NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0296n.06 No. 08-3319 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

J OHN WYSONG, Pla int if f- Ap pe lla nt,

v. CI TY OF HEATH; SCOTT I NGERSOL L , CHI EF O F POL I CE; BRUCE R AM AGE, OF FI CER; S TEVE CO UL TE R, SE RG EA

NT ; JAI ME E CO UL TE R, PAT RO L M A

N ; M A RK

PH I L L I PS , PA T RO L M A N, APRI LMARTI

N, PATROL MAN, De fe nd ants -A

pp e lle e s. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL F ROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E SO UT HE RN D IS T R IC T O F O H IO

B EF OR E: GI B B ON S, RO GE RS, a nd KE TH L ED GE , Ci rc uit

Judg e s. ROGERS, Ci rcuit J u d ge. J ohn Wy song appea ls the district court’s g rant of summar y jud g me nt t o d e fe nd ant po lic e of fi c e rs B ru c e Rama g e and Jaim e e Cou lte r. Wy so ngbr ou g ht s uit ag ainst the City

of He ath and se vera l city

officia ls, including Ramag e and Coulter, a fter Wy song was char g ed with disorder ly

conduct for actions that he claims wer e involuntary due to a diabetic se izure. Th e dis tr ic t c ourt

g ra nte d s umm ary

jud g me nt to the de fe nd ants on Wy so ng ’s state and

fe de ra l c la ims of fa lse arr est and m ali cious prosec ution, and Wy song appea led those dete rminations after the district court issued a f

inal order dismiss ing the case . Be cause Wy song ’s initial ar rest was supporte d by probable cause , bec au s e there is no evidenc e in the re cord that the police off icer s supplied theNo. 08-3319

W y so ng v . Ci ty of H e ath

- 2 - prosec utor with any

false or misleading information, and because the officers are entitled to qualified immunit y on all of Wy song ’s claims that ar e the subjec t of this appeal, we aff irm. On J uly 13, 2 0 0 2 , Of

fi cer Ramag e wa s leavinga Kr og er store on an unre lated complaint when he was a

pproac hed b y two women who c omplained that a man in a white truck ha d been kicking the window of his t ru ck an d making lewd g estures a nd obscene comments to them. That man was John W y song , and while Ramag e wa s talking to the w omen, he obse rved Wy song leave the t ru ck an d walk towards the Krog er. A fter c alling in the c omplaint and reque sting ba ckup, R am age ap p ro ac h edW y s o n g, wh o ap p ea re d t o b e s t agge ri n g, an d as k ed t o s p ea k wi t h h i m . R am age asked Wy song if that was his truc k, and Wy song answe red, “ What truck? ” When Ramag e pointed to the truck Wy song had just left, Wy song answe red, “ Whose truck? ” Af t er t h e ex ch an ge, W y s o n g fl edfr o m R am age t o wa rd s t h e r o ad

. R am age ch as edW y s o n g, y e lle d a t him to sto p, and the n y e lle d, “ Yo u’ re un de r arr e st. ” Af te r ru nn ing a bo ut 20 to 30 y ards, Ramag e ca

ug ht Wy song and for ced him to t he g round by striking him in the shoulder. As Wy song fell, Off icer J ai m ee Coult er a

rrived at the scene in response to Ramag e’s initial call for backup. Wit h Coulter’s assis tance , Ramag e attempted to g et control of W y song ’s hands in order to handcuf

f him . O ne of

the wo me n w ho ha d ini tia lly re po rt e d Wy so ngc la ime d th a t he c on tin ue d to str ug g le with t he off

icer s, and both Ramag e and Coulter c laimed that they wer e kicke d by

Wy song . Two more off icer s eventua lly

arr ived and the of

fice rs wer e able to handcuf f Wy song , but he continued to strugg le as the of

fice rs led him to a police c ar.No. 08-3319

W y so ng v . Ci ty of H e ath

- 3 - Wy song claims that he ha s no memory from the time he pulled into the Krog er pa rking lot until he was inside the police c ar. O nce in the c ar, Wy song beg an to ca lm down and he informed one of the office rs t hat he was a diabetic. The officer s then contac ted emer g ency medical pe rsonnel and instructed pa

rame dics to meet the off

icer s and Wy song at the police station, which wa s less than a mile awa

y from the Kr og er. Coulter stated in her de position t hat Wy song was at times cooperative and that Wy song said in the police c ar that he was not g oing to c ause any more proble ms, but at the station he ag ain bec ame unc ooperative. The pa rame dics treated Wy song wi t h o ra l g lucose a nd indicated that he shoul d be taken to the hos pital. Ramag e ac companied Wy song to the hospital and rele ased him on a pe rsonal re cog nizance bond. L ater that day , Ramag e pre pare d an incident rep o rt stating that Wy song had bee n char g ed with disorderly

conduct, obstruc ting of

ficial business, and r esisting ar re s t

. The re port stated that Wy song first indicated that he was diabetic after he was handcuff ed and pla ced in the police car , and the re port also stated that pa rame dics at the station had a dvised police t h at Wy song ’s blood sug ar was low. Ramag e indicate d that he ac companied Wy song to the hospital, where he wa s relea sed. Offic er Coulter pr epar ed a supple ment al s t at ement. He r ver sion of events wa s consistent with Ramag e’ s , b u t s h e also wr ote that the off icer s were only

able to handc uff Wy song afte r threatening to use mace

. She stated that one of the late-a rriving office rs g rabbe d Coulter’s mace can, p u ti td i r e c t l y i n f

r o n t o f W ys o n g ’ s f

a c e , an d t o l d W ys o n g h e w o u l d b e m a c e d i f h e d i d n o tc o mp l y. Coulter stated that Wy song immediately compli ed af

ter the thre at. She also re ported that the para medics stated that Wy song ’s blood sug ar le vel was 48 a nd “that [W y song ’s behavior] seemedNo. 08-3319

W y so ng v . Ci ty of H e ath

- 4 - consistent with that of a diabetic with low [bl ood] sug ar, but they too were confuse d as to how Mr. Wy son g had bec ome rather lucid prior to being treated.” Coulter picke d up Ramag e fr om the hospital, w here she hear d Wy song ask Ramag e sever al times if the char g es would be dismissed and Ramag e re spond that the deter mination would be made by a prose cutor. At the time of Wy song ’s arrest, C ity of Heath Prosecutor Harve y Shapiro was on va cation i n F l o r i d a . S h a

p i r o c o u l d n o t r e c a l l w h e t h e r h e r e c e i v e d a c a l l c o n c e r n i n g W ys o n g ’ s c a s e t h a td ay, but he assumed based on custom that he would have rec eived a call telli ng him that he would rec eive

an email or fax r eg arding the case , and he did re call spea king w ith somebody

from his offic e about the c a se be fo re he le ft

F lor ida . Sh api ro als o recalle d r e c e ivi ngthe po lic e re po rt s and the wi tne ss statements, but he st ated that he could not initially rec all whether the information he ha d rec eived included a r eport fr om the emer g ency room doctor or

the par amedics w ho treated Wy song . L ater in h is d e po sit ion

Sha pir o s tate d th a t he mus t hav e se e n th e pa ra me dic s’ re po rt

a t so me po int

be c a us e he tho ug ht h e re me mbe re d d e ta ils a bo ut a pa ra me dic ’s be ingsurp ri se d th a t W y so ng wa s a ble to

rec all parts of th e si tuation. Shapiro testified that at some point prior to leavingFlorida he

a uth or ize d a

n a sso c iate fr om h is o ff

ic e to p re pa

re a c omp la int

a g a ins t Wy so ng . Alth ou g h h e c ou ld not remembe r doing so, Shapiro knows that he a uthorized the char g e beca use it was eve ntually

filed

an d o n l y h e c o u l d d et erm i n e w h et h er

a c h ar ge w o u l d

b e f i l ed

. S h ap i ro d ec i d ed n o t t o fi l e ach ar ge fo r ob str uc tin g of fi c ia l bu sin e ss or re sis tin g arr e st, a lth ou g h Ra ma g e ’s re po rt

c ha rg e d Wy so ngwi th those offe nses. While Shapiro w as considering char g es ag ainst Wy song , Shapiro neve r spoke to any City of He ath police of

fice r about the c ase. A fter f iling c h arge s, Shapiro decide d to dismi ss theNo. 08-3319

W y so ng v . Ci ty of H e ath

- 5 - char g e af ter de termining that the i ntere sts of t he C ity of Heath and the interests of just ice would not be ser ved by continued prose cution. Wy song then broug ht s u i t aga i n s t the City of He ath and se vera l city employ ees, inc luding Rama g e and Cou lte r. Wy so ng a lle g e d a § 19 83 c la im fo r ar re st a nd pr os e c uti on

wi tho ut p ro ba

ble

c a us e and us e of e xce ssi ve fo rc e in vio latio n o f t he F ourt h A me ndme nt; de lib e ra

te ind if fe re nc e to

se ri ou s me dic a l ne e ds in vio latio n of the F ourt e e nth Am e ndme nt; a state law c la im fo r f a lse arr e st;

a state law c la im f

or ma lic iou s pr os e c uti on a g a ins t Of fi c e r Rama g e , and

mun ic ipa l li a

bil ity a g a ins t the City of He ath. T h e parties f

iled cross-motions for summar y judgme nt, and the cour

t denied Wy song ’s mo t i o n wh i l e granting the de fenda nts’ motion in part and denying in pa rt. The district court g rante d summary

judgme nt for the de fenda nts on the false a

rre st and malicious prosec ution claims under state and federa l law, and that de cision is now the subject of this appe al. The pa rties continued to litigate the re maining c laims in the case involving excessive for ce u n t i l t h is court de te rm ine d o n inte rl oc uto ry a pp e a l tha t th e de fe nd ants we re e nti tle d to qu a lif ie d im mun ity

on tho se claims. W

y so ng v . Ci ty of H e ath , 260 Fe d. App’x 848 (6th Ci r. 2008). In response to this court’s order , the district court issued a n order closing the ca s e. Wy song then timely appea led the fina l order , challeng ing the district court’s initial partial gra nt of sum mary judgme nt to the defe ndants on Wy song ’s fa lse arr est and malicious prose cution claims under f eder al and state law. Rama g e and

Cou lte r w e re e nti tle d to summa ry jud g me nt o n Wy so ng ’s c on sti tut ion a l c la im of fa lse arr est bec ause the re exis ted a probability of criminal activity when Ramag e ar rested Wy song

and be c a us e the of fi c e rs are e nti tle d to qua lif ie d im mun ity . Wy so ngc on c e de s th a t hi s in iti a l arr e stNo. 08-3319

W y so ng v . Ci ty of H e ath

- 6 - wa s la wf ul a nd thi s initi a l det e nti on pr ov ide d the pr ob a ble c a us e fo r Wy so ng ’s arr e st. “ F or F ourt h Amendment purpose s: ‘Probable c ause ne cessa ry to justi fy an ar rest is define d as whe ther at that moment the fac ts a

nd circ umstances within [the office rs’] know ledg e and of which they h ad

rea sonably

trustworthy

informatio n we re sufficie nt to warra nt a prude nt man in believing that the [arrestee ] had committ ed or w as committing a n offe nse.” W

ilson v. Morgan , 4 77 F .3 d 3 26 , 3 33 (6 th Cir. 2007) (quoti n g Ra dva ns k yv . Ci ty of O lm ste ad

Fa lls , 395 F.3d 291, 302 ( 6th Cir. 2005)) (alter a ti o nin

o r ig in a l)

. Wy s o n g d o e s n o t d is p u te th e f o ll o w in g f

a c ts : t w o w it n e s s e s r e p o rte d

that Wy song had kicked the window of his c ar and made lewd and obscene g estures to the m; when they

re po rt e d th i s a c t i v i t y

t o R a m a g e an d

R a m a g e a t t e mp t e d

t o s p e a k w i t h W y s o n g , h e f

l e d d e s pit e Ramag e’s or deringWy song to stop and telling him he was under arr est; and af ter Ramag e knocke d Wy so ngov e r, he c on tin

ue d to stru g g le wi th Ra ma g e and oth e r of fi c e rs un til the of

fi c e rs we re a

ble to place Wy song in handcuf fs. “Whether

there exis ts a probability of criminal ac tivity is assessed

un de r a re a so na ble ne ss s tand ard

ba se d o n a

n e xami natio n o f f

a c ts a nd c ir cum stan c e s withi n an off ic e r’ s k no wle dge at t

hetim e of a n a rre

st .” Thacker v

. City of Columbus , 3 28 F .3 d 2 44 , 2 55 (6 th Cir . 2 00 3) (e mph a sis in o ri g ina l) (i nte rn a l qu otatio n ma rk s r e mov e d) . T he se a c tio ns su pp or t on ly

one conc lusion—that the c i rc u m s t an ce s showed that at the time of Wy song ’s ar

rest, the of

fice rs

rea so n ab l y b elieved ba sed on the fa cts and c ircumstance s that Wy song was e ng ag ed in cr iminal activity

. That the off

icer s later lea

rned tha t Wy song was a

diabetic suff

eringfrom low blood sug ar does not neg ate the e arlier fi n d i n g of proba

ble ca use. Wy song argues that his appea l conce rnsNo. 08-3319

W y so ng v . Ci ty of H e ath

- 7 - actions take n by the police only afte r they lear ned that he was a diabetic suffe ring from low blood sug ar, but we have a lrea dy reje cted the argument that “[w]hen subsequent developments disprove the cor rec tness of a pr evious police de termination that probable cause exis ts, . . . the police no long er have justification under the F ourth Amendment to continue the incar cer ation, and must relea se the suspect.” Pe e t v . Ci ty

of D e tro it , 502 F .3 d 5 57 , 5 65 (6 th C ir . 2 00 7) ; see also Re ynolds v. Jam ison , 488 F.3d 756, 765 ( 7th Cir. 2007) (“The fac t that an office r later discovers a dditional evidence unknown to her at the time of t he arrest, even i f i t tends to neg ate pr obable c ause, is irre levant—we only car e about what the offic er kne w at the time the de cision was made .”)

. We stated in Pe e t stated that po lic y

do e s n ot s up po rt

a re qu ir e me nt t

hat in ve sti g a tor s “ re e va luate pr ob a ble c a us e c on sta

ntl y with e very additional witness interview and scr ap of e vidence collecte d.” 502 F .3d at 565. B e c a us e the re i s n o g e nu i n e i s s u e o f m a t e r i a l f a c t a s t o w h e t h e r t h e o f

f i c e r s h a d p r o b a

b l e c a u s e t o a rr e st Wy song at the time of his ar rest, the of

fice rs ar e entitled to summa ry j u d gm ent on Wy song ’s constitutional claim of false a rre st. The off icer s are also entitled to summary judgme nt with respec t to Wy song ’s constitutional claim of malicious prose cution beca use Shapiro made the dec ision to prosecute Wy song and ther e is n o e vid e nc e in t

he re c or d th a t th e of

fi c e rs mis le d Sh a

pir o in any wa y . T he Sixth Cir cuit

re c og nize s a

c on sti tut ion a l c la im f

or ma lic iou s pro se c uti on in vio latio n of t he F ourt h A me ndme nt, Thacker , 3 28 F .3 d at 25 8- 59 , b ut w e have no t re so lve d th e e le me nts of a ma lic iou s p ro se c uti on

c la im based upon the Four

th A mendment. Id

.; se e als o B rin e r v . Ci ty

of O nta rio , N o . 0 8

- 3 7 3 1 , 2 0 1 0 WL 1141152, at *18 (6th Cir. Mar. 26, 2010) . Howeve r, ‘[t] his c ourt has held that a police of fice r ca nnotNo. 08-3319

W y so ng v . Ci ty of H e ath

- 8 - be liable f or F ourth Amendment malicious prose cution when he did not make the dec ision to bring char g es, as long as the information he submitt ed to the prosec utor is truthful.” Kinkus v. Village of Y or k v ill e, O hio , 2 8 9 F e d

. A p p ’ x 8 6 , 9 1 ( 6 th Ci r . 2 0 0 8 )

. We he ld in Kin k us that an Ohio police of fi c e r who c omp le te d a

po lic e re po rt and sig ne d a c ri min a l c omp la int fo rm c ou ld n ot b e he ld l ia

ble be c a us e tho se do c ume nts were ultim a te ly fo rw ard e d to the pr os e c uto r who ma de the de c isi on to prosec ute. Id. The c ourt in Kin k us based its dec ision on Skousen v . Brighton High School , 305 F.3d 520, 529 (6th Cir. 2002) , which held that when a police off

icer does no more tha

n provide truthful information to the prosec utor’s off ice, that of

fice r cannot be held liable f or malicious prosec ution. Her e, ther e is no evidenc e t h at R amag e or the other off icer s did any

thing to ca

use Wy song to be prosec uted other tha

n provide the pr osecutor w ith truthful information. Wy song points to t he police repor t prepa red by Ramag e, the criminal complaint filed by another patrolman in the He ath Police Depa rtment, the He ath Intake F orm for Misdeme anor Char g es, and a response to an interrog atory statin g that Rama g e pa

rt ic ipate d in the de c isi on

to b ri ngc ha

rg e s a g a ins t Wy so ng , b ut n on e of the se d o cu m en t s ch al l en ge t h e f ac t t h at o n l y S h ap i ro co u l d

m ak e t h e d ec i s i o nt o p ro s ec u t e W y s o n g. There fore , the offic ers a

re e ntitled to sum mary

judgme nt with respect to Wy song ’s constitutional claim of malicious prose cution. Wy so ngargue s th a t th e of fi c e rs sh ou ld b e lia

ble be c a us e Sha piro ba se d h is d e c isi on

to prosec ute upon fa lse and misleadingrepr esentations provided by the officers, but ther e is no

e v id e n c e to s u

p p o rt th e s e a ll e g a ti o n s . A c c o r d in g to Wy s o n g , th e o f f ic e r s mi s le d Sh a

p iro both by faili n g t o p ro v ide Shapiro with the re levant information about Wy song ’s diabetic se izure and byNo. 08-3319

W y so ng v . Ci ty of H e ath

- 9 - falsely repor ting that Wy song was lucid d u ri n g h is arre st. The re cord shows, how ever , that the

re po rt s f ro m Rama g e and

Cou lte r inf

or me d Sha pir o that Wy so ng ’s a c tio ns may have be e n th e re su lt of a dia be tic se izur e . B oth

re po rt s c le arl y state d that Wy so ng c la ime d to be a dia be tic and that w hil e still in custody

he wa s treate d by

para medics and taken to the emer g ency room as re quested by

the par am ed i cs . C o u l t er ’s re p o rt ev en i n d i ca t edt h at t h e p ar am ed i cs i n fo rm edt h e o ff i ce rs t h at Wy song ’s blood suga

r leve l was 48. Wy song claims that the offic ers should have provided the e merg ency depar tment report in which Wy song ’s emer g ency room doctor state d that Wy song ’s ac tions were the result of a medical condition and shoul d not lead to arr est or criminal char g es, but that repor t was not transcr ibed until two day s after Ramag e and Coulter pr epar ed their repor ts; Ramage testified at his deposition that he did not become a war e of the emer g ency

depar tment report until afte r Wy song filed suit. Moreover , Wy song cannot r aise a g enuine issue of m ater ial fac t as to whether Coulter’s state me nt t

hat Wy so ngwa s r e sp on siv e to t hr e a ts o f m a c e wa s f

a lse be c a us e, as we no te d in Wy so ng ’s pr e vio us a

pp e a l, Wy so ng c la ime d to have no me mor y of e ve nts that oc c ur

re d d ur inghis

arr est. W ysong , 260 F. App’ x at 849. Finally , the offic ers a

re e ntitled to im munity

on all of Wy song ’s state lawclaims of malicious pr os e c uti on

and fa lse arr e st. Oh io R e vis e d Co de 27 44 .0 3( A) pr ov ide s: I n a civil ac tion broug ht ag ainst a poli tical subdivision or an employ ee of a political su bd ivi sio n to re c ov e r d a mages for in ju ry . . . c a us e d b y any a c t or omi ssi on in connec tion with a gove rnmental or pr oprietar y function, the following d ef enses or i m m u n i t i e s m ay b e a s s e rt e d t o e s t a b l i s h n o n l i a

b i l i t y: (6 ) .

. . the e mpl oy e e is i mmune fr om l ia bil ity un le ss o ne of

the fo llo wi nga

pp lie s:No. 08-3319

W y so ng v . Ci ty of H e ath

- 10 - (a) The e mploy ee’ s acts or omissions were manifestly ou t s i de the sc ope of the e mpl oy e e ’s e mpl oy

me nt o r o ff

ic ia l r e sp on sib ili tie s; (b) The employ ee’ s acts or omissions wer e with malicious purpose, in bad faith, or in a wa nto n o r r e c kle ss m ann e r; (c) Civil liability

is ex pressly imposed upon the employ ee by a sec tion of the Revised Code. Wy so ngha s n ot a lle g e d a pp lic a tion of th e ex cepti on s d isc us se d in su bp art (a ) o r ( c ), and

no fa c ts jus tif y the a pp lic a tio n o f t

ho se su bp art s h e re . B e c a

us e the of

fi c e rs ha d pro bab le c a

us e to a rr e st Wy so ngand

Wy so ngha s n ot r a ise d a

tr ia ble qu e sti on

of fa c t on his c la ims that th e of

fi c e rs wi thh e ld information from or

provided fa lse i n fo rm at i o n to Shapiro, Wy song cannot show that any of the office rs’ a ctions were wanton or reckle ss, in bad faith, or t aken with malicious purpose. Theref ore, the offic ers a

re e ntitled to sum mary

judgme nt on the basis of state law immunit y . For these re asons, the judg ment of the district cour t is affirmed.