criminal proceedings,” did not subject him
to liability for malicious prosecution. Id. at 455–56. Second, she cited Kinkus v.
Village of Yorkville, 289 F. App’x 86 (6th Cir. 2008), which involved a police officer

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who filed a police report, signed a blank criminal complaint, and solicited a written
report from another officer yet was not held liable for malicious prosecution. Id. at
91.
Both cases are inapposite. In Miller, the court expressly noted that there was
no evidence that the officer “provided false information,” that he “knew such
information was false, or that the information was material.” 653 F. App’x at 455–56.
Here, however, a reasonable jury could find based on the McDonald’s recording that
Johanna knew the allegations were false. See ECF 113-1. Moreover, after the family
court in Florida determined that the abuse allegations were not credible, Johanna
violated court orders by meeting with the Ortegas, hid evidence from the Ortegas,
and generally pursued her “plan-B” of having Plaintiff criminally prosecuted. See
ECF 113-9, Page 6.
As for Kinkus, the court held that a “defendant could not be liable for malicious
prosecution where the plaintiff presented no evidence suggesting that defendants
conspired with, influenced, or even participated in, the prosecutor’s decision to bring
charges against him.” 289 F. App’x at 92 (cleaned up). But, as noted above, Plaintiff
presented evidence from which a jury could conclude that a conspiracy existed, and
he presented even more evidence suggesting that Johanna influenced the
prosecution. See generally ECF 125.
Of course, “merely filing an allegedly misleading case report, without more
active participation, qualifies only as ‘passive or neutral’ participation and is thus an
insufficient basis for a malicious-prosecution claim.” Richards v. County of

11

Washtenaw, 818 F. App’x 487, 493 (6th Cir. 2020). But when an individual takes a
more active role in the prosecution, she can face liability for malicious prosecution.
See Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015). Plaintiff must show “some
element of blameworthiness or culpability in the participation—albeit less than
‘malice.”’ Id. at 655. Accordingly, courts require “deliberate or reckless falsehoods
result[ing] in arrest and prosecution without probable cause.” Johnson v. Moseley,
790 F.3d 649, 655 (6th Cir. 2015).
In its previous order, ECF 125, the Court stressed how Busacca admitted to
reviewing the family court documents and the McDonald’s recording. Together, these
pieces of evidence shattered probable cause to believe that Plaintiff possessed
evidence of a crime or committed a crime. Here, Johanna had actual knowledge of all
the exculpatory information from the family court documents and the McDonald’s
recording because she witnessed everything firsthand. A reasonable jury could thus
conclude that Johanna was culpable because she knowingly spread deliberate or
reckless falsehoods that led to Sean MacMaster’s prosecution without probable cause.
See Johnson, 790 F.3d at 655. Johanna’s personal and professional entanglements
with Kolodziej, as well as her actions surrounding the Ortega interviews, would
further bolster such a finding.4 The Court will therefore deny summary judgment on
the Fourth Amendment malicious-prosecution claim.

4 Johanna also argued that she did not act under color of state law and that probable

cause existed for the arrest and subsequent prosecution of Plaintiff. ECF 110, PgID
3619–22. But the Court already explained that entering a conspiracy with law
enforcement is enough for state action under § 1983, see ante, and that the
prosecution of Plaintiff lacked probable cause, see ECF 118, 125.
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III.

State Law Malicious Prosecution
Malicious prosecution under Michigan law largely mirrors federal law. But

Michigan law requires “that the action was undertaken with malice or a purpose in
instituting the criminal claim other than bringing the offender to justice.” Zavatson
v. City of Warren, 714 F. App’x 512, 524 (6th Cir. 2017) (quoting Matthews v. Blue
Cross & Blue Shield of Mich., 456 Mich. 365, 378 (1998)). In addition, under Michigan
law, “[i]f the police or the prosecutor initiate the prosecution on the basis of evidence
obtained through their own independent investigation, the complaining victim is
insulated from liability.” Moldowan, 578 F.3d at 400 (citing Matthews, 456 Mich. at
385 n.27). Because the court already determined that the federal malicious
prosecution survives summary judgment, the Court need only consider the two
elements of malicious prosecution that differ under Michigan law. Neither element
makes a difference.
First, based on the McDonald’s recording, a reasonable jury could conclude that
the prosecution had an improper motive, namely ensuring that Johanna got sole
custody of AM. Even Trooper Busacca admitted that the McDonald’s recording
“doesn’t look good” because “[i]t looks like there’s a motive” behind the abuse
allegations. ECF 112-5, PgID 4501.
Second, a reasonable jury could conclude that the prosecution was not based
on any independent investigation. Johanna argued that Busacca “conducted an
independent review and investigation, relied on the disclosures made to the child’s
mental health treaters, and obtained inculpatory evidence—the semen samples—

13

that corroborated the child’s disclosures,” thereby absolving Johanna of any liability
under state law. ECF 110, PgID 3625; see also ECF 115, PgID 4881.
To be sure, “in Michigan, the prosecutor’s exercise of his independent
discretion in initiating and maintaining a prosecution is a complete defense to an
action for malicious prosecution.” Matthews, 456 Mich. at 384 (citing Christy v. Rice,
152 Mich. 563, 565 (1908)). But a private person cannot escape liability if they
furnished information upon which the prosecutor acted that was known to be false.
Matthews, 456 Mich. at 385. Nor can a private person escape liability when they
successfully apply “improper pressure or inducement” to the prosecutor. Id. at 386;
see also Renda v. Int’l Union, United Auto., Aircraft & Agric. Implement Workers of
Am., 366 Mich. 58, 83 (1962) (“[A] person who supplies information to the prosecuting
authorities concerning persons possibly implicated in a crime is not himself the
prosecutor, unless he knows the information he is supplying to be false, or unless he
exerts improper influence upon the prosecuting authorities.”).
Here, a reasonable jury could conclude that Johanna—having entered into a
conspiracy with Kolodziej and Busacca—furnished information known to be false,
and that the prosecution relied on that information. See Matthews, 456 Mich. at 379
(“A plaintiff’s prima facie [malicious prosecution] case against a private person
requires proof that the private person instituted or maintained the prosecution and
that the prosecutor acted on the basis of information submitted by the private person
that did not constitute probable cause.”).

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Plaintiff presented the McDonald’s recording. That evidence suggested that
Johanna knew the allegations against her ex-husband were false, but she
nevertheless pushed forward with the prosecution.5 And he presented evidence that
Busacca and Kolodziej knew that the allegations were false. See 103-21, Page 64; see
also ECF 118, 125 (concluding that Kolodziej and Busacca each omitted information
from one or more warrants with the intent of deceiving the court).
The record further suggests that the prosecution never conducted an
independent investigation, i.e., they simply relied on AM’s allegations as provided by
Johanna. Sure, after Busacca joined the case in October 2018, the police executed a
search warrant at the Orr home and obtained forensic evidence. The forensic
evidence, however, did not corroborate the abuse allegations. See ECF 125, PgID
4946–47, 4970–71. The police did not locate any child sexual abuse material at the
home. And the possible presence of seminal fluid linked to Plaintiff, in the makeshift
bedroom where he was staying at his parent’s home, feet from his mattress, did not
corroborate the allegations. The forensic evidence was obtained three years after the
last abuse allegations, and the abuse involving ejaculation was not alleged to have
occurred in that room. Because the forensic evidence did not corroborate the abuse
allegations, the subsequent prosecution relied substantially on AM’s unreliable
allegations, which had been teed up by Johanna MacMaster.

5 Plaintiff also presented evidence that Johanna pressured AM. See ECF 113-8. For

example, AM tried to tell her mom that she lied about the abuse, but to no avail: “I
tried telling my mom, I said daddy didn’t hurt me, and she said yes, he did.” Id. at
4760. AM’s mom also threatened, “If you tell people that nobody hurt you, I will have
to go away, because people will think I told you to say it.” Id.
15

The prosecution no doubt relied on allegations arising from the CARE House
interviews and the Ortega interviews. See ECF 110-11. The CARE House interviews
occurred in January 2016, ECF 110-4, and the Ortega interviews occurred in August
2018. ECF 110-7. But Kolodziej had no jurisdiction over the case until at least
September 2018, when he left the Macomb County Prosecutor’s Office and joined the
Office of the Michigan Attorney General. ECF 112-1, PgID 4433. And Kolodziej did
not reach out to Busacca until October 2018. ECF 102-14, PgID 1923. Although
Busacca spoke with Johanna and the Ortegas, id. at 1924, the arrest warrant was
primarily based on the allegations made before fall 2018. See 110-11.6
A jury could thus conclude that, instead of conducting their own independent
investigation, the authorities relied on the false information supplied by Johanna,
which did not establish probable cause. See ECF 118, 125 (discussing lack of probable
cause for the prosecution).
Beyond the false information, a jury could independently conclude that
Johanna improperly pressured or induced the authorities, specifically through the
above-described romantic entanglement between Kolodziej and Johanna’s cousin.
Contra Matthews, 456 Mich. at 384.

6 After meeting with Johanna on April 10, 2018, Kolodziej reached out to Center Line

Police Detective Michael Gerald, who also lacked jurisdiction over the case. ECF 10214, 1923. But “[t]ere is no evidence the two did anything more [than] organize
Johanna’s materials.” Id. Accordingly, even if the Court found that Kolodziej’s
activities before he had jurisdiction over the case could count as an independent
investigation, organizing papers from Johanna can hardly qualify as an independent
investigation. In addition, the August 2018 Ortega interviews were sought out by
Johanna rather than Kolodziej, Gerald, or Busacca, so those cannot count either. See
id. (noting that “[n]othing further occurred with the case until October of 2018”).
16

The Court does have concerns about allowing the state law malicious
prosecution claim to proceed against Johanna MacMaster. After all, the Florida
court—while holding Johanna in civil contempt of court—noted that “there has never
been a day that the Mother, Johanna MacMaster, did not believe that the Father,
Sean MacMaster, molested AM.” ECF 113-9, Pg 4764. And a jury might find that
Johanna acted in good faith, seeking justice for wrongs done to her daughter. But
Plaintiff also presented evidence from which a reasonable jury could conclude the
opposite—that Johanna maliciously pushed allegations that she knew were false to
gain an advantage in a contentious custody dispute. See generally ECF 113-1. Only a
jury can weigh the competing evidence. And so, the Court will deny summary
judgment on the state law malicious prosecution claim.
ORDER
WHEREFORE,

it

is

hereby

ORDERED

that

Defendant

MacMaster’s motion for summary judgment [110] is DENIED.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: January 27, 2025

17

Johanna