Tinney v. Richland County et al

Filing 75

Memorandum of Opinion and Order: Defendants' Motion for Summary Judgment and defendant Joe Masi's Supplemental Motion for Summary Judgment are granted. Judge Patricia A. Gaughan on 2/2/16. (LC,S) re 51 , 69

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Glenn Tinney,
Plaintiff,
Vs.
Richland County, et al.,
Defendants.

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CASE NO. 1:14 CV 703
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon defendants’ Motion for Summary Judgment
(Doc. 51) and defendant Joe Masi’s Supplemental Motion for Summary Judgment (Doc. 69).
For the following reasons, both motions are GRANTED.
Facts
Plaintiff Glenn Tinney filed his Complaint against defendants Richland County, James
M. Mayer, Jr. (Richland County prosecutor, now deceased), Joesph Masi (Richland County
prosecutor’s investigator), and David Mesaros (Richland County assistant prosecutor).
Following rulings by this Court, the following claims remained: violation of substantive due

1

process against Masi and Mesaros (Count One), violation of procedural due process against
Masi (Count Two), federal conspiracy claim against Masi and Mesaros (Count Five), state
law claims of intentional infliction of emotional distress and conspiracy against Mayer, Masi,
and Mesaros (Counts Seven and Eight), and Monell claims of conspiracy and ratification
against Richland County. A Second Amended Complaint was then filed adding a malicious
prosecution claim against Masi (Counts Eleven and Twelve).1
On August 11, 1988, Ted White was found with severe injuries to his head
inside of his Mansfield, Ohio store, Akron Mattress and Waterbed. White died of his injuries
on August 13, 1988 at Mansfield General Hospital. He had suffered severe trauma to his head,
and treating doctors told investigators that he appeared to have been struck with a tire iron or
some type of blunt instrument.
The Mansfield Police Department conducted an initial investigation but there were no
eyewitnesses, no forensic evidence linking any person to the homicide, and no indication that
anything had been stolen. Interviews were conducted and a lead regarding Matt Mason, a
former employee of White, was considered. Eventually, the case “went cold.”
According to Masi’s affidavit, one of his duties as an investigator was to help
investigate unsolved cases. One such case involved the Gurcia Johnson homicide. During this
investigation, Masi received a tip from a witness, Joe Griffith. Griffith was a reliable
informant and the tip led to the conviction of Matt Mason for the homicide. On October 18,
1990, during that investigation, Griffith also related that Glenn Tinney told Griffith’s sister

1

Despite this Court’s previous ruling dismissing some claims and portions of
claims, plaintiff re-pleads all claims in his Second Amended Complaint.
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and her husband (the Crawfords) that Matt Mason “hit some guy over the head that owned a
waterbed store” in the summer of 1988. In February 1991, Masi interviewed Griffith to get
more information regarding Tinney’s alleged statement. The Mansfield Police Department
did not follow up on Griffith’s statement.
In 1992, Mayer, who was running for re-election and had promised to solve cold
homicide cases, requested several unsolved case files from the police. One was the Ted
White case which Mayer instructed Masi to review.
According to Masi’s contemporaneous notes of these events, Masi asked Griffith on
March 23, 1992 where he could locate Tinney, and was told he was in prison or possibly the
Massillon State Hospital. Masi was aware that the latter is a psychiatric hospital. The next
day, Masi interviewed Griffith’s sister and her husband (the Crawfords) who told him that
Tinney worked for White at the waterbed store. Tinney told them that Mason told Tinney in
1988 that he snuck up behind White in the store while White was putting money in the
deposit bag. Mason said that he hit White over the head with the butt of a gun, took the
money, and fled the store. Masi located Tinney at the Lebanon Correctional Institute and
arranged to interview him on March 31, 1992.
Masi testified that prior to the interview, he did not review the case file, he had not
been involved in the 1988 investigation, and he knew nothing about the crime except that Ted
White was killed inside a waterbed store. (Masi depo. 78-79)
According to Masi’s contemporaneous notes of the one hour interview, he met with
Tinney at Lebanon Correctional Institute on March 31, 1992, and the following transpired.
Masi identified himself as an investigator from the Richland County Prosecutor’s Office

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investigating the Ted White homicide case. Tinney responded by stating that he knew
nothing about it and did not have anything to do with it. Masi informed Tinney that he was
not there to interview him as a suspect but as someone with knowledge of the suspect. Tinney
responded that “if we wanted to pin the homicide on him we could he didn’t care one way or
the other.” Masi re-emphasized to Tinney that he was not listed as a suspect in the
investigation and that Masi’s purpose there that day was solely to obtain information that
Masi had not obtained through other sources. Tinney requested to know what Masi had heard
and from what sources. At that point, Masi decided to disclose to Tinney some of the
pertinent information that he had received, including the arrest and conviction of Matt Mason
for the Gurcia Johnson homicide.2 Tinney stated, “You’re on the right track. You’re hot,
hotter than you think.” Tinney further stated that he was sure Masi was on the right track
because “We had split the money up after we left.” When asked to clarify, Tinney replied,
“It’s just what I said, we.” Tinney stated that he knew Masi’s information was correct
because he was with Mason during the offense. Tinney then asked if the murder weapon was
ever found and Masi responded that he did not believe it was. Tinney then grinned and asked
if the coroner or police had any idea of what kind of weapon was used. Masi told him he did
not have access to that information. Masi told Tinney he was interested in the information
Tinney had, but that he did not want him to tell Masi anything else that would incriminate
him. Tinney stated that he could help the prosecutor’s office if they could help him. Masi

2

Plaintiff asserts in his brief that Masi “fed [him] information about the crime”
which included its location (the waterbed store), motive (money), mode of assault
(blows from behind), and Mason’s flight after the crime. (Doc. 57 at 6) Plaintiff
points to Masi’s deposition testimony wherein he testified that he told plaintiff
what the Crawfords had told him. (Masi depo. 82-84)
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told Tinney he was in no position to make deals but he would take his requests to the
prosecutor who would have to be reasonably sure that Tinney had some knowledge of the
crime. Tinney stated that he wanted $523.77 which had been confiscated when he had been
arrested for the offenses for which he was now imprisoned, to be transferred to MANCI, and a
good word to the parole board at his next hearing. Masi then asked Tinney what information
he wanted to take back to the prosecutor. Tinney stated that he and Mason traveled to the
waterbed store with the purpose of robbing and torturing White. They rode together and
parked a short distance away. Tinney had the murder weapon along with a Rosco Barretta
9mm, both tucked in his pants. Upon entering the store, they approached White from behind
and Tinney handed Mason the murder weapon which he used to strike White on the head.
Meanwhile, Tinney rummaged through the store. They stole money and drugs, and Mason
gave Tinney about $1,000. The murder weapon was discarded on West Third Street, the
property having been demolished since the homicide. Mason fled to Indiana shortly after the
homicide. Tinney indicated that the reason for the crime was related to White firing Tinney.
Mason was doing work for White during this time. At the time, both Tinney and Mason were
under the influence of drugs and alcohol. Masi told Tinney he would take the information to
the prosecutor. Tinney wanted to know what would happen if he was charged with robbery
and Masi told him he would get back with him after talking with the prosecutor. (Doc. 57 Ex.
18)
Masi did not advise Tinney of his Miranda rights. (Masi depo.82) Masi avers that
during the interview, he never saw any indication that Tinney was mentally ill or
developmentally delayed, and that he was alert and answered the questions appropriately.

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That night or the next day, Masi spoke with Mayer or Mesaros as to what Tinney had told
him. Mayer directed Masi and Mesaros to go back to Lebanon Correctional Institution to
speak with Tinney again.
Masi’s contemporaneous notes show that on April 1, 1992, he received a collect call
from Tinney who stated, among other things, that he would no longer seek a chance for
freedom through the parole board or a transfer to MANCI. Tinney asked if Masi had spoken
to the prosecutor yet and asked some questions about the coroner’s report on Ted White.
Tinney asked whether, when transferred to the county, he would be able to smoke cigarettes
and have coffee. (Masi aff. Ex.1)
A statement was prepared on April 2, 1992 by Tinney’s Unit Manager relating that
Tinney told the Unit Manager that he killed “Tim White” with a pipe wrench. (Id.) In a
notarized statement, dated April 2, 1992, Tinney stated that he was willing to help the
Richland County Prosecutor’s Office solve the homicide: “I will cooperate with the
prosecutors office of my own free will.” He also stated that he had “not been threatened or
pressured in any kind of way by said prosecutors office or anyone else.” (Id.) Both items
were presented to Masi and Mesaros when they arrived for the interview on April 2, 1992.
Masi avers that before his second meeting with Tinney, he began to review the Ted
White case file. On April 2, 1992, he and Mesaros met with Tinney. According to Masi’s
notes, after talking with Tinney for 45 minutes “about his involvement, personal life,
history[,] and background, Tinney decided to give us a mirandized statement to take to the
Prosecutor for his review to determine what Tinney would be charged with.” (Masi aff. Ex. 1)
Masi testified that during the 45 minute discussion, Tinney told them that he was not going to

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implicate Matt Mason because he was afraid of him. (Masi depo. 140-141)
A transcript (and audio recording) of the statement (but not the 45 minute previous
discussion) is submitted. After receiving his Miranda warning, Tinney related that he killed
Ted White himself, by hitting him on the back of the head three times with a pipe wrench,
because he wanted revenge for White firing him. He also robbed White of money, drugs, and
a gun. Tinney asked for water during the interview indicating that the medication he was on
“dries him out.” He also stated that at the time of the murder, he had been taking “psych
medicine.”
Masi avers that, as he had already testified, although he believed Tinney was involved,
he did not believe that Tinney committed the homicide by himself, but that Matt Mason was
involved and Tinney was afraid of him. Mesaros avers the same.
Masi testified that he and Mesaros discussed on the return trip from the prison that
some of what Tinney had told them did not “jive with the facts” of the case or were “flat-out
inaccurate.” For instance, during his statement, Tinney said that he arrived in the morning
and waited until he saw Ted White’s car pull up to the store. Masi knew from the file that
Ted White was driven to the store that day by someone else and did not arrive in his own car.
Also, Tinney said the attack occurred in the early morning, but Masi knew it had occurred in
the afternoon. Tinney said he struck White in the head from behind, but Masi also knew he
had injuries to the face. There was no evidence of the items Tinney said he stole from White,
and there was never an indication that Tinney worked for White. (Masi depo. 191, 155-156,
172, 176-178, 100-101) There were also discrepancies between Tinney’s two statements.
Mesaros never instructed Masi to do any further investigation to corroborate Tinney’s

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April 2 statement. (Mesaros depo. 119) Masi testified that after completing the April 2
interview, Mesaros told him not to do anything else on the case. (Masi depo. 201, 203)
According to Mesaros, on either April 2 or 3, he and Mayer discussed potential
charges against Tinney. They believed there was probable cause to prosecute him. They
made the decision to present the case to the grand jury. Masi had no involvement in the
prosecutorial decision. (Mesaros aff.) Masi testified at the grand jury hearing. On May 6,
1992, Tinney pled guilty to the indictment with the assistance of counsel.
Prior to Tinney’s plea, the Mansfield Police Department was not notified by the
prosecutor’s office of the results of the investigation or the decision to charge Tinney. Masi
testified that it was “implied” that he not talk to the police about the investigation. (Masi
depo. 213) Mansfield Police Captain John Arcudi testified that when the police learned of
Tinney’s confession, their impression was “this guy is nuts and.. something is wrong here.”
(Arcudi depo. 45) Arcudi interviewed Tinney on June 24, 1992, along with Masi. He
thought Tinney’s responses were “crazy.” (Id. 280) In his contemporaneous report, Arcudi
states that based on Tinney’s lack of knowledge of the facts of the crime and the 65
discrepancies between this interview and that of Tinney’s April 2 statement, Tinney “said
ABSOLUTELY NOTHING that would truly confirm in my mind that he is the one who
committed this crime.” (Doc. 57 Ex. 27)
Tinney was also interviewed by a newspaper reporter on June 17, 1992 who
concluded based on Tinney’s responses that he did not commit the crime. (Debra Baker depo.
39)
Defendants submit the expert report of James John Karpawich, Ph.D, a clinical and

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forensic psychologist who evaluated Tinney and concluded that “there is insufficient
information based on his statements and the records from that period of time that Mr. Tinney
was suffering from symptoms of a severe and persistent mental illness when he confessed to
the murder of Ted White in the spring of 1992.” (Doc. 51 Ex. 8)
Plaintiff submits the expert report of James Trainum, a retired police homicide
detective and investigator who concludes that the prosecutor’s investigator failed to perform
even the most basic research into Tinney’s background and did not familiarize himself with
the investigative file before the March 31 interview. Following the first interview, Masi
ignored numerous red flags that indicated problems with Tinney’s mental health and the
reliability of the confession. He failed to corroborate or evaluate the confession. Neither the
prosecutor nor the investigator performed basic research into Tinney’s background prior to
the April 2 interview. There was no follow up on the red flags which presented themselves
on this date regarding mental health issues. There was only a minimal review of the
investigative file. Reg flags regarding the reliability of this confession, which was factually
inaccurate, were ignored. Although the prosecutor and investigator admitted that they
thought the April 2 confession was false, they proceeded to prosecute Tinney for murder,
contrary to proper policing and investigation. No attempt to further investigate was made
after the April 2 interview. A reasonable investigator would have explored Tinney’s
background and the inconsistencies in both confessions, and recognized that neither was
reliable or a basis to pursue criminal charges. (Doc. 57 Ex. 8)
Additionally, plaintiff submits the forensic psychological assessment of Scott A.
Bresler, Ph.D who concludes that Tinney suffered from mental illness in late March to early

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April 1992 that would have rendered him more vulnerable to persuasion and placed him at
risk for giving false information to investigators about the killing. As a result of his mental
illness at the time, investigators needed to be exceedingly careful about information they
provided him, and extraordinarily conscientious in their efforts to corroborate his confession.
(Doc. 57 Ex. 16)
Finally, plaintiff submits the expert report of John D.Sammon, a retired Assistant U.S.
Attorney who concludes, after enumerating nine significant instances in which “the
prosecution team acted wrongfully, inexcusably and even, at times, disgracefully in the
investigation and prosecution of Glenn Tinney,” the prosecution team drastically deviated
from the proper means and procedures of criminal investigation and prosecution. (Doc. 57
Ex. 23)
In 2013, the state court permitted plaintiff to withdraw his guilty plea. In June 2015,
the indictment against plaintiff was dismissed.
This matter is now before the Court upon defendants’ Motion for Summary Judgment
and Masi’s Supplemental Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600,
8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine
issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
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motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates
the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its
resolution will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.”
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may
not simply rely on its pleading, but must “produce evidence that results in a conflict of
material fact to be solved by a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th
Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the
facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image
Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla
of evidence in support of the plaintiff's position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is
“merely colorable” and not “significantly probative,” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
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Discussion
(A) Defendants’ Motion for Summary Judgment
(1) substantive due process
Count One alleges that defendants conducted an unconstitutionally coercive
interrogation of plaintiff which overbore his will and caused him to make involuntary
statements implicating himself in the murder of Ted White in violation of plaintiff’s
Fourteenth Amendment rights.
This Court previously recognized3 that the Supreme Court has noted that “certain
interrogation techniques, either in isolation or as applied to unique characteristics of a
particular suspect, are so offensive to a civilized system of justice that they must be
condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton,
474 U.S. 104, 109 (1985). Under some circumstances, coercive interrogation alone may
violate a suspect’s right to substantive due process, even when no self-incriminating statement
is used against the person interrogated. See Chavez v. Martinez, 538 U.S. 760, 780 (2003).
However, a due process violation will be recognized only where the specific conduct alleged
rises to the level of coercive interrogation that “shocks the conscience.” County of
Sacramento v. Lewis, 523 U.S. 833, 846-47, n. 8 (1998) (substantive due process rights are
violated only when “the behavior of the governmental officer is so egregious, so outrageous,
that it may fairly be said to shock the conscience”).
While “negligently inflicted harm is categorically beneath the threshold of

3

See Memorandum of Opinion and Order granting in part and denying in part
defendants’ Motion for Judgment on the Pleadings (Doc. 35)
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constitutional due process . . . at the other end of the culpability spectrum . . . conduct
intended to injure in some way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level.” Lewis, 523 U.S. at 849. The
plaintiff need not show that “it was . . . the ultimate purpose of the government actors to harm
the plaintiff,” but that the defendants acted “with full appreciation of . . . the brutality of their
acts.” Id. at 850 n. 9; Rochin v. California, 342 U.S. 165 (1952). “Deliberate indifference that
shocks in one environment may not be so patently egregious in another.” Lewis, 523 U.S. at
850. Determining the presence of a due process violation requires an appraisal of “the totality
of facts in a given case. That which may, in one setting, constitute a denial of fundamental
fairness, shocking to the universal sense of justice, may, in other circumstances, and in the
light of other considerations, fall short of such denial.” Id. (citing Betts v. Brady, 316 U.S.
455, 462 (1942)).
The Fourteenth Amendment shock-the-conscience claim involves a “higher standard”
than the “traditional Fifth Amendment claim” where the government tries to admit a forced
false confession at a criminal trial. Smith v. Patterson, 430 Fed.Appx. 438 (6th Cir. 2011) The
inquiry in the former is whether the interrogation technique was so offensive to a civilized
system of justice that it violates the right to substantive due process. Id. That an officer
obtained a false confession does not by itself shock the conscience. Id.
Defendants argue that this claim fails because defendants’ interview techniques did
not shock the conscience. Defendants further argue that, to the extent alleged, there is no
cognizable substantive due process claim based upon reckless investigation in this Circuit.
Defendants note that the Complaint (and Second Amended Complaint) seem to assert a

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substantive due process claim based upon a reckless investigation. In particular, in the factual
portion of the Complaint plaintiff alleges that the inconsistencies between plaintiff’s first and
second confessions and the information defendants knew about the crime were remarkable.
Defendants made no effort to investigate the inconsistencies. Defendants pursued the case
against plaintiff all the way through prosecution even though defendants had no reasonable
basis and no probable cause to believe plaintiff was guilty of the crime. (¶¶ 38, 46, 48)
Initially, this Court agrees with defendants that plaintiff’s substantive due process
claim is limited to the interview techniques and not the overall alleged reckless investigation.
The Court will address the latter and then proceed to whether the interview techniques
amounted to a substantive due process violation.
Defendants point out that the Supreme Court has recognized that “where a particular
Amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing these claims.” Albright v. Oliver,
510 U.S. 266 (1994). The Sixth Circuit “recognizes a separate constitutionally cognizable
claim of malicious prosecution under the Fourth Amendment, which encompasses wrongful
investigation, prosecution, conviction, and incarceration.” Sykes v. Anderson, 625 F.3d 294,
308 (6th Cir. 2010) (citations omitted). The Sixth Circuit has not recognized a substantive
due process claim for “reckless investigation,” and two district courts within this Circuit have
declined to do so. In Cross v. Metropolitan Government of Nashville, 2013 WL 1899169
(M.D.Tennessee 2013), the court rejected plaintiff’s claim of violation of substantive due
process based on defendants’ inadequate investigation and decision to seek an indictment

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without probable cause because the Fourth Amendment already provided the protection. In
Buchanan v. Metz, 6 F.Supp.3d 730 (E.D.Mich. 2014), the court stated that plaintiff had not
presented any binding authority permitting him to recast his Fourth Amendment malicious
prosecution and false arrest claims into a substantive due process claim.
Plaintiff contends that defendants’ argument is “in direct conflict with this Court’s
directive”(Doc. 57 at 16) issued in its ruling on the Motion for Judgment on the Pleadings
wherein this Court stated:
At this stage, in the context of a pre-discovery Rule 12(c) motion, a finding that
plaintiff is unable to sustain a substantive due process violation would be premature.
Plaintiff’s claims, in essence, are that defendants exploited his mental condition to get
him to make a false confession, failed to investigate when his statements were
glaringly inconsistent with the evidence from the crime scene, and pursued a
prosecution solely based on a confession they had lead plaintiff to make and knew to
be false. These allegations sufficiently raise substantive due process claims. See
Winslow [v. Smith], 696 F.3d 717, 736 (8th Cir. 2012) (denying defendants’ motion
for summary judgment where there was evidence that former criminal defendants had
been coerced to provide false testimony and deputies had systematically coached
witnesses into providing false testimony).
(Doc. 35 at 11) Plaintiff asserts that the evidence “supports such a claim.” (Doc. 57 at 16)
Specifically, plaintiff asserts that Masi and Mesaros knew of Tinney’s mental illness and
exploited it to get him to make a false confession, failed to investigate when Tinney’s
statements were inconsistent with the evidence from the crime scene, and pursued a
prosecution solely based on the false and wrongfully obtained statements.4
This Court did not issue a “directive” that plaintiff would have to prove these three
points in order to prevail on the claim. While the claim survived a motion for judgment on
the pleadings, it cannot survive summary judgment where plaintiff’s argument attempts to

4

Plaintiff states that he has not alleged a reckless investigation claim.
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combine substantive due process theories (conscience shocking interrogation techniques) with
malicious prosecution theories (defendants failed to investigate plaintiff’s statements and
prosecuted him based on a false confession) to establish one all-encompassing substantive
due process claim. Based on the law set forth above, while such a claim may be recognized in
the Eighth Circuit, it is not permitted in this Circuit. The Court agrees with defendants that
plaintiff is improperly attempting to recast his malicious prosecution claim as a substantive
due process claim when he argues that criminal proceedings were instituted against him based
on false evidence or testimony. Accordingly, there was no clearly established basis in 1992
(or at present) for the type of substantive due process claim that plaintiff now advances.5
Thus, the Court examines whether defendants, who have asserted qualified immunity,
are entitled to judgment on the substantive due process violation based on the alleged coerced
confession.6

5

Defendants are entitled to qualified immunity unless the facts, taken in the light
most favorable to the party asserting the injury, show the officer’s conduct
violated a federal right and that the right was clearly established at the time of the
alleged violation. Tolan v. Cotton, 134 S.Ct. 1861 (2014).

6

In fact, in opposing the Motion for Judgment on the Pleadings as to the
substantive due process claim, plaintiff argued that the claim survived because it
had adequately plead conscience-shocking behavior in the interrogation of a man
with severe mental illness. Plaintiff stated, “Rather than take care in interviewing
him, Defendants exploited his vulnerability and coerced him into confessing by
offering bribes, and using undue pressure and suggestion, including feeding him
details of the crime. As in [cases cited], that alone is sufficient to shock the
conscience. But even if any doubt remained as to whether Defendants’ conduct
surpassed that threshold, the appropriate course is to allow discovery to proceed
so that Mr. Tinney may present the ‘totality of the facts’ to this Court. Mr.
Tinney may bear a heavy burden in proving his contention that Defendants’
conduct is conscience-shocking, but nothing in the law precludes the attempt.”
(Doc. 31 at 9)
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Defendants argue that, while alleged in the Second Amended Complaint, the evidence
shows that plaintiff’s confession was not coerced given that: 1) Tinney’s April 2 affidavit
stated that he was willing to help the prosecutor’s office of his “own free will” and had “not
been threatened or pressured in any kind or way.” 2) At his plea hearing, plaintiff denied any
promises, pressure, or threats. 3) After his guilty plea, he wrote his mother-in-law a holiday
card that stated, “P.S. tell Renee that I didn’t kill that guy I just took the blame for it so I
could spend the rest of my life in prison. I didn’t even know him I just made the story up so
the prosecutor would believe me and it worked.” 4) Tinney testified at deposition that “to the
best of [his] knowledge,” he told the truth when the judge asked him at his plea hearing
whether anybody had threatened or promised him anything and he responded, “No.” 5)
Tinney said in a 2004 statement given to the Mansfield Police Department that there were no
promises made in order to get his confession, and he confessed to the murder because his wife
was talking about leaving him and he was not taking his medication so he would “just stay the
rest of [his] life in prison.” (pltf. depo. Ex. Doc. 46) 6) Plaintiff’s expert psychologist
testified that plaintiff’s confessions were voluntary false confessions. (Bressler depo. 44)
Nor, defendants assert, did the interview techniques shock the conscience. Defendants
note that plaintiff has alleged two bases of coercion- exploitation of his mental illness7 and
bribery.

7

Masi and Mesaros aver that they saw no indication at either interview that Tinney
was mentally ill (Masi aff. ¶¶ 32,43; Mesaros aff. 18). Defendants also submit the
expert opinion of James Karpawich who states that there is “insufficient
information based on the statements and the records from that period that Mr.
Tinney was suffering from symptoms of a severe and persistent mental illness
when he confessed ...” (Doc. 51 Ex. 8)
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Plaintiff asserts that defendants’ conduct did shock the conscience because Masi and
Mesaros knew of plaintiff’s mental illness and exploited it to get him to make a confession.
Plaintiff points to Masi’s notes which show that Griffith told him that Tinney was either in
prison or the Massillon State Hospital. (Masi aff. Ex.) Masi knew the latter to be a
psychiatric hospital. (Masi depo. 147-148) Plaintiff’s expert opines that Tinney suffered from
mental illness during the time of the two interviews which was well-documented in the prison
records. (Doc. 57 Ex. 16) Plaintiff also points to the absurdity of the facts of plaintiff’s
confession, his reference to Satan, his demeanor, and other signs of mental illness at the time
of his interviews. Additionally, plaintiff told his interrogators during the April 2 interview
that he needed a glass of water because his medication dries him out and that on the day of the
murder he was using a psychiatric medication.
Even if the Court assumes defendants knew plaintiff was mentally ill at the time of the
interviews, knowledge of plaintiff’s mental illness, alone, does not eviscerate the
voluntariness of a confession. Colorado v. Connelly, 479 U.S. 157 (1986) Nor does it amount
to conscious-shocking behavior. The knowledge is not sufficient to impute liability. Plaintiff
asserts that defendants’ conduct shocks the conscience because they exploited plaintiff’s
condition to get the confession. For the following reasons, the Court disagrees that there is
evidence of such.
Plaintiff asserts that Masi “fed to him an account of the crime, including the location
(at the waterbed store), nature of the attack (blows to the head), that money had been taken, as
well as the false fact that Tinney was employed by White. (Doc. 57 at 19) Relying on Bies v.
Sheldon, 775 F.3d 386 (6th Cir. 2014), plaintiff contends that such “fact-feeding,” especially

18

where a suspect has diminished capacity, violates the Constitution and renders a confession
involuntary. Bies, however, was a habeas case, not a substantive due process case, and is
factually distinguishable. Petitioner’s claim was that the trial court improperly allowed his
custodial statements to be admitted at trial. The court recognized that the government’s case
against the petitioner “rested almost entirely upon an unrecorded statement that Bies allegedly
made to the police following a prolonged and highly suggestive custodial interrogation.”
Petitioner had been medically diagnosed and judicially determined to be a person with
intellectual disability, with an IQ in the 0.4th percentile. The court noted, “The Supreme
Court has warned that defendants with intellectual disability are particularly prone to give
false confessions.”
As discussed earlier, the burden of establishing a Fourteenth Amendment substantive
due process violation is higher than establishing a Fifth Amendment claim. Additionally, the
evidence does not show that defendants “fed” plaintiff details of the crime. Masi testified at
deposition that prior to the interview, he did not review the case file, he had not been involved
in the 1988 investigation, and he knew nothing about the crime except that Ted White was
killed inside a waterbed store. In fact, plaintiff acknowledges in his brief that “[d]espite the
fact that this was a cold case, and that Tinney, who was in Lebanon on a burglary charge, was
not going anywhere, Masi did not take the time to review the White case file before he went.”
(Doc. 57 at 6) Plaintiff points to Masi’s notes of the first interview wherein he records that
Tinney requested to know what Masi had heard and from what sources. Masi states, “At that
point, I decided to disclose some of the pertinent information that I had received to Mr.
Tinney including the arrest and conviction of Matt Mason for the Gursha Johnson homicide.”

19

Plaintiff points to Masi’s deposition testimony wherein he was asked what information he had
disclosed and Masi responded, “I told him what I heard from the Crawfords.” (Masi depo.
83) As set forth above, the Crawfords had told Masi that Tinney worked for White at the
waterbed store, and that Tinney told them that Mason told Tinney that he snuck up behind
White in the store while White was putting money in the deposit bag and hit him over the
head with the butt of a gun, took the money, and fled the store. Thus, the facts that plaintiff
claims were fed to him are the facts that plaintiff himself had relayed to the Crawfords.
Plaintiff also asserts that defendants’ conduct shocks the conscience because
defendants bribed him into confessing by offering money, help with a transfer, and a good
word with the parole board. Plaintiff points to Masi’s notes from the March 31 interview.
Masi relates,
I told Tinney that I was interested in the information that he had, however, I didn’t
want him to tell me anything else that would incriminate him. Tinney stated that he
could help the prosecutor’s office if we could help him as well.
I told Tinney that I was in no position to make deals, however, I would take his
requests back to the prosecutor. I further stated that the prosecutor would have to be
reasonably sure that he had some knowledge of the crime. Tinney stated that he had
enough knowledge of the crime to wrap it up. Tinney stated that he only wanted the
$523.77 that was confiscated from him when he was arrested for the offenses he’s
now serving time for, transferred to MANCI and a good word to the parole board the
next time he has a hearing.
I then asked Tinney what information he wanted me to take back to the prosecutor.
(Masi aff. Ex. 1) Tinney then related the details set forth above.
The Court agrees with defendants that Masi’s statement that he would take Tinney’s
requests back to the prosecutor does not amount to bribery. Under the less demanding
criminal rules, the Sixth Circuit rejected a defendant’s argument that his confession should

20

have been suppressed because it was obtained by police coercion given the officers' promise
to inform the prosecutor of defendant’s cooperation. United States v. Stokes, 631 F.3d 802,
808 (6th Cir. 2011) (Defendant’s “claim that the promise to make his cooperation known to
the prosecutor amounted to coercion is unavailing.”)
As for the April 2 interview, plaintiff points to Mesaros’s statement that he would look
into getting plaintiff’s money back. Plaintiff refers to Mesaros’s deposition testimony wherein
he stated that plaintiff would have had a “tough time” getting the money back on his own.
Mesaros also testified at deposition that he was told that plaintiff wanted to be able to smoke
cigarettes and have coffee. Masi averred that during plaintiff’s phone call to him following
the first interview, plaintiff asked if he would be able to smoke cigarettes and drink coffee.
Defendants arranged for plaintiff to be escorted to a special area of the Richland County Jail
where he could smoke. During his June 17, 1992 interview with a newspaper reporter,
plaintiff stated that Mesaros had made it clear to him that he would pull him out of his cell to
smoke cigarettes, which he did. (Doc. 57 Ex. 30) Plaintiff asserts that while the inducements
may appear trivial, to plaintiff they were significant.
The Court agrees with defendants that this behavior was not conscience- shocking.
In Smith, supra, the court rejected a juvenile’s substantive due process claim based on a
detective’s interrogation techniques which resulted in a false confession to a murder.
Recognizing that the Fourteenth Amendment standard is higher than the Fifth Amendment
one, the court found that the detective used “classic interrogation techniques on a 17-year -old
boy, one minute claiming to be his friend, the next minute suggesting he was a hardened
criminal, but he had reason to be persistent” given an eyewitness identification of plaintiff as

21

a participant in the murder and plaintiff’s statements consistent with his involvement.
Referring to Rochin v. California, 342 U.S. 165 (1952), the court recognized the high burden
in establishing a substantive due process claim and concluded that the detective’s “actions are
not shocking to the degree necessary to violate the right to substantive due process.” In
Rochin, for example, the Supreme Court found such a substantive due process violation where
deputy sheriffs, having some information that the accused was selling narcotics, entered the
open door of his house and forced open the bedroom door. They then forcibly attempted to
extract capsules which he had swallowed. At the hospital, the sheriffs directed a physician to
force an emetic solution through a tube into the accused's stomach against his will to produce
vomiting.
Under the demanding substantive due process standard, plaintiff’s claims that Masi
fed him details of the crime and Masi and Mesaros bribed him during the interrogation simply
do not amount to conscience-shocking behavior as was found in Rochin.
For these reasons, plaintiff’s substantive due process claim fails.
(2) procedural due process
This Court previously found that plaintiff’s allegation that defendants, “despite
knowing the confessions were false,” presented these confessions to a court as the basis to
convict him of murder, stated a procedural due process claim as to Masi. Defendants assert
that Masi is entitled to summary judgment because plaintiff received all the process due him
when he entered his plea before the trial court, and Masi never presented plaintiff’s
confessions to the court.
“Procedural due process generally requires that the state provide a person with notice

22

and an opportunity to be heard before depriving that person of a property or liberty interest.”
See, e.g., Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.2001) “A guilty plea is
constitutionally valid if it is entered voluntarily and intelligently, as determined by the totality
of the circumstances.” Brady v. United States, 397 U.S. 742 (1970); Boykin v. Alabama, 395
U.S. 238 (1969).
Defendants assert that plaintiff received all the process he was due in his criminal
case. Defendants submit the transcript of the plea hearing which shows that there was an
extensive colloquy by the judge and that plaintiff was represented by counsel who indicated
that he had spoken with plaintiff three times regarding his plea. (Doc. 26 Ex. 1) Defendant
also points out that no court has found the process related to the plea to be improper, although
the plea had been challenged. Nor did Masi present plaintiff’s confessions to the trial court.
Plaintiff contends that Masi knowingly presented false statements to the court when he
testified before the grand jury. Plaintiff asserts that the evidence shows that Masi knew
plaintiff’s statements were false given that they were riddled with inaccuracies about the
known facts of the crime. Yet, Masi testified before the grand jury. While there is no
transcript of the grand jury proceedings, plaintiff asserts that it can be assumed that Masi
testified before the grand jury about one or both of plaintiff’s statements given that both Masi
and Mesaros have stated that plaintiff’s statements formed the basis for his prosecution and
probable cause to indict.
Defendants maintain that plaintiff has not established a procedural due process claim.
This Court agrees.
Defendants assert that the procedural due process clause protects an accused from

23

being subjected to constitutionally deficient evidence at trial. Because plaintiff pled guilty
and did not go to trial, he was not denied a fair trial and, consequently, procedural due
process.
As the Sixth Circuit recognized in Stumpf v. Robinson, 722 F.3d 739 (6th Cir. 2013)
(quoting Lisenba v. California, 314 U.S. 219 (1941)), “As applied to a criminal trial, denial of
due process is the failure to observe that fundamental fairness essential to the very concept of
justice. In order to declare a denial of it we must find that the absence of that fairness fatally
infected the trial; the acts complained of must be of such quality as necessarily prevents a fair
trial.” See Medina v. California, 505 U.S. 437, 443 (1992) (State action that deprives a
defendant of a fundamentally fair trial violates the Due Process Clause's procedural
component.) Thus, Stumpf noted the instances where such violations have been found to
occur: where the state knowingly misrepresents evidence at trial, Miller v. Pate, 386 U.S. 1
(1967), presents false or misleading testimony at trial, Mooney v. Holohan, 294 U.S. 103
(1935), fails to correct false testimony at trial, Napue v. Illinois, 360 U.S. 264 (1959), or
withholds materially exculpatory evidence so as to deprive defendant of a fair trial, Brady v.
Maryland, 373 U.S. 83 (1963).
Because plaintiff was not denied a fair trial given that he entered a guilty plea, the
procedural due process clause has not been implicated. Even assuming it was, Masi avers that
he was told that plaintiff had reached a plea agreement (Masi aff. ¶ 50) and that although he
was present for the plea, he had no role in the plea hearing itself and never used or discussed
the statements during the hearing. (Id. ¶ 52) Plaintiff does not contradict this testimony or
offer evidence that plaintiff’s statements were “used” in a criminal proceeding, i.e., the plea

24

hearing. In particular, plaintiff does not dispute that the statements were not read into
evidence or mentioned by the prosecutor at the plea hearing. Plaintiff only points out that the
trial judge referred to plaintiff “giving a statement” and stated that “based upon that statement
and what the state would be able to prove because of that statement is the reason that you’re
making your plea in this matter...” (Doc. 26-1) The judge did not opine on whether there was
a factual basis for the plea. (Id.) On this basis, plaintiff does not show that the Court heard
evidence regarding his confessions and that his statements were “used” at the plea hearing.
Summary judgment is warranted on the procedural due process claim.
(3) Conspiracy
Having found no underlying constitutional claim, the conspiracy claim, alleging an
agreement to violate plaintiff’s constitutional rights, fails.
(4) Monell
Likewise, plaintiff’s municipal liability claim fails. Robertson v. Lukas, 753 F.3d 606
(6th Cir. 2014) (“There can be no liability under Monell without an underlying constitutional
violation.”).
(5) State law claims
Having found no constitutional violations, the state law claims of intentional infliction
of emotional distress and conspiracy fail as well.
(B) Defendant Masi’s Supplemental Motion for Summary Judgment
Plaintiff alleges § 1983 Fourth Amendment and state law malicious prosecution
claims against Masi. As plaintiff acknowledges, the federal and state claims require
essentially the same showing.

25

As stated earlier, “The Sixth Circuit recognizes a separate constitutionally cognizable
claim of malicious prosecution under the Fourth Amendment, which encompasses wrongful
investigation, prosecution, conviction, and incarceration.” Sykes v. Anderson, 625 F.3d 294,
308-09 (6th Cir. 2010). [T]he tort of malicious prosecution... remedies detention accompanied
not by absence of legal process, but by wrongful institution of legal process.” Id. To succeed
on the claim, plaintiff must prove the following: 1) a criminal prosecution was initiated
against him, 2) defendant made, influenced, or participated in the decision to prosecute, 3) a
lack of probable cause for the criminal prosecution, 4) as a consequence of the legal
proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure, 5) the
criminal proceeding was resolved in the plaintiff's favor. Id. (citations omitted)
Defendant argues that the prosecution was supported by probable cause; he did not
make, participate, or influence the decision to prosecute; and he is absolutely immune for any
grand jury testimony.
As defendant points out, an indictment by a grand jury conclusively determines the
existence of probable cause. “As a general rule, the finding of an indictment, fair upon its
face, by a properly constituted grand jury, conclusively determines the existence of probable
cause. However, an exception applies where the indictment was obtained wrongfully by
defendant police officers who knowingly presented false testimony to the grand jury. This
exception also covers officers who testify with a reckless disregard for the truth.” Robertson
v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014) (citations omitted).
Defendant asserts that there is no evidence that he lied to the grand jury (or testified
with reckless disregard to the truth) because there is no evidence of what occurred there. In

26

particular, there is no transcript of the grand jury proceedings and when questioned at his
second deposition, defendant was unable to recall his grand jury testimony. Because plaintiff
has produced no affirmative evidence that the grand jury received perjured testimony or that
the proceedings were somehow irregular, he cannot meet his burden to overcome the evidence
of probable cause afforded by the indictment.8
Plaintiff asserts that due to Masi’s reckless disregard for the truth before the grand
jury, there is an issue of fact as to probable cause. Masi testified at his supplemental
deposition that he does not remember anything about his grand jury testimony. He believes he
was the only witness to testify before the grand jury, but he cannot recall. Although he does
not recall, typically the investigating officer’s testimony, and not documentary evidence,
would be the only evidence presented. (Doc. 71 Ex. 1) Plaintiff contends that affirmative
evidence supports an inference that his testimony was so misleading that no jury would have
indicted plaintiff. For the following reasons, the Court disagrees that plaintiff is entitled to
such an inference.
First, plaintiff asserts that because Masi has testified that he did not know plaintiff was
mentally ill, it must be assumed that he did not inform the grand jury that plaintiff was
mentally ill when he made his statements. Due to the fact that mental illness is critical to
assessing whether there was probable cause to believe a suspect committed an offense,

8

Alternatively, defendant argues that a reasonable officer could have reasonably
believed that plaintiff’s prosecution was supported by probable cause given that
the first confession was plausible, he confessed again to prison personnel, and the
second confession to defendants changed due to plaintiff’s fear of Matt Mason.
This Court agress.
27

defendant’s failure to disclose the mental illness is misleading.
Second, plaintiff points to Masi’s deposition testimony that although he cannot recall
his testimony and he typically would have included both of plaintiff’s statements, he could
not state that he did. Because the Court must view all reasonable inferences in plaintiff’s
favor, he asserts, plaintiff is entitled to an inference that the grand jury only heard about
plaintiff’s first statement and not the second which contradicted the first and the facts of the
case. 9
Plaintiff has the burden of showing affirmative evidence that the grand jury was
provided with false or reckless testimony in order to overcome the grand jury’s conclusive
finding of probable cause. Plaintiff has produced no evidence of what occurred in the grand
jury. Plaintiff acknowledges that Masi cannot recall his testimony and that plaintiff is unable
to present a transcript of the proceedings. Plaintiff speculates as to what he believes Masi
may have testified to. The speculation is insufficient. See also Snow v. Nelson, - Fed.Appx.-,
2015 WL 8479623 (6th Cir. Dec. 10, 2015) (“Without a transcript of the grand jury
proceedings, there is no evidence that defendant-appellees testified falsely or recklessly and,
therefore, no evidence that undermines the presumption of probable cause created by the
indictment.”) The Court also finds the inferences to be unwarranted
Plaintiff asserts that Masi has stated that he did not know plaintiff was mentally ill

9

As defendant points out, both of these “inferences” concern whether Masi failed
to present exculpatory evidence to the grand jury. But, the Sixth Circuit has held
that no such duty exists. United States v. Adamo, 742 F.2d 927 (6th Cir. 1984).
Plaintiff cannot overcome the conclusive proof afforded to a grand jury
indictment by alleging that the grand jury should have been told additional
information.
28

and, therefore, he must not have testified that he was mentally ill. Masi did testify at
deposition that he did not have any suspicion that plaintiff had mental illness. (Masi depo.
72) Even if the Court assumes that Masi did not tell the grand jury about plaintiff’s mental
illness, plaintiff’s argument that Masi recklessly disregarded the truth about the mental illness
is not persuasive. Being told that plaintiff had been in a psychiatric hospital at some point and
plaintiff’s statement during his interview that he was on some form of psychiatric medication
does not necessarily equate to mental illness. Further, plaintiff’s statements made in the
second interview are also consistent with plaintiff’s stated fear of Mason. This is insufficient
evidence giving rise to reckless disregard for the truth.
Plaintiff also asserts that the Court may infer that Masi only presented plaintiff’s first
statement (of March 31), and not the second (of April 2), to the grand jury. Such an inference
is wholly unwarranted. Masi testified at his second deposition that although “I don’t know for
sure,” he would typically have provided the grand jury with both statements. Plaintiff cannot
turn this testimony into an inference that Masi did not tell the grand jury about the second
statement. This is mere speculation. Additionally, plaintiff points to his expert’s
supplemental report. John Sammon’s supplemental expert report states: “Masi said he does
not recall if he mentioned both of the statements made by [plaintiff] at the Lebanon
Correctional Institution on March 31, 1992, and April 1, 1992, although Masi assumes that he
did.” (Doc. 71 Ex. 2) Thus, even the expert acknowledges that Masi assumes he presented
both statements.
For these reasons, plaintiff cannot overcome the conclusive proof of probable cause

29

provided by the grand jury indictment and the malicious prosecution claim fails.10
Assuming there was no probable cause, Masi asserts that he did not make, participate,
or influence the decision to prosecute. Masi avers that he was not involved in the decision to
seek the indictment. (Masi aff. ¶ 47) Mesaros avers that the decision to present a case against
plaintiff to the grand jury was made by Mesaros and Mayer without Masi’s involvement.
(Mesaros aff. ¶¶ 27-30)
Plaintiff asserts that Masi participated in the decision to prosecute him without
probable cause by feeding plaintiff the information which led to his March 31 confession but
then stating in his report, which the prosecutor relied on, that he only disclosed some of the
pertinent information. Also, according to plaintiff’s expert, Masi, who was present without
the prosecutors, would have seen plaintiff’s mental illness on display at the March 31
interview. Masi had other interactions with plaintiff after the initial interview and yet did not

10

Plaintiff also argues there is an issue of fact as to probable cause because Masi
fed plaintiff the facts of the crime which resulted in the March 31 confession. As
discussed above, the evidence does not establish this. In particular, the Crawfords
told Masi that Tinney worked for White at the waterbed store. Tinney told them
that Mason told Tinney in 1988 that he snuck up behind White in the store while
White was putting money in the deposit bag. Mason said that he hit White over
the head with the butt of a gun, took the money, and fled the store. Masi then
interviewed plaintiff who asked what Masi had heard. Masi told plaintiff that
Mason had been convicted of a different homicide and Masi told plaintiff what
the Crawfords had told him. (Masi aff. ¶ 26) Plaintiff acknowledges that Masi
had not reviewed the case file prior to the first interview of plaintiff. Masi also
avers that at that point, he “had not yet reviewed the Ted White homicide file.”
(Id.)
Defendant also points out that plaintiff has never argued, in attempting to
withdraw his plea or otherwise, that Masi fed him the facts of the March 31
confession. (Doc. 73 at 8) Additionally, defendant notes that plaintiff testified
that he could recall nothing about his conversation with Masi on March 31. (pltf.
depo. 39-40)
30

alert the prosecutor to the fact of plaintiff’s mental illness which would have called into
question his reliability. Finally, while Masi continued to review the file up to the indictment,
he did not disclose to the prosecutors the inconsistencies between the initial confession and
the facts of the crime.
Plaintiff’s assertions are not persuasive. The evidence shows that Mesaros and Mayer
made the decision to indict. Masi provided them with his entire investigation, including his
reports. Mesaros avers that he reviewed the original murder investigation completed by the
police. Mesaros was present for the April 2 interview of plaintiff. Thus, he could have
observed plaintiff’s behavior. Mesaros testified that he knew about the inconsistencies but
still believed plaintiff was involved in the murder. Masi stated in his report of the March 31
interview that he disclosed some pertinent information to plaintiff. Because the prosecutors
had the report, they could have questioned Masi about what information was provided.
On these grounds, plaintiff does not establish that Masi participated in the decision to
prosecute based on his actions in misleading the prosecutors or failing to disclose pertinent
information. The malicious prosecution claim would fail on this basis as well.
As a final argument, defendant asserts he is absolutely immune from this claim based
on his grand jury testimony. In Rehberg v. Paulk, 132 S.Ct. 1497 (2012), the Supreme Court
held that a grand jury witness, including a law enforcement officer, has absolute immunity
from any § 1983 claim based on the witness’s testimony even if the testimony is perjurious.
The court stated:
For these reasons, we conclude that grand jury witnesses should enjoy the same
immunity as witnesses at trial. This means that a grand jury witness has absolute
immunity from any § 1983 claim based on the witness' testimony. In addition, as the
Court of Appeals held, this rule may not be circumvented by claiming that a grand
31

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. (internal citations, quotation marks, and alterations omitted) The court noted in a footnote
that “we do not suggest that absolute immunity extends to all activity that a witness conducts
outside of the grand jury room. For example, we have accorded only qualified immunity to
law enforcement officials who falsify affidavits... and fabricate evidence concerning an
unsolved crime. Id. But, defendant points out that plaintiff’s claim is premised upon Masi’s
grand jury testimony. Plaintiff asserts that his malicious prosecution claim is not based on
Masi’s grand jury testimony but on his failure to make a full and fair disclosure of all the
material facts to the prosecutors. If the claim exists independently of the grand jury testimony,
it is not “based on” that testimony and, therefore, Rehberg would not apply. Coggins v.
Buonora, 776 F.3d 108 (2d Cir. 2015). Plaintiff asserts that his claim against Masi is based on
conduct other than his grand jury testimony and so he is not entitled to absolute immunity.
The Court disagrees.
As defendant points out, plaintiff is attempting to prove the lack of probable cause- an
element of his malicious prosecution claim- by relying on Masi’s grand jury testimony to
show reckless disregard for the truth. Even though plaintiff claims these allegations are based
on conduct which occurred before the appearance at the grand jury, plaintiff’s attempt to
prove this element with Masi’s grand jury testimony shows that his claim is “based on” that

32

testimony. Thus, there would be absolute immunity. Plaintiff’s allegations of evidence
allegedly not presented to the grand jury (the mental illness and the April 2 statement) are
based on grand jury testimony. Plaintiff argues that if that evidence had been presented, the
grand jury would not have indicted. Plaintiff cannot avoid immunity on this basis.
For all of these reasons, plaintiff’s federal and state malicious prosecution claims
against Masi fail and he is entitled to summary judgment.
Conclusion
For the foregoing reasons, defendants’ Motion for Summary Judgment and defendant
Joe Masi’s Supplemental Motion for Summary Judgment are granted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 2/2/16

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