NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0543n.06 No. 12-6163 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J AMES DI L L ON DAWSON, Plaintiff-Appellant,

v. J OHN DO RMAN, individually and in his officia l capa city as a L udlow City Police Offic er; A. WAYNE TURNER, individually

and in his of

ficial c apac ity

as L u d l ow City Chief of Police; and BEN NY J OHNSON, individually and in his officia l capa city as L udlow Assistant Pol ice Chief, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP PEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EAS T ERN DI STRI CT OF KE NTUCKY

BEF ORE: SI L ER, GI BB ONS, and GRI FF I N, Circuit J udg es. GRI FF I N, Circuit J udg e. Police suspected that plaintif f J am es Dawson had robbed Eva Morrow at g unpoint in her home. Dawson was later arr ested and indicted on one count of first-deg ree robber y . The prosec utor dismiss ed the indictment on the eve of trial afte r concluding that the case was in trouble due to witness cre dibilit y issues. Dawson then sued lead investiga tor J ohn Dorman under 42 U.S.C. § 1983 for Four th Amendment false arr est and malicious prosec ution, claiming that Dorman provided false

or misleading information to obtain the arr est war rant, lied during the preliminary examination, and lied ag ain befor e the g rand jury

. Dawson also sued Dorman’ s two supervisors and the city thatNo. 12-6163

Dawson v. Dorman, e t al.

em p l o y ed Do rm an for violations of state and fede ral law. The district court enter ed summary judgme nt in defe ndants’ favor on Dawson’ s fede ral claims and declined to hear his state-law claim. Dawson a ppeale d. Af t er re v i ewing the rec ord, the parties’ briefs, and the applicable law, we conclude that a compre hensive written opinion addre ssing all of the issues raised on appea l would s er v e n o jurisprudential purpose. We there fore aff irm the j u d gm en t larg ely for the rea sons stated in the district court’s opinion. Howeve r, it is appropr iate to note one err or in the district court’s analy sis. Among other alleg ations, Dawson claimed that Dorman committed the constitutional tort of

ma li c io u s p r o s e c u ti o n by delibera tely fabr icating evidenc e to support the robber y char g e and offe ring that evidenc e to the g rand jury

. S ee Syke s v. Anderson , 625 F.3d 294, 308–09 (6th Cir. 2010). 1
Dorman te stified befor e the g rand jury that Dawson’ s latent fing erpr int was found on the shoe box from which $20,000 in c ash wa s stolen, when in fa ct his pr int wa s found, innocently enoug h, on a soda can seized from his brother’ s residenc e. Six index car ds containing fing erpr ints taken from the shoebox, the can, and a drinking g lass, collectively , wer e sent to the lab, along with a form on which Dorman wrote (inac cura tely ) that all six prints wer e lifted from the shoebox. When Dawson’ s prints matched one of the latent prints (the one from the soda can) , it was believed that Dawson’ s print was

After th e p ar t ies filed their appellate briefs, Dorman broug ht to our attention two case s 1 involving the defe nse of abso l u t e immunit y , which potentially applies to Dawson’ s claim. See Rehbe rg v. Paulk , 132 S. Ct. 1497, 1505–07 (2012); Va u g h a n v. C i t y of Shaker Heights , No. 11- 4434, 2013 WL 518443, at *2 (6th Cir. Fe b. 12, 2013). The cases do not help Dorman, howeve r, as he abandone d the defense by not asser ting it befor e us as an a lternative g round for aff irmance

. See M usic v. Arrowood Indem . Co. , 632 F.3d 284, 286 n.1 ( 6th Cir. 2011). - 2 -No. 12-6163

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on the shoebox, thus implicating him in the robber y . Dorman rela

y ed that belief to the g rand jury , which then issued the indictment. I n this lawsuit, Dorman appende d to his s u m m ary judgme nt motion an aff

idavit in which he admitted that his g rand jury testimony was false in this respe ct but claimed he did not know it at the time. He claimed he mistakenly assumed that all six prints were collecte d from the shoebox and did not know the truth as a result of never persona lly examining the index car ds befor e submitt ing them to the lab. (The rec ord does not disclose why Dorman assumed all of the prints ca

me from the shoe box .) Rely ing on his aff

idavit, Dorman arg ued to the district court that his mere negligence cause d the fing erpr i n t m i x up, which in turn cause d him to testify falsely befor e the g rand jury

. Be cause there was no evidence that he ac ted deliber ately or with rec kless disreg ard f or the truth, he a

rg ued that he was entitled to summary judgme nt on Dawson’ s malicious prosec ution claim. See Syke s , 625 F.3d at 312 (citing Gregory v. City of Louisvill e , 444 F.3d 725, 758 (6th Cir. 2006)). Dawson arg ued in r esponse that Dorman knew that some of the lifted prints came from the can and g lass but w rote

on the form that they all came from the shoebox, in order to make the case ag ainst Dawson strong er. The district court cre dited Dorman’ s statement that it was an acc ident an d gra n t ed him summary judgme nt on this claim. Dawson say s this was error, cl ai m i n g that “[t] he Dist rict C ourt balanc ed ‘Dorma n intentionally did this’ on one hand and ‘Dorma n accide ntally did this’ on the other hand,” and ther eby

usurped the jur

y ’s duty to resolve c redibility

disputes. We ag ree . Courts may not resolve cre dibilit y disputes on summary judgme nt. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). This rule of proce dure ty pically applies wher e there is a

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genuine conflict in the evidenc e, with a ffirma tive support on both side s, and wher e the question is which witness to believe. S ee 1 0 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane , F ed eral Practice & Procedure § 2726, at 447 (3d ed. 1998) (“Thus, for example, if co n fl i ct i n g testimony appea

rs in aff idavits and depositions that are filed, summary judgme nt may be inappropria te as the i ssues involved will depend on the credibility of t he witnesses.”); e.g. , Nelms

v. W ellington W

ay Apartments, LLC , No. 11-3404, 2013 WL 408034, at *6 (6th Cir. F eb. 4, 2013) (summary judgme nt inappropria te g iven “diffe ring verba l acc ounts of what transpire d inside the
apar tment”). I n this case , there is no truly “conf licting” evidenc e reg arding Dorman’ s mental state; no evidenc e direc tly ref

utes Dorman’ s testimony that he was simply neg lige nt in his police work. And Dawson cannot survive summary judgme nt simply by stating that a jury could disbelieve Dorman’ s testimony and find instead that he acte d delibera tely

. See Springer v. Durflinger , 518 F.3d 479, 484 (7th Cir. 2008) (“[W] hen challeng es to witness[] cre dibilit y are all that a plaintiff relies on, and he has shown no independe nt fac ts—no proof—to support his c laims, summar y judgme nt in favor of the defe ndant is proper .”). The “prospe ct of challeng ing a witness’[s] cre dibilit y is not alone enoug h
to avoid summary judgme nt.” Dugan v. Smerwick Sewerage Co. , 142 F.3d 398, 406 (7th Cir. 1998); accord TypeRight Keyboard Corp. v. Microsoft Corp. , 374 F.3d 1151, 11 5 8 (Fed. Cir. 2004) (“ S u m m ar y j udg ment should not be denied simply beca use the opposing party asser ts that the movant’s witnesses ar e not to be believe d.”); see also Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986) (explaining that the nonmoving party must “g o bey ond the pleading s” at summary judgme nt).

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But Dawson has some evidenc e supporting his theory reg arding Dorman’ s mental state. I n this respe ct, “summ ary judgme nt is not appropr i at e where t he opposi ng party offe rs s pecif ic facts that call into que stion the credibility of the movant’s witnesses.” TypeRight Keyboard Corp. , 374 F.3d at 1158; see 10A Wright, Miller & K ane, supra , § 2726, at 446 (“Clea rly , if the cre dibilit y of the movant’s witnesses is challeng ed by the opposing party and specific bases for p o s s i ble impeachm ent are shown , summary judgme nt should be denied and the case a llowed to proce ed to trial[.] ” (emphasis added) ). The “specific fac ts” Dawson offe rs here i nvolve Dorman’s history of dishonesty as a police office r, a history that includes dishonesty and fra ud with his former employ er,

curr ent employ er, and an Assistant United States Attorney who asked Dorman on two differen t

occa sions while prepa

ring for trial whether he had any “issues arising from dishonesty ” or a lack of integ rity

. Dorman falsely responde d “no” to the prosec utor’s questions. After lear ning that Dorman had lied, the AUSA dismiss ed the case . Dorman was demoted from detec tive to patrolman during Dawson’ s prosec ution for rea sons a jury could find wer e rela ted to hi s rec ord of dishonesty

. We conclude that this rec ord sufficie ntly establishes a g enuine dispute reg arding Dorman’ s mental state. Howeve r, Dawson does not pr evail on his malicious prosec ution claim simpl y by showing that Dorman delibera tely lied when submitt ing the fing erpr int form and testify ing befor e the g rand jury

. He must also establish that Dorman’ s lies wer e critica l in establishing probable cause and influence d the prosec utor’s decision to proce ed. See Syke s , 625 F.3d at 310–12. He cannot do this in vie w of the othe r evide nce in the c ase, nota bly Eva’s ide ntification. I t makes no differ ence that the prosec utor declined t o o ff er the identification to the g rand jury and relied instead upon the

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fing erpr int e vidence

. Had ther e bee n no fore nsic evidenc e, ther e is no doubt (and a jury could not

rea sonably conclude otherwise) that the prosec utor would have offe red the identification just as he had months ear lier at th e p r e liminary examination and there by established probable cause , see Ahlers

v. Schebil , 188 F.3d 365, 370 (6th Cir. 1999), unless he believed then that Eva’s identification was unreli ab l e. But there is no evidenc e of that. And indeed there is evidenc e that the prosec utor considere d the identification sufficie ntly reliable at the time. When Dorman disclosed the mistake to the prosec utor ( after the g rand jury returne d the indictment), the prosec utor decide d to c ontinue the case nonetheless, in view of Eva’s identification. That the prosec utor later dismiss ed the char g e demonstrates only that he later harbor ed doubts about proving Dawson’ s g uilt bey ond a rea sonable doubt, not that he doubted the re liability of the identification at the g rand- jury stag e. I n the end, the district court’s resolution of a cre dibilit y q u es t i o n ag ainst the non-moving party on summary judgme nt does not require reve rsal, beca use Dorman’ s er ror in submitt ing the form and later testify ing, which a jury could find was delibera te, was not critica l to the deter mination of probable cause and did not influence the prosec utor’s decision to proce ed, two elements essential to Dawson’s c laim. Summ ary judgme nt was appr opriate. AFF I RMED.

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