NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0385n.06 Nos. 11-3853, 11-3855, 11- 3996 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

NOEL MOTT , P laintif f-App ellee, (11-3853, 11- 3855) P laintif f-App ellant, (11-3996)

v. MATT MAYER; LARRY F AITH; (11-3853) CHARLES METCALF, (11-3855) Defendan ts-Appellants, Defendan ts-Appellees, (11-3996) J. STE VEN SHEL DON; RICHLAND COUNTY, OHIO; JERREL L BRAY, Defendan ts. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL F ROM THE UNITED STATE S DISTRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO

Before: M ARTIN, SUHRHEINRICH, and GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. I n 2005, Noel Mott beca me a targ et of “Ope ration Turnar ound,” an investiga tion by the Richland County , Ohio Sheriff’ s Offic e (“RCSO”) and the Drug Enforc ement Administration (“D EA”) to combat cra ck coca ine traff icking in the city of Mansfield and Richland County

. He wa s i n dicted on drug -re lated char g es and pled g uilty

. I n 2007, the United States dismiss ed the char g es ag ainst Mott and other defe ndants who wer e char g ed

as a result of “Ope ration Turnar ou n d ” afte r it was discovere d that J err ell Br ay , a confide ntial opera tive, had eng ag ed in illeg al conduc t throug hout the investiga tion.Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 Mott broug ht an action pursuant to 42 U.S.C. §§ 1983, 1985, and B i ve n s v. S ix Unknown Agents , 4 0 3 U. S

. 388 (1971), ag ainst state and fede ral officia ls, including Serg eant Matt May er, Captain L arr

y Fa ith, and Detec tive Charles Metca lf of the RCS O. Mott asser ted sever al claims: (1) 1 false arr est, (2) malicious prosec ution, (3) fabri cation of evidenc e, (4) violations of his Four th Am en d m en t ri g ht to be fre e from unrea sonable seizure, (5) a Brady violation based on the Fifth Amendment Due Process Clause, and (6) conspirac y to fabr icate evidenc e and tamper with evidenc e in order to falsely arr est, detain, and ch ar ge Mott. The district court considere d the defe ndants’ motions for summary judgme nt on the basis of qualified immunit y and made sever al ruling s rele vant to this appea l. The district court denied May er qualified immunit y as to the fabr ication of evidenc e claim and denied Fa ith and Metca lf qualified immunit y as to the false arr est claim. I t g rante d their motions wit h respe ct to all rema ining c laims. Mott now appea ls the district court’s g rant of qualified immunit y to the defe ndants as to the malicious prosec ution claim. May er and Fa ith jointly appea l the district court’s denial of qualified immunit y as to the fabr ication of evidenc e and false arr est claims, respe ctively

. Metca lf appea ls the d i s t ri ct co u rt ’s denial of qualified immunit y as to the false arr est claim. We reve rse the distric t court’s g rant of sum m ar y judgme nt to the defe ndants as to the malicious prosec ution claim and

rema nd to the district court for further proce eding s. We aff irm the district court’s denial of May er’ s, Fa ith’s, and Metca lf’s motions for summary judgme nt on the basis of qualified immunity

.

Mott re ache d a settlement ag ree ment with the fede ral defe ndants and dismiss ed all claims 1 ag ainst th em . As a result, only May er, Fa ith, Metca lf, Br ay , J

. Steven Sheldon, and Richland County , Ohio, rema in as defe ndants in this action. 2Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996

I. The RCS O launc hed what came to be known as “Ope ration Turnar ound” afte r Timothy Har ris’s body was found in Richland County on Dec ember 31, 2004. I nvest i gat o rs b elieved that Har ris’s killing was rela

ted to dr ug traff icking

. The RCS O aske d Br ay to make controlled buy s of illega l drug s from individuals i n the are a in order to develop leads reg arding Har ris’s death. I n J anuar y 2005, the R CSO executed a Confidential Oper ative Ag ree ment with Bra y , who was to be supervised by May er and Metca lf. I n Aug ust or September 2005, the DEA Task For ce in Cleveland beg an to assist with the investiga tion. The DEA also enter ed into a Confidential Source Ag ree ment with Bra y , who was to be supervised by Special Ag ents L ee L

ucas a nd Robert Cross. Eac h controlled buy was supposed to proce ed as follows. Br ay and the RCS O office rs would ident i fy a t ar get and inform the DEA ag ents, who would supply the buy money and trave l from Cleveland to assist. Br ay would place a phone call to the t arg et. I nvestig ators would sear ch B ray and his vehicle befor e the buy and follow Br ay to the l o ca t i o n o f the buy , attempting to view or

re co rd the t ransa ction when possibl e. After the buy , they would follow Br ay back to the s heriff ’s office , sear ch B ray ’s per son and vehic le, and take a stateme nt from B ray . A. Severa l events occ urre d during Br ay ’s re lationship with t he RCSO and the DEA tha t Mott arg ues demonstra te that B ray was not a r eliable informant. He also arg ues that investiga tors err ed by repe atedly failing to corr oborate Br ay ’s statements. We descr ibe a few of the events ref ere nced

3Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 by the district court in order to illust rate the conduct of Br ay and the investiga tors during “Ope ration Turnar ound.” On Fe bruar

y 10, 2005, Metca lf asked Detec tive Dawn Br own, a detec tive with METRI CH,

a multi-county drug task forc e, to assist with a controlled buy that Br ay was to make that day

. Br own

ex presse d conce rn that Br ay , who was on parole afte r serving a prison sentenc e for involuntary manslaug hter, was acting as a confide ntial opera tive without the consent of his parole office r. Br ay

never theless completed the buy

. Br own’s notes express sever al conce rns about the way that the buy

was conducte d. May er and Metca lf did not know wher e Br ay was during the transac tion, and they did not follow Br ay afte r the buy , even though they wer e responsible for monitoring him in order to

ensure both the safe ty

of the pa rties involved and the integ rity of the e vidence

. Ab o u t a m o n t h later, Bra y claimed that he purchased cra ck cocaine and a g un from Ty ron Br own an d J ason Westerfield in a controlled buy on Marc h 12, 2005, and that he boug ht cra ck

coca ine from W es t er fi eld in a controlled buy on Marc h 15, 2005. May er and Metca lf conducte d surveillance on the Marc h 15 transac tion. I n May er’ s repor t, he noted that Metca lf, who was familiar wi t h W est erf

ield and knew what he looked like, “could see a visual on [Bray ] and J as o n Westerfield.” Metca lf later testified that he saw Br ay g o into a house and saw Westerfield’s car pull up to the house, but he did not know whether the man who g ot out of the car was Westerfield. Both May er and Metca lf knew that Westerfield was wea ring a GPS issued by the Adult Parole Authority , and May er’ s repor

t noted that they should chec k the GPS rec ords to confirm his wher eabouts at the time of the alleg ed drug sale. Mott arg ues that there is no evidenc e that May er and Metca lf chec ked

4Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 the GPS rec ords, and May er and Metca lf do not dispute this. The GPS rec ords would have reve aled that Westerfield wa s not present a t the location of e ither the Mar ch 12 or the Marc h 15 buy

. On Marc h 31, 2005, Br ay ’s g irlfriend told the RCS O that Br ay had cra ck coca ine, which the RCS O had not authorized him to have, hidden in the steering whee l of his car . This violated Br ay ’s Confidential Oper ative Ag ree ment with the RCS O. He wa s arr ested a nd char g ed with drug abuse and possession of drug s. Br ay told Metca lf about the incident, offe ring conflicting explanations for the drug s, and aske d Metca lf to help resolve the issue. The c ase w as dismissed. B. Even t u all y , Mott was identified as a targ et of “Ope ration Turnar ound.” On September 6, 2005, Br ay told investiga tors that he had arr ang ed to buy drug s from Mott. They provided Br ay with $ 2 , 8 0 0 in buy money and a rec ording device

. L ucas, Metca lf, and Sheldon followed Br ay as h e picked up J im Wil liams and proce eded to 435 Tremont Avenue , wher e Br ay and Wil liams enter ed

a residenc e. About half an hour later, Br ay and Wil liams left. After Br ay dropped Wil liams off, he proce eded to a pre- deter

mined meet loca tion and g ave L ucas a nd Cross 72.2 gr oss g rams of cra ck

coca ine that Br ay said he purcha sed from Mott inside the residenc e for $750. The transac tion wa s

rec orded, but there is nothing in the re co rd i n d icating that investiga tors attempted to verify the identity of the drug seller on the rec ording

. During a proff er interview afte r M o t t’s indictment, another targ et of “Ope ration Turnar ound , ” R i co Spires, identified the seller on the rec ording as Dar ren Transou, who lived at 435 Tremont Avenue

. Spires said Mott was not involved in the drug buy

.

5Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 Also on September 6, B ray told the investiga tors that Mott had asked Bra y to drive him to Detroit to purcha se more coca ine. Br ay said that Mott planned to spend $36,000 on d ru gs an d wanted to leave the next morning

. The investiga tors planned to have Br ay , who would be wired with

a rec ording device , drive Mott and Spires to Detroit and to have a trooper pull over their vehicle on the way , g iving investiga tors an opportunity to seize the drug money . On September 7, May er and Special Deputy Way

ne L eg itt followed Br ay , whose vehicle Metca lf was trac king using GPS, to 435 Tremont Avenue, which is ref err ed t o as “M o tt’s residenc e” in L ucas’ s repor t. Br ay claimed that when he g ot to the residenc e, he was told to meet Mott and Spires at a g as station and to follow them
to Detroit instead of driving them in his car . Br ay went to the g as station, wher e he met Transou and another woman. Acc ording to L ucas’ s repor t, Br ay told investiga tors that he was instructed to follow Transou, who was driving a 1996 For d Bro n co , beca use Mott and Spires had alre ady left. A METRI CH office r’s repor t indicates that investiga

tors did not know that Mott was not in the Br onco until it was pulled ove r. The B ronco w as sea rche d, but no drug s or money wer e found. On September 15, 2005, Br ay told investiga tors that he had arr ang ed to bu y more cra ck

coca ine from Mott. Br ay said that he set up the buy by calling Mott a t a cell phone number, which Spires later told investiga tors was Transou’ s number, not Mott’s number. I nvestig ators g ave Br ay $2,400 and a r ecor ding de vice, whic h Fa ith was monitoring. L ucas and May er followed Br ay to a marke t, wher e he met a man whom he identified as Mott in the parking lot. Then they followed Br ay and “Mott” to 435 Tremont Avenue

. “Mott” went into the residenc e and returne d with another man. The man h an d ed “M o t t ” 81.4 g ross g rams of cra ck cocaine, and Bray g ave “Mott” $1,620 for the drug s. Br ay hid the rema ining $780 in buy money behind the radio in his car . I n a conver sation that 6Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996

was c apture d on Br ay ’s re cording device , Br ay told the i nvestig ators that Mott wanted more t han $2,400 and that B ray threw in $20 of his ow n money to make sure that the deal did not “g o sour.” Ba ck at the sheriff

’s office , investiga tors sear ched Br ay ’s car and found the $780 hidden behind the radio. Br ay told the investiga tors, “Tha t’s the rest of y a’ll money rig ht there ,” explained that he hid the money beca

use he did not want to be robbe d, and admitted that he a ctually g ave Mott $1,620. I n L ucas’ s repor

t reg arding the incident, he stated that Br ay returne d the rema ining $780 but did not mention B ray ’s initial lie about how much he paid for the drug s or how the money was discovere d in Br ay ’s car . Br ay continued to work as a confide ntial inform an t an d s u ffe red no neg ative conseque nces f

rom the incident. C. O n N o v e mb e r 8 , 2 0 0 5 , L

u c a s testified befor e a g rand jury reg arding “Ope ration Turnar o u n d

. ” He descr ibed Mott as “one of the larg er drug deale rs” from Detroit. L ucas testified that Br ay purcha sed 27.6 g rams of coca ine from Mott on September 6, 2005. He also test i fi ed that investiga t o rs foll owed Mott and two other men in a Bronco on September 8. Finally , L ucas said 2 that Br ay boug ht 50.8 gr ams of cr ack c ocaine from Mott on September 15, 2005. The g rand jury

issued an indictment on November 9, 2005. Count One cha rg ed Mott with conspiring to possess with intent to distribute and to distribute fifty g rams or more of cra ck coca ine

I t is unclea

r whether L ucas was ref

err ing to the September 7 incident in which o ff i cers 2 pulled over the Br onco on the wa y to Detroit or anothe r sepa rate incident on September 8. 7Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 from winter 2005 to November 2005 with nineteen other indicted persons. Count Fifte en char g ed 3 Mott with knowing ly and intenti o n al l y distributing five g rams or more of cra ck coca ine, in

connec tion with Bray ’s alleg ed drug buy on September 6. Count Twenty -Two charg ed Mott with knowing ly and int entionally distributing fifty g rams or more of cra ck co ca i n e, i n connec tion with Br ay ’s alleg ed drug buy

on September 15. Mott was arr ested on November 10, 20 0 5 , by L ucas, Cross, Metca lf, and Fa ith. L ucas advised M o t t o f his Miranda rig hts, and Mott said that he wanted to make a statement. Mott admitted to selling and transporting cra ck coca ine in Mansfield for Damadr e Br ooks but claimed that he was a middleman who made only a few hundred dollars. Mott denied having any connec tions to larg e-sc ale deale rs in Mansfield and denied transporting kilos of coca ine to Mansfield from Detroit. Mott said that most of the people who sold larg e amounts of drug s in Mansfield wer e supplied “by

a g uy named ‘Unc ,’” who investiga tors identified as J ames Bur ton. Mott told investiga tors that Unc supplied Mott’s g irlfriend’ s brother, J oe Ward, and her mother, J ohnie Parker , and that Unc met with Ward, Albert L ee, a

nd others to discuss their cr ack c ocaine business. On M arc h 15, 2006, a g rand jury issued a superse ding indictment, char g ing Mott with
essent i al l y the same misconduct as the orig inal indictment. On May 2, 2006, Cross and Special 4 Agen t J o s ep h Har

per interviewe d Mott. Mott expli citly denied selling Br ay cra ck coca ine on

The superse ding indictment corr ecte d the dates in the orig inal indictment, alleg ing that the 3 conspirac y

took place be tween w inter of 2004 a nd November

2005. Count One of the superse ding ind i ct m ent alleg ed that the conspirac y took place betwee n 4 winter of 2004 and November 2005. Mott’s alleg ed drug sale on September 15, 2005, was char g ed in Count Twenty -F our instead of Count Twenty -Two.

8Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 September 6, 2005, and September 15, 2005. He ad m i t t ed t o b ei ng prese nt at the 435 Tremont Avenue residenc e on September 6 when Br ay was there but stated that both he and Br ay purcha sed

cra ck coca ine from Wil liams. Mott said that Wil liams was his main source of narc otics but that he also boug ht marijuana f

rom Spires on sever al occ asions. Mott stated that he boug ht coca ine from “Chee se” and cra ck co ca i n e fr om Br ay , Deondr ay Br adley , and, on one occa sion, from Fr eddie Parker , J ohnie Parke r’s husband. Mott also tol d investiga tors that he sol d narc otics at a house of f Diamond Street with F reddie Parker or at a trailer pa rk off Ashland Road. Mott pled g uilty to Count One of the superse ding indictment on May 24, 2006. The char g es reg arding the alleg ed drug buy s on September 6 and September 15 wer e dismiss ed. Mott also pled g uilty on Aug ust 29, 2006, to distributing coca ine base while he was out on bail. He was sentenc ed
to a term of fifty -one months’ imprisonment on Count One and forty -six months’ imprisonment on the distribution charg e, to run c oncurr ently

. D. On Dec ember 20, 2007, Br ay pled g uilty to two counts of perjury and fiv e co u n t s o f depriva tion o f ci v i l rig hts as a result of his conduct during “Ope ration Turnar ound.” Shortly there afte r, the g overnme nt filed a motion for leave of court to dismiss the char g es ag ainst Mott and other “Ope ration Turnar ound” defe ndants. The g overnme nt acknow l edg ed that “B ray was an essential witness to the char g es” to which the defe ndants pled g uilty or wer e co n v i ct ed and that “B ray ’s illega l conduct was so perva sive and h i s cr ed i b i l ity so tainted by his g uilty plea” that the defe ndants wer e entitled to new trials or to withdraw their g uilty pleas. The district court withdrew

9Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 the defe ndants’ g uilty pleas, vacated their convictions and s en t ence s, and dismiss ed the char g es ag ainst them on J anuar

y 25, 2008. E. On J anuar y 22, 2010, Mott filed suit ag ainst state and fede ral officia ls in the Norther n District of Ohio. The defe ndants moved for summary judgme nt on t h e b as i s o f qualified immunit y . The district court issued an order reg arding the defe ndants’ motions on J uly 15, 2011. I t denied L ucas, Fa ith, Metca lf, and Cross qualified immunit y as to Mott’s false arr est claim. I t denied L ucas and May er qualified immunit y as to the fabr ication of evidenc e claim. I t g rante d qualified immunit y to L ucas, Fa ith, Metca lf, May er, and Cross as to a ll r emaining claims. The district court also g rante d qualified immunit y to S h eldon, Kar en P. Tandy , Anthony C. Marotta, Robert L

. Corso, J ohn Fe rester , J amaa l Ansari, and T homas Ver ihiley

. On J uly 25, 2011, Mott filed a motion asking the district court to rec onsider its dismiss al of his malicious prosec ution claim or, in the alterna tive, to g rant him permission to appea l pursuant to Fe dera l Rule of Civil Procedur e 54(b). The district court denied Mott’s motion for rec onsideration but g rante d his motion fo r a cer tification of leave to appea l the dismiss al of the malicious prosec ution claim. The district court enter ed final judgme nt for the defe ndants on the clai m and stay ed further proce eding s pending t h e re solution of Mott’s appea l and May er’ s, Fa ith’s, and Metca lf’s qualified immunity appea ls. Severa l months later, Mott rea ched a settlement ag ree ment with the fede ral defe ndants and ag re ed t o d ismiss with prejudice all claims ag ainst them. On Fe bruar y 8, 2012, the district court

10Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 approve d the partial dismiss al. As a result, only May er, Fa ith, Metca lf, Br ay , Sheldon, and Richland County , Ohio, rema in as defe ndants in this action. II. This court has j u ri s d i ction to consider the parties’ appea ls. We consider Mott’s appea l pursuant to Fe dera l Rule of Civil Procedur e 54(b), which permits a district court to “ce rtify a partial g rant of summary judgme nt for immediate appea l ‘if the court expressly deter mines that there is no just reason for delay .’” Planned Parenthood Sw. Ohio Region v. De W ine , 696 F.3d 490, 500 ( 6th Cir. 2012) (quoting Fed. R

. Civ. P. 54(b))

. May er ’s, Fa ith’s, and Metcalf’s appeals of the di strict court’s denials of qualified immunit y are interlocutory appea ls that we hear as final decisions of the district court pursuant to the “collate ral order ” doctrine. Gregory v. City of Louisvill e , 444 F.3d 725, 742 (6th Cir. 2006). We reviewa district cour t’s g rant or denial of summary judgme nt on the basis of qualified immunit y de novo . Simmonds v. Gene see Cnty. , 682 F.3d 438, 444 (6th Cir. 2012); W alker v. Davis , 649 F.3d 502, 503 (6th Cir. 2011). Summary judgme nt is proper wher e no g enuine issue of materia l fac t exis ts and the moving party is entitled to judgme nt as a matter of law. Fe d R. Civ. P. 56(a)

. I n considering a motion for summary judgme nt, w e construe all rea sonable infe renc es in f avor of the nonmoving pa

rty

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Qualified immunit y protec ts g overnme nt officia ls from liability “whe n a rea sonable officia l in the defe ndant ’s position would not have understood his or her actions to violate a person’ s constitutional rig hts.” Meals v. City of Mem phis , 493 F.3d 720, 7 2 9 (6 t h Cir. 2007). “Unde r the doctrine of qua li f

ie d im mu n it y , ‘ g o v e rnment officia ls perf orming discretionar

y functions[] g ener ally 11Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996

are shielded from liability for civil damag es insofar as their conduct does n ot violate clea rly established statutory or constitutional rig hts of which a rea sonable person would have known.’” Id. (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). I n Sauci er v. Katz , the Supreme Court established a two-step inquiry for deter mining whether an officia l is entitled to qualified immunit y . 533 U.S. 194, 201 (2001). We must consider (1) whether, viewing the evidence in the l ight most favor able to the i njured pa rty , a constit utional rig h t h as b ee n v i olated; and (2) whether that rig ht was clea rly established. Id. I n Pearson v. 5 Callahan , the Supreme Court he ld tha t w hile the seque nce se t forth in Katz is often appropr iate, it is not mandatory , and courts have discretion to decide which of t h e two prong s of the qualified immunit y analy sis to address first. 555 U.S. 223, 236 (2009). Once a defe ndant raises the qualified i m m u n i t y d efense, the burden is on the plaintiff to demonstrate that the officia l is not entitled to qualified immunit y by alleg ing fac ts sufficie nt to show that the officia l’s act violated clea rly established law at the time that it was committed. Simmonds , 682 F.3d at 444. “To defe at the qualified immunit y bar, a plaintiff ‘must prese nt evidenc e sufficie nt to cre ate a g enuine issue as to whether the defe ndant committed the acts that violated the law.’” Id. (quoting Adams v. Met i va , 3 1 F.3d 375, 386 (6th Cir. 1994)). “To make out a genuine issue of

Some panels of this court have employ ed a three -step qualified immunit y analy sis, asking , 5 in a ddition to the Katz questions, “ whether the plaintiff offe red sufficie nt e vidence to indica te that what the officia l alleg edly did wa s o b j ec t ively unrea sonable in light of the clea rly established constitutional rig hts.” Estate of Carter v. City of Detroit , 408 F. 3 d 3 0 5 , 3 1 1 n.2 (6th Cir. 2005) (interna l quo t at i o n marks omitted). “[T] he three -step approa ch may in some case s incre ase the clar ity of the proper analy sis,” but “ [i ]n many fac tual contexts

. . . , including this one, the fac t that a rig ht is ‘cle arly established’ sufficie ntly implies that its violation is objectively unrea sonable.” Id. 12Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 materia l fac t, plaintiff must prese nt signific ant probative evidenc e tending to support her version of the facts, evide nce on which a re asonable jury could return a verdict for her.” Chappell v. C ity of Cleveland , 585 F.3d 901, 913 ( 6th Cir. 2009). III. We consider Mott’s appe al first. Mott arg ues that the district cour t errone ously

conclude d that the defe ndants had probable cause to prosec ute him, and, there fore , that Mott did not me et his burden of producing evidenc e that h i s co n s t i tutional rig ht was violated. Mott contends that the district court com m i t t ed t h ree err ors: (1) it failed to ask whether there was probable cause to prosec ute him for the particula r offe nses with which h e was char g ed; (2) it held that Mott’s postarr est statement could supply probable cause for his indictment, which pre- dated his arr est; and (3) it err oneously conclude d that the substance of his post-arr est statement supported the char g es ag ainst him. This court rec og nizes a “‘c onstitut ionally cog nizable c laim of malicious prosec ution under the Four th Amendment’” encompa ssing “wr ong ful investiga tion, prosec ution, conviction, and incar cer ation.” Barnes v. W right , 449 F.3d 709, 715-16 (6th Cir. 2006) (quoting Thacker v. City of Columbus , 328 F.3d 244, 259 (6th Cir. 2003)). “The ‘tort of malicious prosec ution’ is ‘entire ly distinct’ from that of false arr est, as the malicious-prosec ution tort ‘re medies detention acc ompanied not by absenc e of le g al proc ess, but by wrongful institut ion of leg al proce ss.’” Syke s v. Ande rson , 625 F.3d 294, 308 (6 th Cir. 2010) (quoting W allace v. Kato , 549 U.S. 384, 390 (2007))

. The elements of a malicious prosec ution claim under § 1983 when the claim is pr emised on a violation of the F ourth Amendment a re a s follows: 13Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 First, the plaintiff must show that a criminal prosec ution was initiated ag ainst th e plaintiff and that the defendant made, influence d, or part i ci p ated in the decision to pros ecute. Second, beca use a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that ther e wa s a lac k of proba ble ca use for the criminal prosecution. Third, the plaintiff must show that, as a conseque nce of a leg al proce eding , the plaintiff suffe red a depriva tion of liberty , as understood in our Four th Amendment jurisprudenc e, apar t fr o m t he initial seizure. Four th, the criminal proc eeding must have bee n resolved in the pla intiff’s fa vor. Id. at 308-09 (inter

nal quotation marks, citations, and a lterations omitted). Probable cause to initiate a criminal prosec ution exis ts wher e “fa cts and circ umstances [are]

s u fficie nt to lead an ordinarily prudent person to believe the acc used [i s] g uilty of the cr i m e char g ed.” MacD ermid v. Discove r Fin. Servs. , 342 F. App’x 138, 146 (6th Cir. 2009) (interna l quotation marks omitted); see also Cervantes v. Jones , 188 F.3d 805, 811 (7th Cir. 1999) (“Proba ble

cause means the exis tence of such fac ts and circ umstances as would excite the belief, in a rea sonable mind, acting on the fac ts within the knowledg e of the prosec utor, that the person char g ed was g uilty of the crime for which he was prosec uted.” ) (interna l quotation marks omitted), overruled on other grounds by Newsome v. McCabe , 256 F.3d 747, 751 (7th Cir. 2001). As a g ener al rule, “the finding of an indictment, fair upon its fac e, by a proper ly constituted g rand jury , conclusively deter mines the exis tence of probable cause .” Barnes , 449 F.3d at 716. Howeve r, an exception applies “whe re the indictment w as obtained wrong fully by defe ndant police office rs who knowing ly prese nt[ ed] f alse testimony to the g rand jury .” Cook v. McPhe rson , 273 F. App’x 421, 424 (6th Cir. 2008); see also Pee t v. C ity of Detroit , 502 F.3d 557, 566 (6th Cir. 2007) (observing that a judi ci al determination of proba ble ca use has no pr eclusive e ffe ct if a c laim of malicious prosec ution is based on a police office r’s supply ing f

alse infor mation to establish probable c ause)

.

14Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 The district court conclude d that the g rand jury ’s indictment did not establish probable cause for Mott’s arr est beca

use it was based on false testimony by L ucas. The district court observe d that L ucas’ s testimony was based entirely upon unreliable , uncorr oborate d information from Bra y and that sever al of L ucas’ s statements wer e misleading or false. Nonethele ss, the district court held that there was probable cause to prosec ute Mott ba sed on his post-a rre st state ment to inve stiga tors that he was involved in drug traff icking

. There fore , the district court conclude d that Mott did not meet his bur den of producing evidenc e that his c onstitut ional rig ht w as violated and that the de fenda nts

are entitled to qualified immunity as to Mott’s malicious prosecution cla im. M ott first arg ues that the district court err ed by failing to ask whether there wa s p ro b ab l e

cause to prosec ute him for the particular offenses with which he was char g ed. He contends that the probable cause inquiry

differ s in the context of an arr est and in the c ontext of a de cision to charg e

or prosec ute. Mott is corr ect. Whether probable cause exis ts to arr est a suspect is a distinct question from whether probable cause exis ts to prosec ute an acc used. See Syke s , 625 F.3d at 310-11 (“I n order to distinguish appropr iately [t he claim of malicious prosec ution] from one of false arr est, we must consider not only

whether the Def endants ha d probable cause to arre st the Plainti ffs but also whether probable cause exis ted to initiate the criminal proce eding ag ainst the Plaintiffs.”)

. Probable

cause to make an arr est exis ts when “the fac ts and ci rc u m s t an ce s known to the office r war rant a prudent man in believing that an offens e has been committed.” Miller v. Sanilac Cnty. , 606 F.3d 240, 248 (6th Cir. 2010) (internal quotation marks omi tted) (emphasis added)

. Prob ab l e ca u s e to p ro s ec u te exis ts when the fac ts and circ umstances are sufficie nt to lead a rea sonable person t o believe that the acc used committed the particular offense with which he is to be char g ed. See, e.g. , 15Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 McKinley v. City of Mansfield , 404 F.3d 418, 445 (6th Cir. 2 0 0 5 ) (af firming the district court’s dismiss al of the plaintiff’s malicious prosec ution claim beca us e , a t th e time the plaintiff was char g ed, authorities had unchal l en ged evidenc e that the plaintiff committed the crimes of which he was

acc used). I n the district court’s discussion of Mott’s malicious prosec ution claim, it cited Gardenhire

v. Schubert , 205 F.3d 303, 315 (6th Cir. 2000), which discussed probable cause in the contex t of
arrest. The district court conclude d that the defe ndants had probable cause to prosec ute Mott beca use his post-arr est statement provided “re a s o nably trustworthy information sufficie nt to war rant

a prud en t p er s o n in believing that Plaintiff had committed or was committing an offe nse.” The district court observe d that Mott’s post-arr est statement “g ave Def endants rea sonable belief he had committ ed a cr i m e in g ener al, and, specific ally , was in some way involved in the drug trade in Mansfield with individuals from D et ro i t.” The dist rict court err ed by failing to ask whether there was proba

ble ca use to prosec ute Mott for the three spec ific crimes with which he wa s char g ed. Mott also arg ues that his post-arr es t s t at ement could not have provided probable cause to initiate the criminal proce eding ag ainst him. The tort of mali cious prosec ution reme dies the

“‘ wrongful instit ution of leg al proce ss.’” Syke s , 625 F.3d at 308 (quoting W allace , 549 U.S. at 390); Palshook v. Jarrett , 32 F. App’x 732, 735 (6th Cir. 2002) (“The tort of malicious prosec ution makes liable those who actively i n i t i at e and pursue the unwar rante d prosec ution of a plaintiff.”)

. Authorities must have probable cause to initiate a criminal proce eding ag ainst a suspect at the time it is commence d. See Hartman v. Moore , 547 U.S. 250, 258 (2006) (obser ving that in a malicious prosec ution action, “a plaintiff must show that the criminal action was beg un without probable cause 16Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 for char g ing the crime in the first place ”); Syke s , 625 F.3d at 310-11 (looking at “the totality of the circ umstances at the time of the Plaintiffs’ arr est and throug h the time that the criminal proce eding aga i n s t them commence d” to deter mine whether there was probable cause to prosec ute them ). Authorities may

not char g e a suspe ct first and de velop proba ble ca use later

. I n this case , authorities made the decision to char g e Mott and the g rand jury indicted him befor e he spoke with investiga tors. Thus, Mott’s post-arr est statement could not have provided proba b l e ca u s e for the char g es in the g rand jury ’s indictment. This is not to say , howeve r, that Mott’s post-arr est statement could not have supplied probable cause for f uture c harg es. Here, the superse ding indictment, which was issued afte r Mott’s post-arr est statement, char g ed him with the same offenses as the original i ndictment. As we discuss n ex t, there is a genuine issue of m ater ial fac t as to whether the content of Mott’s statement s u p p o rt s t h e char g es in the indictment and superse ding indictment. There fore , the district court clea rly err ed by finding that Mott’s post-arr est statement supplied probable cause for his initial indictment, and it also may have e rre d by

finding that it provided probable cause for the c harg es in the super seding indictment. Mott contends that neither h i s p o s t -a rre st statement nor his May 2006 proff er interview provided probable cause to prosec ute him for the crimes wit h wh i ch h e wa s char g ed. During his post-arr est statement, Mott did not discuss his alleg ed cra ck coca ine sales to Br ay on September 6, 2005 or September 15, 2005. During his pr offe r interview, Mott ex plicitly denied selling drug s to Br ay on those dates. Thus, Mott arg ues that his statements did not provide probable cause for the
two distribution char g es based on these alleg ed drug sales. Simi larly , Mott arg ues that his statements did not demonstrate that he participa ted in the conspirac y to posse ss w ith intent to distribute cra ck 17Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996

coca ine char g ed in Count One of the indictment a nd superse ding indictment. During Mott’s postarr est statement, he admit t ed t o s el l i ng cra ck coca ine in Mansfield for Damadr e Br ooks. During Mott’s proff

er interview, he told investig ators that he sold na rcotics at a house off Diamond Street with Fr eddie Parker or at a trailer park off Ashland Road. Howeve r, neither Br ooks nor Fr eddie P ar k er is a person with whom Mott was acc used of conspiring

. Mott said during his post-arr est statement and proff

er interview that he was familiar with Bur ton, Ward, J ohnie Parker , L ee, Wil l i am s , and Spires, all of whom wer e char g ed as co-c onspirators, and that he purcha sed drug s from some of them. Mott arg ues that while his statements indicate that he knew some of the people involved in the conspirac y , he never admitted to selling drug s with them, much less in the quantities and during the time period a lleg ed in Count One. Be cause the district c ourt failed to a sk whether there was probable cause to prosec ute Mott for the three specific crimes with which he was char g ed, it failed to rec ogn i z e t h at Mott prese nts enoug h evidenc e to establish a g enuine issue of materia l fa ct as to the second element of his malicious prosec ution claim. We may reve rse a district co u rt ’s g rant of qualified immunit y to defe ndants on interlocutory appea l wher e fundame n ta l f a c tu a l d is p u te s p r e c lu de summary judgme nt. See Huck aby v. Priest , 636 F.3d 211, 216-17 (6th Cir. 2011) (re versing the district c ourt’s g rant of summary judgme nt to the def endants whe re the district c ourt improperly interpre ted fac tual issues in the light most favor able to the defe ndants and discounted the plaintiffs’ evidenc e demonstrating

a fac tual dispute). The district court improperly g rante d summary judgme nt to the defe ndants on the g round that Mott could not meet th e s ec o n d element of his claim, and, there fore , we reve rse. Howeve r, we note that Mott must de monstrate a g enuine issue of materia l fac t as to the first, third, 18Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 and fourth elements of a malicious prosec ution claim in orde r t o preva il ag ainst the defe ndants’ qualified immunity

defe nse. We rema

nd to the district c ourt so that it may consider whether Mott demonstrates a g enuine issue of materia l fac t as to all the elements of his claim, there by prec luding a g rant of qua lified immunit y to the defe ndants.

IV. Next , we consider the sole issue that May er a nd Fa ith raise on appe al, which Metca lf also raises. May er, Fa ith, a

nd Metca lf arg ue that the district c ourt eff ectively ruled ag ainst them on the

m er i t s i n t he proce ss of deny ing their motions for summary judgme nt on the basis of qualified immunit y . They point to lang uag e in the opinion “that is strikingly final” and arg ue that the district
court impro p er l y d en i ed them qualified immunit y “as a matter of law.” They contend that “the 6 district court’s fac tual and leg al conclusions eff ectively deny [t hem] the opportunity to challeng e the merits of Mott’s claims, whethe r at trial or in a future motion for summary judgme nt” and that the district court, in eff

ect, enter ed summary judgme nt sua sponte in favor of Mott. Mott ag ree s that the district court “esse ntially enter ed judgme nt” ag ainst the defe ndants but arg ues that the district court did not abuse its discretion by g ranting summary

judgme nt in his favor.

The district court denied L ucas, Fa i t h , an d M et calf qualified immunit y as to Mott’s false 6 arr est claim “as a m at t er of law” and denied Cross qualified immunit y “due to the prese nce of a g enuine issue o f m aterial fac t.” The district court denied L ucas qualified immunit y as to the fabr ication of evidenc e claim “as a matter of law” and denied May er qualified immunit y “due to the prese nce of

a g enuine issue of

materia l fac t.” 19Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 Qualified immunit y “is conce ptually distinct from the merits of the plaintiff’s claim that his rig hts have been violated.” Mitchell v. Forsyth , 472 U.S. 511, 527-28 (1985); Fisher v. Harden , 398 F.3d 837, 842 (6th Cir. 2005). Qualified immunit y “is an immunity from s u i t ra ther than a mere defe nse to liability .” Mitchell , 472 U. S

. at 5 2 6

. I t is “par t [of] an entitlement not to be forc ed to litigate the conseque nces of officia l conduct.” Id. at 527. As a result, “[w]here the defe ndant seeks qualified immunit y , a ruling on that issue should be made ear ly in the proce eding s so that the costs and expenses of trial are avoided wher e the defe nse is dispositive.” Katz , 553 U.S. at 200; Hunter

v. Bryant , 502 U.S

. 2 2 4 , 2 2 7 (1991) (“[W] e repe atedly have stressed the importance of resolving immunit y questions at the ea rl i es t p o s sible stag e in litigation.”)

. When a defe ndant raises the qualified im munity defe nse, t he burden is on the pl ainti ff to demonstrate that the defendant is not entitled to qua lified immunit y by alleg ing fac ts sufficie nt to show that the defe ndant’s act violated clea rly established law at the time that it was committed. Simmonds , 682 F.3d a t 444. “To de fea t the qualified immunit y bar, a plaintiff ‘must prese nt evidenc e sufficie nt to cre ate a g enuine issue as to wheth er the defe ndant commi tted the acts that violated t he law.’” Id. (quoting Adams , 31 F.3d at 386). When the district court considere d the defe ndants’ motions for s u m mary judgme nt on the basis of qualified immunit y , it only neede d to resolve the narr ow i ssue of whe ther Mott prese nted evi d en ce sufficie nt to cre ate a g enuine issue as to whether the defe ndants violated his clea rly established rights. Nonethele ss, some of t h e l ang uag e in the di strict court’s opinion sug g ests that the district court made fac tual finding s and rea ched conclusions o f law with respe ct to Mott’s substantive claims in the process of ruling on qualified im munity

. For exampl e, t he dis trict court 20Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 found in its discussion of Mott’s false arr est claim that both Fa ith and Met ca l f “knew Br ay was unreliable ” and “knew the ex t en t to which the investiga tion relied upon Br ay .” There fore , they “knew the war

rant was based upon false or misleading statements, rende ring the war rant invalid and the arr est based upon that war rant unlawful.” The district court conclude d that “Metc alf and Fa ith unlawfully

arr ested Plaintiff in violation of Plaintiff’s constitutional right.” To the extent that the district court passed judgme nt on the merits of Mott’s claims, this was improper. Prior to discovery , the parties wer e direc ted to file motions for summary judgme nt based

on qualified immunit y alone. Ne i t h er the defe ndants nor Mott soug ht summary judgme nt on the merits of Mott’s claims. At this stag e in the proce eding s, May er, Fa ith, and Metca lf had no burden
to produce evidenc e sufficie nt to disprove Mott’s claims. They simply neede d t o i n v o k e the qualified immunit y defe nse, at which point Mott had the burden of producing evidenc e sufficie nt to

cre ate a g enuine issue of materia l fac t as to w hether the defe ndants violated his c lear ly established rig hts. T h e fac t rema ins, howeve r, that while the district court denied the defe ndants qualified immunit y , it did not enter summary judgme nt in Mo t t ’s fa v o r o n the false arr est or fabr ication of evidenc e claims. Thus, there is no ruling in Mott’s favor for this court to overturn. When the district
court approve d the dismiss al of Mott’s claims ag ainst the fede ral defe ndants, the district court’s last signific ant action in this case , it acknow ledg ed that claims rema in pending ag ainst May er, Fa ith, and Metca lf. Whil e May er, Fa ith, and Metca lf are not entitled to qualified immunit y at this stag e, they may raise this arg ument ag ain in future motions for summary judgme nt or as an aff irmative defe nse at trial. They rema in fre e to attack Mott’s claims on the merits. We aff irm the district court’s denial 21Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 of qualified immunit y to Ma y er, Fa ith, a

nd Metca lf, but we emphasize that, notwithstanding some of the lang uag e in the district court’s opinion, the defe ndants may raise the qualified immunit y defe nse and c ontest their liability as the proc eeding s continue.

V. Finally , we turn to Metc alf’s a rg ument that the evidenc e does not support a finding that he falsely arr ested Mott. Metca lf contends that, am o n g other things: (1) he did not know that L ucas testified falsely befor e th e gra n d j u ry ; (2) he was unawa re of Br ay ’s misconduct; (3) he did not p ar t i ci pate in Br ay ’s alleg ed drug buy from Mott on September 15, 2005; and (4) investiga tor s

corr oborate d Br ay ’s information by monitoring his drug buy s. A defe ndant who appea ls a denial of qualified immunit y “should be prepa red to conce de the best view of the fac ts to the plaintiff and discuss only the leg al issues raised by the case .” Berrym an

v. Rieger , 150 F.3d 561, 564 (6th Cir. 1998). “Onc e a defe ndant’s arg ument drifts from the purely leg al into the fac tual rea lm and beg ins contesting what rea lly happene d, our jurisdiction ends and the

case should proce ed to trial.” Id. at 5 6 4 -65. The district court rec og nized that Mott prese nted

ev i d en ce cre ating a g enuine issue of materia l fac t as to whether Metca lf violated Mott’s cle ar l y established constitutional rig hts. Metca lf ignor es the eviden ce p re s en ted by Mott and instead emphasizes fac ts that he arg ues are favor able to him. We lack jurisdiction to decide fac tual disputes

on interlocutory appea l. Id. There fore , we dismiss Metca lf’s appea l to the extent it is ba sed on an arg ument that the evidenc e does not support a finding of fa lse arr est. 22Mott v. Me tcalf, et al.

Nos. 11-3853, 11-3855, 11- 3996 VI. For t h es e re asons, we reve rse the district court’s g rant of summary judgme nt to the defe ndants as to the m al i ci ous prosec ution claim and rema nd to the district court for further proce eding s. We aff

irm the district court’s den i al o f M ay er’ s and Fa ith’s motions for summary judgme nt on the basis of qualified immunit y . We dismiss Metca lf’s challeng e to the district court’s denial of qua lified immunit y for lac k of jurisdiction.

23