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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ZACHERY A. PENRICE, 

Plaintiff, 

v. 

CORPORAL DAVID SZOKOLA, of the 

Taylor Police Department, in his 

individual capacity, PATROLMAN 

CHRISTOPHER CATES, of the Taylor 

Police Department, in his individual 

capacity, and PATROLMAN JOSEPH 

SCHNEIDER, of the Taylor Police 

Department, in his individual capacity, 

Defendants. 

 

/ 

Case No. 14-cv-14342 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

MONA K. MAJZOUB

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT [26] 

I. INTRODUCTION

Zachery A. Penrice (“Penrice” or “Plaintiff”) commenced this action on 

November 12, 2014 against Corporal David Szokola, Patrolman Christopher Cates, 

and Patrolman Joseph Schneider (collectively “Defendants”). See Dkt. No. 1. 

Plaintiff contends that Defendants are liable for: (I) Violation of Plaintiff’s 

constitutional rights as guaranteed by the Fourth and Fourteenth Amendments to 

the United States Constitution under 42 U.S.C. § 1983; (II) Assault and Battery; 

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(III) False Arrest/Imprisonment; and (IV) Malicious Prosecution. Id. at 8–11 (Pg. 

ID No. 8–11). 

 On December 4, 2015, Defendants filed a Motion for Summary Judgment on 

all counts. See Dkt. No. 26. The matter is fully briefed. After reviewing the 

briefing, the Court concludes that oral argument will not aid in the resolution of 

this matter. Accordingly, the Court will resolve the Motion on the briefs as 

submitted. See E.D. Mich. L.R. 7.1(f)(2). 

For the reasons discussed below, the Court will GRANT IN PART and 

DENY IN PART the Motion for Summary Judgment. 

II. BACKGROUND

On March 12, 2013, at approximately 4:00 p.m., the Plaintiff was traveling 

southbound, in a rental car, on I-75 from Detroit, Michigan toward Toledo, Ohio. 

Dkt. No. 29 at 5 (Pg. ID No. 248). Plaintiff alleges that he was traveling 

exclusively in the left-most lane. Id. Plaintiff asserts that he was not speeding. A 

police vehicle, driven by Defendant Szokola, maneuvered behind Plaintiff and 

signaled Plaintiff to pull over. Id. In response, Plaintiff asserts that he put on his 

turn signal and began to move toward the right shoulder. Id. Due to the traffic, 

Plaintiff slowed down in order to get across the traffic. Id. 

Eventually, Plaintiff was able to maneuver his vehicle to the far right lane 

and stopped along the right shoulder with Defendant Szokola behind him. Id. at 6 

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(Pg. ID No. 249). Plaintiff asserts that there was limited space due to a large 

retaining wall at that spot. Id. Plaintiff further asserts that he “made eye contact 

with the police officer and motioned by using his left arm to point over his head to 

the right side of the road that he was going to move to a safer spot.” Id. 

Plaintiff proceeded to drive his car and stop at a safer location. Id. Defendant 

Szokola approached the car and requested his name, where he had been, for his 

license and a copy of the car rental agreement. Id. Shortly after, two additional 

patrol cars arrived on the scene, one of which containing Defendants Cates and 

Schneider. Id. Defendants assert that Defendant Szokola had requested back up 

while Plaintiff was maneuvering through traffic toward the right lane. Dkt. No. 26 

at 17–18 (Pg. ID No. 134–35). 

After his backup arrived, Defendant Szokola asked Plaintiff to exit and walk 

to the back of Plaintiff’s car. Dkt. No. 29 at 7 (Pg. ID No. 250). He complied and 

walked to the back of his car where Defendants Cates and Schneider were 

standing. Id. Plaintiff contends that, “[w]ithout warning, Szokola reached into 

Penrice’s coat pocket.” Id. In reaction, Plaintiff claims that he grabbed the top of 

his coat, pulled it tight, and asked Defendant Szokola whether he was supposed to 

tell a person that he is going to search him.1 Id. Plaintiff then put his hands in the 

 

1

 The Defendants testified at their depositions that Plaintiff had grabbed Defendant Szokola’s wrist. 

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air and said “he did not want to hurt anyone and he did not want them to hurt him.” 

Id. 

The police officers then ordered Plaintiff to put his hands on the trunk of his 

car. Id. After Plaintiff complied with the order, Defendant Szokola frisked Plaintiff 

for weapons. Id. Next, Plaintiff was ordered to walk toward the police car. Plaintiff 

alleges that while walking to the police car, “Defendant Cates suddenly announced 

that he was under arrest, shoved him from behind and forced him down on the 

trunk of the car, while Schneider smashed his head down on the car.” Id. at 8 (Pg. 

ID No. 251). Plaintiff alleges that he “suffered bruises and abrasions to his face 

and chest.” Id. 

Plaintiff was arrested and transported to the Taylor police department where 

he was lodged from 7:00 p.m. on March 12, 2013 until his release on March 14, 

2013. Id. While confined, Plaintiff asserts that he was not allowed to make a phone 

call. Id. 

Later, the Taylor police made a request for a warrant. Id. Plaintiff alleges 

that the request “contains many untruthful factual statements, including the 

following: 

(1) that Penrice was weaving in and out of travel on southbound I-75; 

(2) that after Szokola put on his lights, Penrice continued to weave in 

and out of the middle and far right lane; (3) that Penrice threw 

something out of his window before continuing southbound into 

Brownstown township; (4) that Penrice refused to cooperate with the 

officers when he was patted down; (5) that Penrice physically pulled 

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his wrist away from Szokola and advised Szokola not to grab him 

when he was being checked for weapons and contraband; and (6) that 

Penrice attempted to pull away from Cates and Schneider when they 

were in the process of trying to put handcuffs on him with his arms 

behind his back.” 

Id. at 8–9 (Pg. ID No. 252). 

 Plaintiff was charged with fleeing and eluding and assaulting and/or 

resisting arrest. Id. at 9. The preliminary examination was held on March 25, 2013. 

Id. On August 2, 2013, after a two day jury trial, the jury issued a finding of not 

guilty on all counts. Id. 

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall 

be granted if there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s 

Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court 

must view the facts, and draw reasonable inferences from those facts, in the light 

most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). No genuine dispute of material fact exists where the record “taken 

as a whole could not lead a rational trier of fact to find for the non-moving party.” 

Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Ultimately, the court evaluates “whether the evidence presents a sufficient 

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disagreement to require submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

IV. DISCUSSION

A. 42 U.S.C. § 1983 

“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, 

when construed favorably, establish (1) the deprivation of a right secured by the 

Constitution or laws of the United States (2) caused by a person acting under the 

color of state law.” Burley v. Gagacky, 729 F.3d 610, 619 (6th Cir. 2013). There is 

no dispute that the Defendants involved in the present action were acting under the 

color of state law. 

In the complaint, Plaintiff alleges five instances in which his Fourth and 

Fourteenth Amendment rights were violated: 

a. Arresting and falsely imprisoning Plaintiff without probable cause; 

b. Searching the person of the Plaintiff without reasonable suspicion 

and/or probable cause that criminal activity was occurring; 

c. Using excessive and unreasonable force in attacking, restraining 

and arresting the person of Plaintiff, Zachery Penrice; 

d. In prompting the prosecution of Plaintiff for three criminal high 

misdemeanors/felonies without probable cause; 

e. Denying Plaintiff reasonable opportunity to post bond and secure 

his freedom from the aforementioned described illegal 

incarceration and/or in denying Plaintiff the reasonable opportunity 

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to communicate with his family, or an attorney, as to his 

whereabouts following the described illegal incarceration. 

 

Dkt. No. 1 at 8 (Pg. ID No. 8). The Court shall analyze each claim in turn. 

a. Arresting and Falsely Imprisoning Plaintiff Without Probable Cause

Plaintiff alleges two events that resulted in the violation of his constitutional 

rights against unreasonable seizures: (1) being subjected to an unreasonable 

investigatory stop; and (2) being arrested without probable cause. 

i. Defendant Szokola’s Investigatory Stop

Plaintiff argues that his Fourth Amendment rights against unconstitutional 

seizures were violated when he was pulled over by Defendant Szokola. See Dkt. 

No. 29 at 11 (Pg. ID No. 254). This claim would not apply to Defendants Cates 

and Schneider. 

“[A]n officer may seize an individual without offending the Fourth 

amendment if the ‘officer has reasonable suspicion that criminal activity may be 

afoot.’ ” Hoover v. Walsh, 682 F.3d 481, 494 (6th Cir. 2012) (quoting United 

States v. Campbell, 549 F.3d 364, 370 (6th Cir. 2008)). Whether or not an officer 

has the requisite quantum of proof to execute an investigatory stop (“a Terry

stop”), including traffic-stops, is determined by the totality of the circumstances. 

United States v. Galaviz, 645 F.3d 347, 353 (6th Cir. 2011). “Reasonable suspicion 

requires more than a ‘mere hunch,’ but ‘less than probable cause, and falls 

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considerably short of satisfying a preponderance of the evidence standard.’ ” 

Hoover, 682 F.3d at 494 (quoting Campbell, 549 F.3d at 371). “The same Fourth 

Amendment test applies to vehicle stops.” Houston v. Clark County Sheriff Deputy 

John Does 1–5, 174 F.3d 809, 813 (6th Cir. 1999). 

Here, Plaintiff was traveling southbound on I-75 between 60 and 70 miles 

per hour. It is undisputed that Plaintiff was not speeding. The police report states 

that Plaintiff was pulled over for “weaving in and out of traffic.” Dkt. No. 26 

(Exhibit D, p. 4). At the preliminary exam, Defendant Szokola testified that he saw 

Plaintiff “[h]itting the fog line and swerving in and out of his traffic lane.” Dkt. 

No. 29 (Exhibit 6, p. 16). However, Plaintiff claims that he was in the left lane of 

southbound I-75 the entire drive. Dkt. No. 29 at 11 (Pg. ID No. 254); see also id. 

(Penrice Dep., pp. 114–15). 

Both parties agree that after the Plaintiff passed Defendant Szokola on the 

freeway, that Szokola maneuvered his vehicle behind Plaintiff and turned on his 

police lights. Dkt. No. 29 at 5 (Pg. ID No. 248); Dkt. No. 26 at 11 (Pg. ID No. 

128). Plaintiff testified that once Defendant Szokola turned on his lights he 

immediately tried to pull over to the right. Dkt. No. 29 (Penrice Dep., p. 122). 

Under Plaintiff’s version of the facts, Plaintiff had not broken any laws by 

the time Defendant Szokola turned on his police lights. Furthermore, Plaintiff 

attempted to pull over immediately after seeing the lights, and thus had surrendered 

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to the authority of the police officer. At that point he had been seized for a Terry

stop. Terry, 392 U.S. at 19 n.16; see also Albright v. Oliver, 510 U.S. 266, 271 

(1994) (“[H]is surrender to the State’s show of authority constituted a seizure for 

purposes of the Fourth Amendment.”); see also United States v. Stepp, 680 F.3d 

651, 661 (6th Cir. 2012) (“Stopping and detaining a motorist constitutes a seizure 

within the meaning of the Fourth Amendment.”); see also United States v. Bell, 

555 F.3d 535, 539 (6th Cir. 2009). Therefore, a reasonable juror could find that 

Plaintiff had been seized without the requisite “reasonable suspicion” and his 

constitutional right against unreasonable seizures violated. Accordingly, the claim 

against Defendant Szokola survives on this ground. 

ii. Arrest and Imprisonment Without Probable Cause

Plaintiff was arrested for fleeing and eluding. Plaintiff argues that the 

Defendants did not have probable cause to arrest Plaintiff. Dkt. No. 29 at 11 (Pg. 

ID No. 254). “The Supreme Court has defined ‘probable cause’ as the ‘facts and 

circumstances within the officer’s knowledge that are sufficient to warrant a 

prudent person, or one of reasonable caution, in believing, in the circumstances 

shown, that the suspect has committed, is committing, or is about to commit an 

offense.’ ” Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (quoting 

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). “If the circumstances, viewed 

objectively, support a finding of probable cause, the arresting officer’s actual 

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motives are irrelevant.” Id. (citing Scott v. United States, 436 U.S. 128, 138 

(1978)). “The question becomes, viewing the facts in a light most favorable to 

plaintiff, whether the arresting officers were justified in their belief that plaintiff 

had probably committed or was committing a crime.” Id. 

1. Fleeing and Eluding

Under Michigan law, the statute for fleeing and eluding reads: 

An operator of a motor vehicle or vessel who is given by . . . visual or 

audible signal by a police or conservation officer, acting in the lawful 

performance of his or her duty, directing the operator to bring his or 

her motor vehicle or vessel to a stop shall not willfully fail to obey 

that direction by increasing the speed of the vehicle or vessel, 

extinguishing the lights of the vehicle or vessel, or otherwise 

attempting to flee or elude the police or conservation officer. 

MICH. COMP. LAWS § 750.479a. 

 Defendants argue that probable cause was established when Plaintiff decided 

to attempt to get to the right lane of the freeway instead of pulling his car over on 

the left shoulder. Dkt. No. 26 at 16 (Pg. ID No. 133). This argument is not 

persuasive. According to Plaintiff and Defendant Szokola, upon seeing police 

lights, Plaintiff slowed his car down from 70 mph to around 40 mph. Dkt. No. 29 

(Penrice Dep., at p. 123); see also id. (Szokola Dep., at p. 48). Had Plaintiff 

increased his speed, as § 750.479a forbids, there would have been probable cause 

for the fleeing and eluding. However, no reasonable officer would presume that 

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Plaintiff was trying to elude capture by slowing down, using his turn signal, and 

attempting to get into the right shoulder. 

Next, Defendants point to the fact that after Plaintiff pulled over to the right 

shoulder, he decided to move his car further down the freeway. Defendants argue 

that “[t]his, too gave Cpl. Szokola probable cause” for the arrest. Dkt. No. 26 at 16 

(Pg. ID No. 133). However, with the evidence being viewed in the light most 

favorable to the Plaintiff, this argument holds little water. 

According to Plaintiff, “Penrice made eye contact with the police officer and 

motioned by using his left arm to point over his head to the right side of the road 

that he was going to move to a safer spot.” Dkt. No. 29 at 6 (Pg. ID No. 249). 

Plaintiff provides evidence that he received a signal from Defendant Szokola, 

acknowledging that he could proceed: 

Q. So after five seconds you decide to take off and where do you go? 

 

A. Well after I got the head gesture from him and he knew where I was 

going I immediately went past the merging traffic that was coming 

on and I went to the side of the road on the right-hand side. 

 

Dkt. No. 29 (Penrice Dep. at p. 133) (emphasis added). Under this version of the 

facts, probable cause for fleeing and eluding did not exist. 

2. Defendants Cates and Schneider

Defendants argue that the claims against Defendants Cates and Schneider 

should fail as a matter of law. Dkt. No. 26 at 17–18 (Pg. ID No. 133–34). They 

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argue that because Defendants Cates and Schneider “reasonably and justifiably 

relied” on information that came in over the dispatch, as well as information from 

Defendant Szokola, that they had probable cause to arrest Plaintiff. Id. Plaintiff’s 

response brief does not address the actions of Defendants Cates and Schneider. 

Defendants’ brief points to a Seventh Circuit case, United States v. Mounts, 

248 F.3d 712 (7th Cir. 2001), to support their position. However, Mounts is 

distinguishable. In Mounts, the police officers relied on information from dispatch 

in addition to facts available to them at the scene. Id. at 716 (“They knew that 

Mounts had a revoked Illinois driver’s license and the troopers were informed that 

the revocation was still in effect. They also knew that an individual operating a 

motor vehicle with a driver’s license in a revocation status (still in effect) could not 

legally obtain a driver’s license in Texas.”). 

Mounts relies on the Supreme Court case, U.S. v. Hensley, 469 U.S. 221 

(1985). In Hensley, the Court held that the constitutionality of an arrest made in 

reliance on information gained from another officer turns on whether or not the 

informing officer had probable cause to make the arrest himself. Id. at 231 

(“[W]hen evidence is uncovered during a search incident to an arrest in reliance 

merely on a flyer or bulletin, its admissibility turns on whether the officers who 

issued the flyer possessed probable cause to make the arrest.”); see also id. (“We 

conclude that, if a flyer or bulletin has been issued on the basis of articulable facts 

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supporting a reasonable suspicion that the wanted person has committed an 

offense, then reliance on that flyer or bulletin justifies a stop to check 

identification.”). 

Therefore, whether or not Defendants Cates and Schneider had probable 

cause to make an arrest in reliance on the word of Officer Szokola is dependent 

upon Szokola himself having probable cause to arrest at the time the word was 

given. As stated above, when viewed in the light most favorable to Plaintiff, 

Officer Szokola did not have probable cause to arrest Plaintiff for fleeing and 

eluding. Accordingly, Officers Cates and Schneider also lacked probable cause to 

make an arrest at the time they were informed on their dispatch radio. 

3. Grabbing Defendant Szokola’s Wrist 

Before the arrest was made, Defendants assert that the Plaintiff grabbed 

Defendant Szokola’s wrist during an attempted pat-down. See Dkt. No. 29 (Exhibit 

5, p. 45); see also id. (Schneider Dep. at p.42). Plaintiff denies this claim. See Dkt. 

No. 29 at 15 (Pg. ID No. 258) (“He had no weapons and was not threatening any of 

the officers. He did not strike an officer. At most, he flinched when Szokola 

grabbed his penis without warning.”). If Plaintiff in fact did grab the officer’s 

wrist, then at that point, Defendants would have had probable cause to make an 

arrest for battering an officer performing his or her duties. MICH. COMP. LAWS § 

750.479(1)(a). 

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Under Michigan law, a person shall not knowingly and willfully do any of 

the following: 

Assault, batter, wound, obstruct, or endanger a medical examiner, 

township treasurer, judge, magistrate, probation officer, parole officer, 

prosecutor, city attorney, court employee, court officer, or other 

officer or duly authorized person serving or attempting to serve or 

execute any process, rule, or order made or issued by lawful authority 

or otherwise acting in the performance of his or her duties. 

MICH. COMP. LAWS § 750.479(1)(a). “[T]he statute is ‘intended to protect police 

officers engaged in ordinary police functions, including those that do not directly 

involve placing a person under arrest.’ ” People v. Green, 260 Mich. App. 392, 401 

(2004) overruled on other grounds by People v. Anstey, 476 Mich. 436 (2006) 

(quoting People v. Wess, 235 Mich. App. 241, 243 (1999)). 

Here, the arrest was made for fleeing and eluding, not for battery of a police 

officer. However, for a claim of false arrest, this does not matter. The motivations 

of the arresting officer are not relevant. Devenpeck v. Alford, 543 U.S. 146, 154–55 

(2004) (“Subjective intent of the arresting officer, however it is determined (and of 

course subjective intent is always determined by objective means), is simply no 

basis for invalidating an arrest.”); see also Holmes v. Village of Hoffman Estate, 

511 F.3d 673, 682 (7th Cir. 2007) (“[P]robable cause to believe that a person has 

committed any crime will preclude a false arrest claim, even if the person was 

arrested on additional or different charges for which there was no probable 

cause.”). Furthermore, it does not matter that the Terry stop may have been invalid. 

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As the Sixth Circuit has noted, “the ‘fruit of the poisonous tree’ doctrine . . . cannot 

apply in this context to prevent officers from arresting those who commit crimes 

during an unconstitutional search, seizure, or interrogation. If the doctrine did 

cover such situations, an individual who is unconstitutionally seized would have 

license to commit any offense he or she desired and could not be arrested for it.” 

Feathers, 319 F.3d at 852 n.2. 

However, because there is a dispute of material fact over this fact, summary 

judgment may not be granted on this ground. Accordingly, the claim for false 

arrest survives.

b. Searching the Person of the Plaintiff Without Reasonable Suspicion 

and/or Probable Cause that Criminal Activity was Occurring

Plaintiff next argues that he was subjected to an illegal “stop-and-frisk.” Dkt. 

No. 29 at 13 (Pg. ID No. 256). Defendants argue that the pat down was in fact a 

search incident to an arrest that “may be conducted whether or not the arrest has 

been made at the time the search is conducted.” Dkt. No. 31 at 5 (Pg. ID No. 471). 

As support, Defendants rely on People v. Champion, 452 Mich. 92, 549 N.W.2d 

849 (1996). 

“A search conducted immediately before an arrest may be justified as 

incident to arrest if the police have probable cause to arrest the suspect before 

conducting the search.” Champion, 452 Mich. at 115 (citing Rawlings v. Kentucky, 

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448 U.S. 98, 100 (1980)). As stated above, under Plaintiff’s version of the facts, at 

the time Defendant Szokola pulled over Plaintiff, probable cause did not yet exist 

for the arrest. Therefore, any attempt to conduct a search incident to an arrest 

within the meaning of the Fourth Amendment at that time would have been 

invalid. Accordingly, this claim survives the motion as well. 

c. Excessive Force

Plaintiff also argues that Defendants used excessive force when effectuating 

the arrest by unnecessarily forcing him against the car and forcibly pushing his 

head onto the trunk of the vehicle. 

The validity of excessive force claims brought under § 1983 is not governed 

by a single generic standard; rather, the Court must identify a specific 

constitutional right allegedly infringed, and then judge the claim by reference to 

the specific constitutional standard which governs that right. Graham v. Connor, 

490 U.S. 386, 394 (1989). “Where, as here, the excessive force claim arises in the 

context of an arrest or investigatory stop of a free citizen, it is most properly 

characterized as one invoking the protections of the Fourth Amendment, which 

guarantees citizens the right ‘to be secure in their persons . . . against unreasonable 

. . . seizures’ of the person.” Id. “Determining whether the force used to effect a 

particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful 

balancing of ‘the nature and quality of the intrusion on the individual’s Fourth 

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Amendment interests’ against the countervailing governmental interests at stake.” 

Id. at 395 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). 

The “reasonableness” of a particular use of force must be judged from the 

perspective of a reasonable officer on the scene, rather than with the 20/20 vision 

of hindsight. See Terry, 392 U.S. at 20–22. “With respect to a claim of excessive 

force, the same standard of reasonableness at the moment applies: ‘Not every push 

or shove, even if it may later seem unnecessary in the peace of a judge’s 

chambers,’ violates the Fourth Amendment.” Graham, 490 U.S. at 396. “[T]he 

question is whether the officers’ actions are ‘objectively reasonable’ in light of the 

facts and circumstances confronting them, without regard to their underlying intent 

or motivation.” Id. at 397. “Courts evaluating the reasonableness of force used 

should pay particular attention to ‘the severity of the crime at issue, whether the 

suspect poses an immediate threat to the safety of the officers or others, and 

whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” 

Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (quoting Graham, 490 U.S. at 

396.). 

Here, Plaintiff was stopped for a lane violation and fleeing and eluding (after 

voluntarily stopping for the police officer twice). Defendants had already frisked 

the Plaintiff prior to arresting him, therefore they knew that he was not carrying 

any weapons. Furthermore, according to Plaintiff, Plaintiff was fully compliant 

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with the officers. There is no indication that Plaintiff tried to flee during the course 

of the arrest. 

If Plaintiff had been fully compliant, as he has evidenced, then the act of 

shoving and slamming Plaintiff’s face against the trunk of a car would have been 

unreasonable. To hold otherwise would be to grant police officers the ability to 

arrest any suspect in the same fashion, no matter what the underlying 

circumstances may be at the moment. Therefore, at the very least, there is a 

genuine issue of material fact as to the reasonableness of the force used during the 

course of the arrest. Accordingly, excessive force claim survives the motion. 

Defendants argue that Dunigan v. Noble, 390 F.3d 486 (6th Cir. 2004) 

should govern. However, Dunigan is distinguishable. In Dunigan, several police 

officers, accompanied by a police dog, entered a home in an attempt to find a 

fugitive. Id. at 489. During the midst of the search, one of the police officers 

pushed past the Plaintiff, who was standing in his path. Id. After the police officer 

pushed the Plaintiff, the police dog bit the Plaintiff three times. Id. The Sixth 

Circuit characterized the scene as “a rapidly-evolving, highly-volatile situation 

which precluded the luxury of calm and reflective pre-response deliberation.” Id. at 

494. 

At the time the push occurred, Officer Noble’s focus was on Quincy 

Dunigan. Officer Noble knew (1) Quincy had been a fugitive from the 

law for nearly a year and might attempt to flee, (2) at least one 

unidentified individual was in the basement directly below, and (3) 

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that individual posed a potential threat by refusing to show his hands 

as ordered. Moreover, Officer Noble did not have cover on his back 

side and did not know who else was in the home. He could not see 

into the basement from his location on the kitchen stairs. Amidst all 

these uncertainties, Officer Noble applied force to Plaintiff’s back or 

shoulder in closely confined quarters causing her to momentarily lose 

her balance and stumble down one step of stairs towards Kojak. 

Dunigan, 390 F.3d at 494 (citations omitted). The police officer involved in 

Dunigan did not intend for the dog to bite the Plaintiff, nor were they even 

arresting the Plaintiff in that case. Id. (“Officer Noble stated without contradiction 

that he did not call for a police dog, is not trained in handling police dogs, and does 

not know their commands.”). 

 Here, there were three police officers and only one civilian at the scene. 

There was neither a police dog, nor any other potential threats. Defendants knew 

that Plaintiff was unarmed, and his hands were in plain sight at all times. For 

Defendants to characterize Dunigan as “less chaotic” than the present case is at 

best a stretch, and at worst purely disingenuous. Dkt. No. 26 at 21 (Pg. ID No. 

138). 

d. Malicious Prosecution

Defendants have also moved for the dismissal of Plaintiff’s malicious 

prosecution claim. To succeed on a malicious prosecution claim under § 1983 

when the claim is premised on a violation of the Fourth Amendment, a plaintiff 

must prove the following: (1) the plaintiff must show that a criminal prosecution 

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was initiated against the plaintiff and that the defendant made, influenced, or 

participated in the decision to prosecute; (2) because a § 1983 claim is premised on 

the violation of a constitutional right, the plaintiff must show that there was a lack 

of probable cause for the criminal prosecution; (3) the plaintiff must show that, as a 

consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty, as 

understood in our Fourth Amendment jurisprudence, apart from the initial seizure; 

and (4) the criminal proceeding must have been resolved in the plaintiff’s favor. 

Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010). The fact that Plaintiff 

was deprived of his liberty and that the criminal proceeding was resolved in his 

favor is not in dispute. “This circuit has never required that a plaintiff demonstrate 

‘malice’ in order to prevail on a Fourth Amendment claim for malicious 

prosecution.” Id. at 309.

i. Role in the Decision to Prosecute

Defendants principally argue that “there is no evidence that any or all of the 

Defendants acted maliciously or initiated the criminal prosecution against Plaintiff 

as the prosecutor issued the charges after the report was submitted by Cpl. 

Michowski to the prosecutor’s office.” Dkt. No. 26 at 18–19 (Pg. ID No. 135–36). 

As stated above, a showing of ‘malice’ is (ironically) not required to prove 

malicious prosecution. Furthermore, as the Sykes Court noted, “the fact that 

[Defendants] did not make the decision to prosecute does not per se absolve them 

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from liability. Instead, the [Plaintiff is] entitled to prove that the Defendants either 

‘influenced or participated in the decision to prosecute.’ ” Sykes, 625 F.3d at 311 

(citing Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)). In other words, if the 

police officers were a proximate cause of the prosecution, then this element is 

satisfied. Id. at 313–15 (“And holding Sgt. Anderson liable for all reasonably 

foreseeable consequences of his initial misdeeds finds support in the Supreme 

Court’s decision in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L. Ed. 2d 

271 (1986).”). 

1. Defendant Szokola

When a police officer testifies at a preliminary hearing, if a reasonable jury 

could conclude that the officer testified falsely, and that the statements were 

material to the state court’s finding of probable cause, then the first element of 

malicious prosecution has been satisfied. Id. at 312. 

Defendant Szokola testified at the March 23, 2013 preliminary hearing. 

There, Defendant Szokola made several assertions: 

Q: And the vehicle made a lane violation? 

 

A: Yeah, it was weaving in and out of its lane. 

... 

A: I pulled out on the vehicle. I activated my overhead lights to stop 

the vehicle. 

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Q: And did the vehicle stop? 

A: No, it did not. 

Q: Okay. So what did you do then? 

A: I continued southbound about two—two and a half car lengths 

behind the vehicle with my lights on, used my air horn on several 

occasions. I continued approximately two miles, actually into the 

city of Brownstown, and then the vehicle pulled over. 

. . . 

Q: Okay. What was the tone of his voice? 

A: It was brash and confrontational. 

Q: Okay. Okay. 

A: At which time I returned to the vehicle based on the fact that I 

already had enough to remove him from the vehicle for not 

stopping the vehicle. I do like to have a history if I believe a crime 

is afoot, which I did. 

Q: And what crime did you believe was afoot? 

A: Fleeing and eluding at that point for not stopping, -- 

Q: Okay. 

A: --which could lead to a whole number of different things, whether 

someone, you know, be in possession of narcotics or have warrants 

for their arrest, or whatnot. 

 

Dkt. No. 29 (Exhibit 5, pp. 7–11). Based on the evidence in the instant case, a 

reasonable jury could have concluded that Defendant Szokola testified falsely at 

the preliminary hearing and that his statements were material to the state court’s 

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finding of probable cause. Therefore, the malicious prosecution claim in regards to 

Defendant Szokola survives.

2. Defendants Cates and Schneider

Plaintiff has not provided similar evidence for Defendants Cates and 

Schneider. Therefore, Plaintiff has not met his burden of proving that Defendants 

Cates and Schneider initiated, participated in, or influenced the decision to 

prosecute. Accordingly, the Fourth Amendment malicious prosecution claims 

against these two Defendants must be dismissed.

ii. Lack of Probable Cause

Defendants also argue that they did have probable cause to arrest the 

Plaintiff. However, as stated above, the question of whether or not probable cause 

existed should be submitted to a jury. Accordingly, the malicious prosecution 

claim against Defendant Szokola should also go to a jury.

e. Denying Reasonable Opportunity to Post Bond

Neither party has briefed this issue. Defendants did not move for its 

dismissal, and accordingly, Plaintiff has not provided evidence of the claim’s 

validity. The Court, therefore, shall treat this as if it is still a viable claim. 

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B. Qualified Immunity 

Defendants argue that they are entitled to qualified immunity against the § 

1983 claims. Dkt. No. 26 at 22 (Pg. ID No. 139). 

To defeat the defense of qualified immunity, “Plaintiff[] bear[s] the burden 

of showing that a clearly established right has been violated and that the official’s 

conduct caused that violation.” Essex v. County, 518 Fed. Appx. 351, 357 (6th Cir. 

2013); see also, Pearson v. Callahan, 555 U.S. 223, 232 (2009). 

Under Plaintiff’s version of the facts, there were several constitutional 

violations: (1) the illegal Terry stop; (2) the illegal stop-and-frisk; (3) the use of 

excessive force; and, as to Defendant Szokola, (4) the malicious prosecution. The 

lone remaining inquiry is whether or not the Defendants violated clearly 

established law. 

An officer is entitled to qualified immunity where “clearly established law 

does not show that the [action] violated the Fourth Amendment.” Pearson, 555 

U.S. at 243–44. “This inquiry turns on the ‘objective legal reasonableness of the 

action, assessed in light of the legal rules that were clearly established at the time it 

was taken.’ ” Id. (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). 

The right to be free of an unreasonable investigatory stop was clearly 

established in Terry. The right to be free of an unreasonable stop-and-frisk was 

clearly established in Arizona v. Johnson. The right to be free of excessive force 

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was clearly established in Graham as well as in Byrne v. Bero, No. 13-15118, 2015 

WL 3476956 (E.D. Mich., June 2, 2015) (finding that taking the Plaintiff to the 

ground was excessive when the Graham factors weighed in Plaintiff’s favor). And 

the right to be free from a malicious prosecution was clearly established in Sykes. 

The applicability of qualified immunity with regard to these claims thus 

solely turns on the facts that the jury chooses to accept, and therefore the 

Defendants are not entitled to qualified immunity at this time. Pouillon v. City of 

Owosso, 206 F.3d 711, 715 (6th Cir. 2000). 

C. State Claims Under Michigan Constitution 

Defendants argue that the claims under the Michigan Constitution must be 

dismissed because “there is no inferred ‘damage remedy for a violation of the 

Michigan Constitution in an action against a municipality or an individual 

government employee.’ ” Dkt. No. 26 at 25 (Pg. ID No. 142) (quoting Jones v. 

Powell, 462 Mich. 329, 335 (2000)). 

State constitutional claims such as Plaintiff’s are recognized only if there are 

no other available remedies. Jones, 462 Mich. at 335. Plaintiff has validly brought 

suit under 42 U.S.C. § 1983, therefore the state constitutional claims should be 

dismissed. 

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D. State Claims of Assault and Battery, False Arrest/Imprisonment and 

Malicious Prosecution 

Plaintiff also filed state law claims for assault and battery, false arrest and 

malicious prosecution. See Dkt. No. 1. Defendants move for the dismissal of these 

claims.

a. Assault and Battery

“Under Michigan law, an individual may bring an assault and battery claim 

against officers who use[] more force than reasonably necessary in effecting an 

arrest, and actions which would normally constitute intentional torts are protected 

by governmental immunity only if those actions are justified.” Lawler v. City of 

Taylor, 268 Fed. Appx. 384, 388 (6th Cir. 2008) (quotations omitted). As was the 

case in Lawler, triable issues of fact exist over whether Defendants used 

“objectively unreasonable force.” Id. Therefore, the state law claim for assault and 

battery survives summary judgment. 

b. False Arrest and False Imprisonment

Under Michigan law, “[t]o prevail on a claim of false arrest or false 

imprisonment, a plaintiff must show that the arrest was not legal, i.e., the arrest 

was not based on probable cause.” Peterson Novelties, Inc. v. City of Berkley, 259 

Mich. App. 1, 18 (2003). As stated above, the determination of probable cause 

should be submitted to a jury. Accordingly, this claim as well must go forward.

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c. Malicious Prosecution

Under Michigan law, for a malicious prosecution claim, “[t]he plaintiff has 

the burden of proving (1) that the defendant has initiated a criminal prosecution 

against him, (2) that the criminal proceedings were terminated in his favor, (3) that 

the private person who instituted or maintained the prosecution lacked probable 

cause for his actions, and (4) that the action was undertaken with malice or a 

purpose in instituting the criminal claim other than bringing the offender to 

justice.” Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 378 

(1998). The fact that the criminal proceeding was terminated in Plaintiff’s favor is 

not in dispute. 

i. Initiation of the Criminal Proceedings

When dealing with malicious prosecution claims against police officers, the 

Michigan courts have distilled this element to a single rule: “[T]he only situation in 

which an action for malicious prosecution would properly lie is where a police 

officer knowingly swears to false facts in a complaint, without which there is no 

probable cause.” Belt v. Ritter, 18 Mich. App. 495, 503 (1969). “It is well settled 

that one who makes a full and fair disclosure to the prosecutor is not subject to an 

action for malicious prosecution.” Payton v. City of Detroit, 211 Mich. App. 375, 

395 (1995). 

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As state above, a reasonable jury could conclude that Defendant Szokola 

was not entirely truthful in his statements made at his preliminary hearing. Those 

same statements were included in Defendant Szokola’s incident report. See Dkt. 

No. 26 (Exhibit D). Thus, the analysis, as it pertains to Defendant Szokola, 

proceeds to the next step. However, there is no evidence in the record that 

Defendants Cates and Schneider also swore to false testimony. Therefore, the 

malicious prosecution claim against Defendants Cates and Schneider fail. 

ii. Lack of Probable Cause and Malice

As stated above, the question of probable cause should be submitted to a 

jury. Furthermore, it is well settled that a jury may infer malice upon a finding of 

probable cause. Flones v. Dalman, 199 Mich. App. 396, 405 (1993) (“The jury 

concluded that probable cause was lacking, and was permitted to infer malice from 

that conclusion.”). Therefore, the question of malice is for the jury as well. 

Accordingly, the claim against Defendant Szokola will survive. 

E. Governmental Immunity Under State Law 

Finally, Defendants argue that they are entitled to governmental immunity 

on the state law claims. The standard for governmental immunity is different 

depending on the type of tort alleged. Here, Plaintiff has pled intentional torts. 

“[T]o be immune from liability for intentional torts, the governmental 

employee must first establish that the acts were taken ‘during the course of . . . 

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employment’ and that the employee was ‘acting, or reasonably believe[d] [he was] 

acting, within the scope of [his] authority[.]’ ” Odom v. Wayne Cty., 482 Mich. 

459, 473 (2008) (quoting Ross v. Consumers Power Co., 420 Mich. 567, 633 

(1984)). “The governmental employee must also establish that he was acting in 

good faith.” Id. “[T]here is no immunity when the governmental employee acts 

maliciously or with a wanton reckless disregard of the rights of another.” Id. at 

474. Furthermore, the acts involved must be discretionary, not ministerial. Id. at 

476. The burden is on the government to prove every element in order to be 

granted immunity. 

The claims of false arrest, false imprisonment, and assault and battery all 

stem from the discretionary function of Defendants’ responsibilities as police 

officers arising during the course of their employment. Id. Thus, satisfying two of 

the three elements. Whether or not the Defendants’ acts were taken in good faith, 

or were not undertaken with malice, is (as described above) a question of intent for 

the jury. Id. at 482. Therefore, immunity should not be granted yet. 

V. CONCLUSION

For the reasons discussed herein, 

IT IS ORDERED that Defendants’ Motion for Summary Judgment [26] with 

regard to Plaintiff’s state constitutional claims is GRANTED. 

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IT IS FURTHER ORDERED that Defendants’ Motion for Summary 

Judgment with regard to Plaintiff’s malicious prosecutions claims, both federal and 

state, against Defendants Cates and Schneider, is GRANTED. 

IT IS FURTHER ORDERED that Defendants’ Motion for Summary 

Judgment with regard to all of Plaintiff’s remaining claims is DENIED. 

Dated: February 4, 2016 /s/Gershwin A Drain 

Detroit, MI HON. GERSHWIN A. DRAIN 

 United States District Court Judge

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