NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0275n.06 No. 12-1774 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

GUADA L UPE L I

NDA GA RCI A, Plaintiff-Appellant,

v. MATTHEW THORNE, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Before: MARTIN and GILMAN , Circuit Judges; and FOWLKES, District Judge. * BOYCE F . MARTIN, JR., Circuit Judge. Guada lupe L inda Gar cia sued Of fi ce r M atthew Thorne of the Mason Police Depa rtment, allegi n g false arr est, violation of her substantive due proce ss rig hts, malicious prosec ution, reta liation, and abuse of proce ss. Thorne moved for summary judgme nt on all claims, and the district court gra nted hi s motion. For the reasons that fo l l o w, we AF F IRM the judg ement of the district court. I

. On Marc h 17, 2008, the Mason Police Depa rtment responde d to a brea king and enter ing at

a home in Mason, Michig an. During the course of the investiga tion, Gar cia’ s fiftee n-y ear -old son, Chaz S mith, became a

suspect. On March 24, 2008, Offic er Thorne requested a war rant from the

T h e H o n o r a b l e J o h n T

. F o w l k e s , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e W e s t e r n D i s t r i c t o f T e n n e s s e e , s i t t i n g * b y d e s i g n a t i o n .No. 12-1774

Garcia v. Thorne I ng ham County

Prosecutor’ s Offic e. In the warrant request, Thorne cited Chaz for se cond-de g ree home invasion, and he noted that the crime is a felony

. On Marc h 27, 2008, Assistant Prosecuting Attorney Patricia Esch authorized the war rant, and beca

use Chaz was a juvenile, the state court’s family division issued an apprehe nsion order

. I n the authoriz at i o n s ection of the warrant request, Esch cited Cha z for second- deg ree home invasion and a lso indicated that the c rime is a fe lony

. Thorne called Garc ia’s mobi le and home phones sever al t imes i n an attempt to appre hend Chaz. Acc ording to Gar cia, Thorne made calls at inappropria te hours. I n her complaint, she claims that Thorne called her home telephone on April 1, 2008 at approximately 3:00 a.m., and that she told Thorne to leave her son alone. Gar cia also claims that Thorne called her home and mobile phones

o n Ap ri l 10, 2008 betwee n 1:00 a.m. and 4:00 a.m. Acc ording to Thorne, Gar cia ref used to gi v e Thorne her curr ent addre ss. Appar ently , neither Thorne nor any one in the Mason Police Depa rtment knew Gar cia’ s addre ss, but at some point Thorne obtained information that she had moved from Mason to the south side of L ansing , Michig an. Thorne had at least one interac tion with Gar cia prior to his attempts to arr est Chaz. Around 2005, Gar cia had a domestic dispute with her then boy friend and former L ansing Police Offic er Rob Var g as. Acc ording to Gar cia, Var g as broke into her home and assaulted and rape d her. She called the Mason Police Depa

rtment to repor

t the incident and Thorne arr ived at the scene . Gar cia felt as if Thorne did not take her complaint seriously and that he blamed her for the dispute. Acc ording to Gar cia, Thorne told h er t h at she should leave Var g as alone. I n Thorne’ s 2008 I ncident Report

conce rning his attempts to appre hend Chaz, he noted that “[i] t is known throug h many contac ts with [Garcia] that she is very

anti-police.” - 2 -No. 12-1774

Garcia v. Thorne On April 3, 2008, Gar cia visited Matt Stuard, the Prog ram Coordin at o r at C h az ’s school, Mason Summi t Hig h School, i n order to talk about Chaz’s absenc e from school. Stuard sent an email to the school’s Resource Offic er, Steve Chick, explaining what took place during the meeting with Gar cia. Acc ording to Stuard’s email, Gar cia explained that Chaz was having “leg al problems” and that there was a war

rant for his a

rre st. Gar cia also told Stuard that she did not see the point of having Chaz return to the school in light of the fa ct that “he was g oing to be taken in any time.” On April 10, 2008, Thorne spoke to Chaz over the telephone an d informed him that an appre hension order had been issue for his arr est. Acc ording to Thorne, Chaz ag ree d to turn himself in on April 14, 2008. On April 14, 2008, whe n Thorne a rrived at work, De partment sec reta ry J an L ifsey told him that Gar cia had contac ted the Depart ment stating that Chaz would not be turning himself in and complaining that Thorne had been calling her in the ear ly morning hours. L ater that day , Thorne contacte d Stuard, who t old Thorne that Chaz had not been in school since March 31, 2008 and that Gar cia said that she knew the Depa rtment wanted to arr est Chaz. Acc ording to Gar cia, sometime betwee n 1:00 a nd 4:00 a m on April 15, 2008, Thorne called her and threatened her with criminal cha

rg es. On April 15, 2008, Thorne submitt ed a war rant reque st for Gar cia to the Prosecutor’ s Offic e, citing he r for

harbor ing a

felon. The war

rant re quest listed the location of the cr ime as the City of Mason and listed G arc ia’s addre ss a s being in Ma son. On April 16, 2008, instead of authorizing a

war rant for harbor ing a fug itive, the Prosecutor’ s Of fi ce authorized a war

rant for misdemeanor truanc y . Acc ording to Thorne’ s Incident Report, he obtained G arc ia’s L ansing , Michig an addr ess

o n Ap ril 16, 2008. The L ansing Police Depa rtment executed the war rant the same day and - 3 -No. 12-1774

Garcia v. Thorne transfe rre d Gar cia into Thorne’ s custody

. The police arr ested Chaz on April 17, 2008. Gar cia was in county jail for less than a full day , and a littl e over a mont h afte r her arr est, the prose cutor filed

a nolle prosequi and dismiss ed the truanc y char g es. Gar cia filed the instant suit on April 10, 2011. Gar cia broug ht six claims ag ainst Thorne under 42 U.S.C. § 1983: (1) false arr est; (2) violation of her substantive due proce ss rig hts; (3) malicious prosec ution; (4) reta liation; (5) abuse of proce ss; and (6) exemplary damag es. Thorne moved for summary judgme nt, and the district court g rante d the motion as to all claims and noted that Gar cia improperly broug ht exemplary damag es as a cla im. Garc ia appe als the district court judg ment. I I

. We revie w a district court’s g rant of summary judgme nt de novo. Binay v. Bettendorf , 601 F.3d 640, 646 (6th Cir. 2010) (citation omitted). Summary judgme nt is proper “if the movant shows that there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a)

. “In deciding a motion for summary judgme nt, the court must view the fac tual evidenc e and draw all rea so n ab l e i n fe rences in favor of the nonmoving party .” Banks v. W

olfe Cnty. Bd. of

Educ. , 330 F.3d 888, 892 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v

. Zenith Radio Corp. , 475 U.S. 574, 587 (1986))

. “While all infere nces are draw n in f avor of the non-moving party , that party still must prese nt some aff irmative evidenc e supporting its position to defe at an otherwise appropr iate motion for summary judgme nt.” Tucker v. Tennessee , 539 F.3d 526, 531 (6th Cir. 2008) (c itations omi tted).

I I I

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Garcia v. Thorne Gar cia claims, on false arre st and malicious prosec ution theories, that Thorne viola ted her Four th Amendment rig ht to be fre e from an u n l aw fu l s ei z u re. To state a claim of false arr est, a plaintiff must show that the arr esting office r lacke d probable cause to arr est her. Syke s v. Anderson , 625 F.3d 294, 305 (6th Cir. 2010) (citing Voytick y v. Village of Timberlake , Ohio, 412 F.3d 669, 677 (6th Cir. 2005)). We are willing to assume that Gar cia may bring this claim ag ainst Thorne in spite of the fac t that Thorne was not the arres t i n g office r and that the Prosecutor’ s Offic e authorized a

war rant for Gar cia’ s arr est based a truanc y char g e, which is not the cha rge u p o n wh i ch Thorne soug ht to have Gar cia arr ested. To state a claim for malicious prosec ution, a plaintiff must show that the arr esting office r lacke d probable cause to seek the initiation of criminal proce eding s ag ainst her. Id

. at 310–11 (citing Fox v. DeSoto , 489 F.3d 227, 237 (6th Cir. 2007)). We are willing to assume that Gar cia may bring this claim ag ainst Thorne beca use it is likely that, as the investigating office r, Thorne inf

luence d the dec ision to prosecute Ga rcia

. Id . at 311. Gar cia argu es t h at t h ere could not have been probable cause to arr est her or to initiate criminal proce eding s ag ainst her for the crime of harbor ing a felon beca use Thorne knew or should have known that beca

u s e Chaz was a minor, he would not be char g ed as an adult and there fore would not be char g ed with a felony

. Gar cia does not dispute that she was indeed harbor ing Chaz. I n order to make a finding of probable cause , we consider the totality of the circ umsta n ce s and whether the fac ts and circ umstances of which Thorne had knowledg e at the time of the arr est wer e sufficie nt to war

rant a prudent person in believing that Gar cia had committed an offe nse. Id

. at 306 (citation omitted). The arr esting office r’s actua l motives are irre levant to the probable cause

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Garcia v. Thorne analy sis. Criss v. City of

Kent , 867 F.2d 259, 262 (6th Cir. 1988) (citing Scott v. United States , 436 U.S. 128, 138 (1978)). Thorne had proba b l e cause to believe that Gar cia had committed the crime of harbor ing a felon. Gar cia argues that the family court’s issuance of the war rant for Chaz’s arr es t i s a cl ear indication that Chaz would not be charg ed as a n adult. Although it is true that the f amily division of the Michig an Circuit Court has exclusive jurisdiction i n d ea l ing with juveniles, Mich. Comp. L aws § 712A.2, judge s may waive this jurisdiction in case s involving juveniles ag e 14 and older who commit crimes that would be a f elony if committed by

an adult. Mich. Comp. L aws § 712A.4( 1);

see also P eo

p l e v. Hana , 504 N.W.2d 166, 168–69 (Mich. 1993). Chaz’s crime, second- deg ree home invasion, is a felony for adults and he was 15 y ear s old at the time. Ad d i t i o nally , in authorizing Thorne’ s war rant reque st for Ch az, Assistant Prosecutor Esch indicated that Chaz’s crime w as a f

elony . Thorne’ s knowledg e at the time of Gar cia’ s arr est was sufficient to war rant a prudent pe rson in believing that Gar cia ha d committed the crime of harbor ing a

felon. Next, Gar cia argues that Thorne lacke d probable cause beca use he made materia l fa l se statements in the war

rant reque st when he stated that the crime, harbor ing a felon, t o o k p l ac e i n Mason and that Gar cia’ s last known addre s s wa s a Mason addre ss. Wit h reg ard to the falsestatement claim, Gar cia must prove by a preponde ranc e of the evidenc e that, in order to procur e the

war rant, Thorne “‘know ingly and deliberately , or with a rec kless disreg ard for the truth, made false statements or omissions that cre ate[d] a falsehood’ and ‘such statements or omissio n s [ we]re materia l, or nec essar

y , to the finding of proba

ble ca use.’” Syke

s , 625 F.3d at 305 (quoting W ilson

v. Russo , 212 F.3d 781, 786–87 (3d Cir. 2000) (citation omitted)). Thorne obtained Gar cia’ s L ansing - 6 -No. 12-1774

Garcia v. Thorne addre ss on April 16, 2008, but he testified that he knew Gar cia moved to L ansing prior to that date. Gar cia alleg es that Thorne obtained her L ansing addre ss on April 10, 2008. Viewing the fac ts in the light most favor able to Gar cia, the Court will assume that Thorne knew that Gar cia lived in L ansing at the time that he submitt ed the war rant reque st, and that he knowing ly and delibera tely made false statements when he alleg ed that Gar cia’ s last known addre ss w as a Mason addre ss and that Mason was the loc ation of the c rime. Even though Thorne knowing ly and deliberately lied about Gar cia’ s addre ss and the location of the crime, his statements wer e not materia l to a finding of probable cause . Section 750.199(3) of the Michig an Compil ed L aws e xp la in s that “a person who knowing ly or willfully conce als or harbor s for the purpose of conce alment from a pea ce of fice r” someone who i s subject t o an arrest warra nt

or bench war

rant for a felony is g uilty of a felony

. M ich. Comp. L aws § 750.199(3). Statements reg arding Gar cia’ s knowing or willful conce alment of Chaz or about Chaz’s arr est war rant for a felony would be materia l to a finding of probable cause for the c rime of ha rboring a fe lon. Gar cia does not alleg e that Thorne made fal s e s t at ements conce rning Gar cia’ s knowing or willful

conce alment of Chaz or about Chaz’s ar rest warra nt for a felony in the warrant request. Thorne’ s false statements about the loca t i o n o f t h e crime and Gar cia’ s addre ss are , at most, materia l to a finding of the Mason Police Depa rtment’s jurisdiction over the matter. I t is not materia l to a finding of proba ble ca use that Ga

rcia was c ommitt ing the crime of harbor ing a

felon. Even if this Court wer e to find that Thorne lacke d probable cause in seeking Gar cia’ s arr est, Thorne is entitled to qualified immunit y . Police office rs are entitled qualified immunit y unless there is such an utter lack in probable cause that no office r of rea sonable com p et ence would have - 7 -No. 12-1774

Garcia v. Thorne conclude d that a war

rant should issue. Hutsell v. Sayre , 5 F.3d 996, 1003 (6th Cir. 1993) (citing Malley v. B r i

g g s , 475 U.S. 335 (1986); Y ancey v. Carroll Cnty. , 876 F.2d 1238, 1243 (6th Cir. 1989)). I n other words, if we find that Thorne lacke d probable cau se, we turn to the question of whether Thorne made a rea sonable mistake of law. I f Thorne made a mistake of law, it was a

rea sonable mistake g iven that, at the time he submitt ed the war rant reque st, he knew that: (1) Gar cia admitted to both the Mason Police Depa rtment and an officia l at Chaz’s school that she was awa re that there was a war

rant for Chaz’s arr est; (2) Gar cia told the Mason P o l i ce Depa rtment that she advised he r son not to turn himself in; and (3) the w arr ant for Cha z was for a felony crime. I V. G a rcia claims that Thorne violated her Four teenth Amendment substa n ti v e d u e p r o c e s s r ig

h ts by : (1) repe atedly calling Gar cia’ s mobile and home phones during unrea sonable hours afte r being told to stop and even afte r Gar cia complained t o t h e M ason Police Depa rtment; (2) intentionally submitt ing a war

rant reque st for an alleg ed offe nse outside of his jurisdiction; and (3) intentionally submitt ing a war

rant reque st for an offe nse for which probable cause did not exis t. The Four teenth Amendment’s Due Process Clause has a substantive component that g uara ntees “‘pr otection of the individual ag ainst arbitra

ry action of g overnme nt.’” Jones v. Byrnes , 585 F. 3 d 9 7 1 , 976 (6th Cir. 2009) (quotin g W

o l f f v. McD onnell , 418 U.S. 539, 558 (1974))

. Gar cia must show that Thorne’ s conduct was so arbitra

ry as to “shock the conscious.” Id. (citing Cnty. of Sacrame nto v. Lewis , 523 U.S. 833, 846–47 (1998)) ; see also Draw v. City of Lincoln Park, 491 F.3d 550, 556 (6th Cir. 2007) (stating that “police conduct must be truly extraordinary in nature to qualify as ‘consc ience shocking ’” a

nd conduct that showe d “incr edibly poor judg ment” did not meet this standard)

. - 8 -No. 12-1774

Garcia v. Thorne Taking Gar cia’ s alleg ations reg arding the hour and f r equenc y of Thorne’ s phone calls as true, althoug h she has not produce d any evidenc e substantiating the alleg ations and Thorne has produce d phone rec ords proving that no such calls wer e made using his officia l police mobile phone, the calls do not shock the conscie nce. This Court has employ ed a very high s t an d ar d wh en deter mining whether po l i ce action shocks the conscie nce. For example, in Lill ard v. Shelby County Board of Education , 76 F.3d 716, 725-26 (6th Cir. 1996), wher e public school students claimed that a teac her phy sically

abused a nd sexually

hara ssed them, we de termined that the slapping of a student’ s fac e without causing phy sical injury , while inappropriate, did not shock the conscie nce. We also held that the teac her’ s rubbing of a student’s stomach, acc ompanied by a rema rk that could be interpre ted as sexually sug g estive, while wholly inappropriate, did not shock the conscie nce. Lill ard , 76 F.3d at 726. I n Mitchell v. McNeil , 487 F.3d 374, 376-77 (6th Cir. 2007) , the pare nts of a twelve- y ear -old boy alleg ed in the complaint that city police officials violated t heir subst antive due p ro ce s s rig hts and thos e of their child by permitting a police officer to lend h i s p er s o n al vehicle to an informant who subsequently hit and killed their son with the vehicle. We held that the complaint’s alleg ations did no t al l ege conscie nce- shocking conduct even though the complaint alleg ed a city custom of “enc ourag ing police office rs to provide automobiles to informants with known histories of drug and alcohol use.” McNeil , 487 F.3d at 377. We noted that while such a policy may be “strang e,” it was not conscienc e shocking

. Id

. Her e, while making phone calls to the mother of a suspected felon betwee n the hours of 1:00

a.m. and 4:00 a.m. arguably shows poor judgme nt on the part of Thorne, s u ch b eh av i o r does not shock t he consc i en ce . Nor does Thorne’ s having intentionally submitt ed a war rant request for an - 9 -No. 12-1774

Garcia v. Thorne alleg ed offe nse outside of his jurisdiction shock the conscie nce beca use he did not make the arr est himself. Once he obtained Gar cia’ s L ansing addre ss, he allowed office rs wit h the L ansing Police Depa rtment to arr est Gar cia. Finally , Gar cia’ s alleg ation that Thorne intentionally su b m i t ted a

war rant reque st for an offe nse for wh i ch probable cause did not exis t is unpersua sive beca use we have a lrea dy

deter mined that probable cause did exi st. V. Gar cia argues that Thorne violated her First Amendment rig ht to be fre e from reta liation for expressing her criticism of Thorne when Thorne: (1) called Gar cia on April 15, 2008, betwee n 1:00

am. and 4:00 a.m.; and (2) submitt ed the war rant reque st seeking criminal char g es ag ainst Gar cia. T o es t ab l ish a reta liation claim under the First Amendment, Gar cia must show that: (1) sh e wa s eng ag ed in constitutionally prot ec t ed ac t i vity ; (2) Thorne’s adverse action caused her t o suffe r an injury that would likely chill a person of ordinary firmness from continuing to eng ag e in that activity ; and (3) the adver se action was motivated at l ea s t i n p ar t as a response to the exercise of her constitutional rights. Bloch v. Ribar , 156 F.3d 673, 678 ( 6th Cir. 1998) (citations omitted). Thorne argues that Gar cia has not es t ab l i s h ed that the phone calls made the morning of Aug ust 15, 2008 or the decision to se ek criminal char g es ag ainst Gar cia wer e motivated in part by Gar cia’ s complaint that Thorne repe atedly called her at irregular hours. I f a defe ndant can show that he would have taken the same action in the absenc e of the protec ted activity , he is entitled to preva il

on summary judgme nt. Thaddeus-X v. Blatter , 175 F.3d 378, 399 (6th Cir. 1999). The plaintiff must point to specific , nonconclusory evi d ence rea sonably linking her speec h to the adver se action. Rodgers v. Banks , 344 F.3d 5 8 7 , 6 0 2 (6t h Cir. 2003). “Te mporal proxi mity , standing alone, is - 10 -No. 12-1774

Garcia v. Thorne insufficient to establish a causa l connec tion for a reta liation claim.” Tuttl e v. Me t ro. Gov’ t of Nashville , 474 F.3d 307, 321 ( 6th Cir. 2007) (citations omitted). Gar cia contends that, in addition to the temporal proxi mity betw ee n her complaint and Thorne’ s Apr i l 15, 2008 call, Thorne’ s statements in his I ncident Report descr ibing her as “antip o l i ce ” and his comments to her during their interac tion in 2005 cre ate an infere nce of reta liation on his part. I t is unc lear whether Thorne’ s descr iption of Garc ia as a nti-police wa s in refe renc e to his communications w ith Ga rcia in the past or to his communications with Garc ia as he attempted to appre hend Chaz. Nonethele ss, Thorne de scribing Gar cia as anti-police is not an indication that he reta liated ag ainst Gar cia. Thorne’ s I ncident Report went on to explain the way s in which Gar cia

was hostile to him, a

nd Gar cia a dmitted to having some “ choice words” for Thorne during at least

o n e phone conver sation. No one could reasonably infer from Thorne’s comments an int en t i o n o r desire to r etaliate a g ainst Garc ia. Moreove r, this Court is not willing to view Thorne’s comments to Garc ia during the 2005 enc ounter, whic h involved a complete ly unrelated event that took place approximately three y ear s prior to Gar cia’ s complaint, as co m m en t s cre ating an infere nce of reta liation. Thorne’ s phone ca ll on April 15, 2008 and his decision t o pursue criminal char g es aga inst Gar cia wer e not acts of reta liation. Reg arding the phone call, Gar cia’ s complaint alleg es that Thorne made early morning phone calls to her on at l east two occas i o n s p ri o r to the April 15 phone call. Even assuming that Thorne had a pattern of calling Gar cia during the ear ly morning hours, howeve r unwise and inappropriate the phone calls might have been, such calls are not evidenc e that Thorne’ s

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Garcia v. Thorne

ca l l o n April 15 was in reta liation for her informal complaint; rathe r, they are evidenc e of th e continuation of an a lrea dy established patter

n of beha vior. As to Gar cia’ s claim that Thorne reta liated by pursui n g c r im in a l c harg es and seeking an arr est

war rant, the Supreme Court has held that the lack of probable cause is highly probative, if not dispositi ve, of the exis tence of a ret al i at o ry motive. Hartman v. Moore , 547 U.S. 250, 265–66 (2006)

. Along those same lines, it is arguable that the exis tence of probable cause indicates a lack of reta liatory motive. We have alre ady established that Thorne had prob ab l e ca u s e i n seeking to obtain an arr est war

rant for Gar cia. Moreove r, it is likely that Thorne soug ht the war rant for Gar cia’ s

arr est the day afte r Gar cia made her complaint beca use, in addition to complaining about Thorne’ s phone calls, Gar cia also reve aled that she did not intend to allow Chaz to turn himself in. Although summary judgme nt is g ener ally not well suited for case s in which motive and intent are at issue and in which the alleg ed wrong doers are in cont ro l o f the proof, Perry v. McG innis , 209 F.3d 597, 600–01 (6th Cir. 2000) (citing Cooper v. North Olmsted , 795 F.2d 1265, 1272 (6th Cir. 1986)), this is a case wher e summary judgme nt is appropr iate g iven that we have alre ady deter mined that Thorne had proba ble ca use for seekingGar cia’ s arr est and that Thor ne’s c halleng ed beha

vior is part of a

n established patter

n of beha vior in which Thorne eng ag ed prior to Ga rcia ’s protec ted ac tion. VI

. Finally , Gar cia acc uses Thorne of abuse of proce ss. T he Six th Circ uit ha s not “spec ifically deter mined whether a cla i m fo r ab u se of proce ss is a cog nizable constitutional claim that can be redr essed pursuant to § 1983.” Voytick y , 412 F.3d at 676. Stil l, we h av e resolved section 1983

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Garcia v. Thorne abuse- of-pr ocess c laims without deciding whether such a claim is c og nizable a nd, in doing so, we ty pically assume that the e lements would likely mirror those of

state law. Id. at 676–77. I n Michig an, to establish a claim for abuse of proce ss, a plaintiff must prove: “(1) an ulterior purpose and (2) an act in the use o f p ro ce s s whi ch is improper in the reg ular prosec ution of the proce eding .” Friedman v. Dozorc , 312 N.W.2d 585, 594 (Mich. 1981) (citation omitted). For an abuse- of-pr ocess claim, the misconduct “is not the wrongfu l p ro cure ment of leg al proce ss or the wrong ful initiation of criminal or civil proce eding s; it is the misuse o f p roce ss, no matter how proper ly obtained, for any purpose other than that which it was desig ned to acc omplish.” Id. at n.18 (quoting Restatement (Second) of Torts § 682 cmt. a (1977))

. Gar cia’ s abuse- o f- p ro ce ss claim ag ainst Thorne fails beca

use Thorne’ s behavior has to do with the initiation of criminal proce eding s, not the misuse of proce ss. Spear v. Pendill , 130 N.W. 343, 344 (Mich. 1911) (stating that the abuseof-pr ocess cau s e o f ac t i o n “lies for the improper use of proce ss afte r it has been issued, not for maliciously

causingit to is sue”)

. For the af oreme ntioned rea sons, the judgme nt of the district court is AF F IRMED

.

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