NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0145n.06 No. 12-2296 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JASMINE GUY JORDAN, Plaintiff-Appellant,

v. CITY OF DETROIT, et al ., Defendants, and COUNTY OF WAYNE; JOHN DOE 1-2, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: COLE and GRIFFIN, Circuit Judges; PEARSON, District Judge. *

BENITA Y. PEARSON, District Judge. Jasmine Guy Jordan (“Plaintiff”) appeals the district court’s order granting summary judgment to Wayne County (“Defendant”) on Plaintiff’s claims under 42 U.S.C. § 1983 for (1) maliciously prosecuting him without probable cause in violation of the Fourth Amendment and for (2) faili ng to protect him while being held as a pretrial detainee in violation of the Fourteenth Amendment. For the reasons that follow, we affirm the district court’s rulings.

* The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation.Jordan v. City of Detroit, et al. No. 12-2296 I. Factual and Procedural Background On October 30, 2007, Donn Richardson was shot and killed while being robbed on the street near his residence. Richardson’s fiancée, Li nda Milliner, witnessed the robbery. She told responding police officers that three men participatedin the robbery, one of whom held a gun. She described the man with the gun as a nineteen-year-o ld black male wearing a gray sweat jacket and hat, standing five feet eight or nine inches tall, weighing about 160 pounds, with short hair and a light skin complexion. Milliner was unable to descri be the other two men whom participated in the robbery. 1 Shortly after the shooting, police officers saw Pl aintiff, then seventeen years old, and his twenty-one-year-old brother, Cornell Massey, walki ng near the scene of the shooting. The officers stopped Plaintiff and Massey because of their youthf ul appearances and because Plaintiff fit the description of the man Milliner had described. Plaintiff weighed 220 pounds, has a dark complexion, was wearing a white and gray hoodie as opposed to a hat, and had a mustache and a goatee. Officers released Massey but detained Plai ntiff on a curfew violation. They placed him in the back of a police car and transported him to the scene of the shooting.

1 Milliner did not see the shooting. According to her testimony at the preliminary examination, Milliner observed the robbery from the window of her residence. The man holding the gun saw her in the window and indicated that she should move away from the window. Milliner did so. When Milliner heard gunshots she looke d out the window again, and she saw the men fleeing and her fiancé on the ground. 2Jordan v. City of Detroit, et al. No. 12-2296 When Plaintiff arrived at the scene, an officer pointed at Plaintiff sitting in the back of the police car and asked Milliner whether he was the shoot er. Milliner said that he was. As a result of Milliner’s positive identification, Plaintiff was arrested. A preliminary examination to determine probabl e cause to bind Plaintiff over for trial was held on November 20, 2007. The only evidence, asid e from stipulations, was Milliner’s testimony. She testified that she observed the robbery from the window of her residence. In court, Milliner identified Plaintiff as the man she had previously identified at the scene, and again identified him as the man who held the gun. During cross examination, Milliner was asked about: her ability to observe the incident; her initial description that sh e gave to police of the man with the gun; and the manner in which Plaintiff had been presented to her for identification at the scene. The state court judge, citing Milliner’s sworn testimony, found probable cause to hold Plaintiff criminally liable for the homicide of Richardson, and bound Plaintiff over to a grand jury. About three months later, the state court granted the prosecutor’s motion to dismiss the charges against Pl aintiff without prejudice because Milliner failed to appear at trial. Unbeknownst to the state court and Plaintiff, a few days after the shooting but prior to Milliner’s testimony at the preliminary examination, Milliner went to the police station and identified another man from a photo line-up— Juan Johnson, as the man with the gun. Meanwhile, upon his arrest in early November 2007, Plaintiff was taken to the Wayne County Jail. Although seventeen at the time, he was housed with adult prisoners for four months while the felony charges were pending against him. Plaintiff alleges that during his detention he was

3Jordan v. City of Detroit, et al. No. 12-2296 subjected to threats of physical harm by other inmate s, verbally abused by jail officials, and attacked by inmates on at least two occasions in February 2008. Plaintiff initiated the underlying civil lawsuit and asserted two claims against Defendant under 42 U.S.C. § 1983

. 2Count I, a malicious prosecution claim, alleged that Defendant detained and prosecuted Plaintiff without probable cause in violation of the Fourth Amendment. Count III, a deliberate indifference claim, alleged that Plain tiff’s detention in the adult population at the Wayne County Jail and Defendant’s failure to protect him there constituted deliberate indifference in violation of his right to due process of law under the Fourteenth Amendment, and was a result of Defendant’s systematic failure to enforce its own rules and regulations. The district court granted Defendant’s mo tion for summary judgment on both counts. Plaintiff filed a motion for reconsideration, which th e district court denied. Plaintiff now appeals the district court’s grant of summary judgment to Defendant on his § 1983 cl aims. He also argues that the court erred in granting summary judgment in light of its rulings on discovery matters, and that the court failed to follow the correct evidentiary standards.

2 Plaintiff also brought a 42 U.S.C. § 1985 conspiracy claim for depriving Plaintiff of his constitutional rights. The district court grante d summary judgment to Defendant on this claim. Plaintiff makes no mention of this ruling in his brief on appeal, nor does he mention the court’s grant of summary judgment to John Doe 1 and 2. Because Pl aintiff has failed to preserve these issues for appeal, we will not consider them. See Fed. R. App. P. 28(a)(5) (“appellant’s brief must contain . . . . a statement of the issues presented for review”); see also Thaddeus–X v. Blatter , 175 F.3d 378, 403 n.18 (6th Cir. 1999) (issues not presented to the court in initial briefs on appeal are deemed waived). 4Jordan v. City of Detroit, et al. No. 12-2296 II. Standard of Review Because the district court granted summary judgment in favor of Defendant, we apply a de

novo standard of review. White v. Baxter Healthcare Corp ., 533 F.3d 381, 389 (6th Cir. 2008) . The district court’s grant of summary judgment should beaffirmed “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) . The reviewing court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. White , 533 F.3d at 390 . An issue of fact is “genuine” if “a reasonable jury could return a verdict in favor of the non-moving party.” Niemi v. NHK Spring Co., Ltd. , 543 F.3d 294, 298 (6th Cir. 2008) ; Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986) . “A factual dispute concerns a ‘material’ fact only if its resolution might affect the outcome of th e suit under the governing substantive law.” Rogers v. O’Donnell , 737 F.3d 1026, 1030 (6th Cir. 2013) (citing Niemi , 543 F.3d. at 298–99 ). “After the moving party has satisfied its burden, the burden shif ts to the non-moving party to set forth ‘specific facts showing that there is a genuine issue for trial.’” Farhat v. Jopke , 370 F.3d 580, 587-88 (6th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986) ). When no genuine issues of material fact exist, we review de novo the district court’s conclusions of substantive law. Farhat , 370 F.3d at 588

. III. Discussion A. Malicious Prosecution Claim To succeed on a malicious prosecution claim, a plaintiff must show that: (1) a prosecution was initiated against the plaintiff and that the defe ndant participated in the decision; (2) there was

5Jordan v. City of Detroit, et al. No. 12-2296 a lack of probable cause for the criminal prosecu tion; (3) the plaintiff suffered a deprivation of liberty as a consequence of the legal proceedings ; and (4) the criminal proceeding was resolved in the plaintiff’s favor. Sykes v. Anderson , 625 F.3d 294, 308–09 (6th Cir. 2010)

. The district court found that Plaintiff’s malicious prosecution claim was barred by the doctrine of collateral estoppel. Plaintiff appeal s this holding and argues that his claim is not collaterally estopped. The district court also found, [e]ven were the court to assume that Plaintiff’s malicious prosecution claim is not subject to the preclusive effect of co llateral estoppel, Defendant Wayne County would nevertheless be entitled to summary judgment because Plaintiff has not proffered any evidence, nor even pled f actual allegations in the first-amended complaint, tending to show that a policy or custom of Wayne County was the “moving force” behind his alleged malici ous prosecution, a necessary requirement of a § 1983 municipal liability claim. Jordan v. City of Detroit , 2012 WL 2526927, at *7 (E.D.Mich. June 29, 2012) . Plaintiff does not challenge this holding. To succeed on a § 1983 claim against a municipal defendant, a plaintiff must “identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.” Graham ex rel. Estate of Graham v. Cnty. of Washtenaw , 358 F.3d 377, 383 (6th Cir. 2004) (internal quotation marks and citation omitted); see also Monell v. Department of Soc. Servs ., 436 U.S. 658, 694 (1978) . The district court correctly noted that Plaintiff failed to produce any evidence of a policy or custom and did not include allegations of a

6Jordan v. City of Detroit, et al. No. 12-2296 policy or custom regarding the malicious prosecuti on claim in the complaint. Plaintiff’s claim of malicious prosecution therefore fails on the merits. 3
We affirm the district court’s alternative hol ding that Plaintiff’s malicious prosecution claim fails on the merits. B. Rulings on Discovery Matters Plaintiff argues that the district court erre d in granting summary judgment when discovery was incomplete. He states that Defendant “failed to turn over crucialinformation needed to support” his claims. (Emphasis in original.) Plaintiff also argues that the district court should have drawn an adverse inference against Defendant because of its failure to disclose discovery information, although he fails to articulate what sp ecific adverse inference should have been drawn. 1. The District Court Did Not Abuse Its Discretion We review a district court’s decision as to the scope of discovery, including the denial of additional time for discovery, under an abuse of discretion standard. See Doe v. Lexington-Fayette Urban County Gov’t , 407 F.3d 755, 760-61 (6th Cir. 2005) ; Dowling v. Cleveland Clinic Found ., 593 F.3d 472, 478 (6th Cir. 2010) . Factors to be considered are: (1) when the appellant learned of the i ssue that is the subject of the desired discovery; (2) whether the desired discovery would have changed the ruling below;

3 Because we affirm on the merits, there is no n eed to resolve the collateral estoppel issue. This “merits first” approach is consistent withother cases in which we address straightforward merits questions rather than complicated affirmative defenses. See, e.g., Desai v. Booker , 732 F.3d 628, 632 (6th Cir. 2013) (“Having concluded that Desai’s due process claim fails on the merits, we need not reach the State’s alternative argument that he procedurally defaulted the claim.”); Pough v. United States , 442 F.3d 959, 965 (6th Cir. 2006) (avoiding a non-jurisdictional statute of limitations issue in favor of a straightforward merits-based determination). 7Jordan v. City of Detroit, et al. No. 12-2296 (3) how long the discovery period had lasted ; (4) whether the appellant was dilatory in its discovery efforts; and (5) whether the appellee was responsive to discovery requests. Plott v. General Motors Corp., Packard Elec. Div ., 71 F.3d 1190, 1196–97 (6th Cir. 1995) ; Dowling , 593 F.3d at 478 . “The overarching inquiry in these overlapping factors is whether the moving party was diligent in pursuing discovery.” Id

. None of the Plott factors weigh in Plaintiff’s favor. Th e district court aptly described the discovery dispute between the parties as follows: [o]n December 15, 2012, an earlier discovery dispute was resolved between the parties with the entry of a stipulated order directing Defendant Wayne County to produce various outstanding discovery requests within ten days of the entry of the order. Over the course of the next three months, neither party filed a motion to compel discovery nor contacted the court toseek its assistance in any other discovery matters. The parties were quiet as mice. In spite of the December 2012 order, which placed a ten-day deadline on the production of outstanding discovery requests, Plaintiff’s counsel, who now argues th at the December 2012 order was not fully satisfied, did not contact Defendant Wayne County’s counsel to inform her that discovery requests were still outstanding until March 6, 2012. Nor did he file a motion with this court until th e eve of the discovery deadlin e. The lack of diligence on the part of counsel for both parties during the discovery period certainly makes the requests for sanctions and protective orders less persuasive than they would have been if the issues had been timely brought to the court’s attention.

Jordan , 2013 WL 2526927, at *4 n. 7 (internal citations omitted). Regarding the first Plott factor, Plaintiff clearly learne d of the subject of the desired discovery well in advance of the discovery cutoff date . Also, Plaintiff has not shown that the desired discovery would have changed the ruling below, the second Plott factor. As it relates to his malicious prosecution claim, Plaintiff asserts the crucial information he sought included the

8Jordan v. City of Detroit, et al. No. 12-2296 prosecution file and the “In-Car Videos” and “Audio Recordings.” 4He does not explain how the recordings would have been crucial or what speci fically about the prosecution file would have been relevant to his malicious prosecution claim. Moreover, any additional information regarding the conduct of law enforcement officers during the even ts that took place on the night of the shooting would not rectify Plaintiff’s failureto identify and plead a policy or custom that caused a violation of his Fourth Amendment rights. Plaintiff also complains that, relevant to hi s due process claim, Defendant did not provide the name of the corrections officer responsible fo r housing him with adult prisoners. This argument is not well taken. Defendant identified Eric Troszak and Sylvester Foote as persons involved in the inmate classification process. They stated that the identity of the individual that actually made the decision as to which ward Plaintiff would be housedis unknown. The district court, considering the propriety of Defendant’s responses, stated, [t]hus, contrary to Plaintiff’s claims , Defendant Wayne County did not purposely withhold the identity of the classification o fficer or refuse to respond to his discovery requests. Instead, the record shows that Wayne County informed Plaintiff well before the close of discovery that after reasonable inquiry it could not identify the specific officer that made the decision to house Plaintiff in the adult population. It nevertheless provided Plaintiff with the id entity of two officers who were involved in the classification process at the jail during the time of Plaintiff’s detention. Plaintiff apparently made no effort to depose these two officers, nor did he ever appear for the properly noticed depositions. Based on these facts, an adverse inference should not be drawn against Defendant Wayne County.

4 The transcript Plaintiff cites, the discove ry hearing, does not refer to any videos or recordings, and the only mention of the prosecution file is made by th e court. Instead, the transcript reveals that Plaintiff complained about Defendant’s conduct in responding to discovery requests. At no time did Plaintiff voice concern that l ack of discovery materials precluded him from responding to a motion for summary judgment. 9Jordan v. City of Detroit, et al. No. 12-2296 Jordan v. City of Detroit , 2012 WL 3583535, at *2 (E.D.Mich. Aug. 20, 2012) . Defendant could not provide what it did not have, and Plaintiff was not diligent in pursuing the name of the officer using the information Defendant did provide. As for the remaining Plott factors, the discovery period lasted about seven months, a reasonable time frame. Plaintiff was dilatory in his discovery efforts and was not responsive to discovery requests. Notably, although Plain tiff expresses outrage on appeal that “ not a single deposition had been taken,” (emphasis in original), the record in the district court reveals that Plaintiff: refused to be deposed; canceled schedul ed depositions of Defendant’s employees; and did not attempt to depose the two individuals whose names Defendant provided relating to Plaintiff’s classification at the prison. Additionally, Plain tiff expressed agreement, during the hearing on pending discovery motions, with the district court’s inclination to permit Defendant to file a motion for summary judgment without further discovery. 5 We also consider a court’s inherent authority to “control its docket in promoting economies of time and effort for the court, the parties, and the parties’ counsel.” Gonzalez v. Ohio Cas. Ins. Co. , 2008 WL 4277258, at * 1 (E.D.Mich. Sept. 17, 2008) (citing Landis v. North American Co. , 299 U.S. 248 (1936) ); see also First Bank of Marietta v. Hartford Underwriters Ins. Co. , 307 F.3d 501, 514-15 (6th Cir. 2002)

.

5 At the hearing, the district court expressed aninclination to hold in abeyance ruling on the discovery disputes and to permit Defendant to file its summary judgment motion in keeping with the original case management dates. The court further stated that if, after reviewing Defendant’s motion, Plaintiff required additional discovery mate rial, then Plaintiff would indicate so in his responsive brief. Plaintiff filed a responsive brief 47 days later, without leave of court, and did not indicate that he could not respond to the motion without further discovery. 10Jordan v. City of Detroit, et al. No. 12-2296 In light of the above, it cannot be said that the district court abused its discretion in ruling on the discovery matters. The district court’s discovery rulings are affirmed. 2. There is No Adverse Inference to be Drawn Plaintiff argues for an adverse inference based on Defendant’s alleged failure to provide him with prosecution materials regarding the malici ous prosecution claim and, more generally, the due process claim. “‘[T]he general rule is that [w]here relevant in formation . . . is in the possession of one party and not provided, then an adverse inference may bedrawn that such information would be harmful to the party who fails to provide it.’” Clay v. United Parcel Serv., Inc. , 501 F.3d 695, 712 (6th Cir. 2007) (quoting McMahan & Co. v. Po Folks, Inc. , 206 F.3d 627, 632-33 (6th Cir. 2000) ). As already discussed, supra , Plaintiff does not identify relevant information in Defendant’s possession that Defendant failed to provide him and describe what adverse inference should be drawn. We find that the district court correctly determined that Plaintiff was not entitled to an adverse inference. C. Evidentiary Standards Applied to the Due Process Claim Plaintiff argues that the district court erred in granting summary judgment on his due process claim because Defendant failed to meet its eviden tiary burden by failing to point to deficiencies in Plaintiff’s claim. Plain tiff also argues that the district court erred because it misconstrued his claim. Plaintiff argues that “the salient question was whether Plaintiff was deprived of a constitutional right by Defendant’s ‘failure to protect’ him after he was housed with the ‘adult inmates.’” (Emphasis omitted.)

11Jordan v. City of Detroit, et al. No. 12-2296 To the extent Plaintiff argues the decision to house him with the adult inmates in general population violated a constitutional right, he fails to identify any custom, policy or practice of Defendant, connect that policy to the Defendant and show it caused a constitutional violation. That omission is fatal to his claim. See Graham , 358 F.3d at 383 . Plaintiff only cites Defendant’s “Jail Operations Manual” which he claims provides th at 17-year-olds should not be housed with the general population. He does not advance evidence insupport of his allegation that Defendant has a policy or custom not adhering to the operations manual. Instead he merely states that “the [] policy and procedures were not adhered in this case.” (Emphasis inoriginal.) A single instance, without more, does not amount to a custom, policy or practice. See City of Oklahoma City v. Tuttle , 471 U.S. 808, 823-24 (1985) (“Proof of a single incident of uncons titutional activity is not sufficient to impose liability under Monell , unless proof of the incident in cludes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”). 6 To the extent Plaintiff argues that Defendant failed to protect him, the argument is also without merit. To succeed on such a claim, a plain tiff must show that (1) “he is incarcerated under conditions posing a substantial risk of serious harm[,]” and (2) defendant acted with “deliberate indifference” to that risk. Farmer v. Brennan , 511 U.S. 825, 834 (1994) . Again, Plaintiff offers no proof of any policy or custom that caused a constitu tional violation. Moreover, as the district court noted, Plaintiff fails to advance evidence in support of his allegation that he was attacked twice

6 Defendant rejoins, as it did in the district court, that it was permitted to house a 17-year-old charged with a serious crime with the adult population. 12Jordan v. City of Detroit, et al. No. 12-2296 while in prison. Plaintiff refused to be deposed; he did not even file an affidavit swearing that he had been attacked. Finally, Plaintiff erroneously places the burden on Defendant to show that the officers were given adequate training—it is not Defendant’s burden to show adequate training. See
Horton v. Potter , 369 F.3d 906, 909 (6th Cir. 2004) (“The moving party discharges its burden by showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.”) (internal quotation marks and citation omitted). Defendant pointed out to the district court th at there was an absence of evidence to support Plaintiff’s case, thereby discharg ing its burden. Plaintiff did notadvance any evidence in support of his claim, failing to meet his burden. See id

. The district court applied the correct evidentiary standards when it granted Defendant’s motion for summary judgment, and we affirm the court’s ruling. IV. Conclusion For the foregoing reasons, we affirm the judgment of the district court.

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