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### STATE OF MICHIGAN

COURT OF APPEALS

KEVIN SCHILBE,

Plaintiff-Appellant, UNPUBLISHED November 10, 2015

v No. 322062 Wayne Circuit Court HENRY FORD HEALTH SYSTEM, SONJA JOHNSON, and HOLLIE KISHNER, LC No. 13-007585-CZ

Defendants-Appellees.

Before: S TEPHENS , P.J., and C AVANAGH and M URRAY , JJ.

P ER C URIAM

. Plaintiff was arrested and criminally charged with the theft o f a cell phone that belonged to defendant Hollie Kishner (a /k/a Kushner), an employee at def endant Henry Ford Health System (“HFHS”). The theft allegedly occurred when plaintiff v isited HFHS to schedule a medical procedure. The criminal charge was later dismissed. P laintiff thereafter filed this action against HFHS, Kishner, and Sonja Johnson, a security officer at HFHS, alleging both state and federal claims under 42 USC 1983 for false arrest, false impris onment, and malicious prosecution. The trial court gran ted defendants’ motion for su mmary disposition under MCR 2.116(C)(10) and dismissed the case. Plaintiff appeals as of r ight. We affirm.

I. FACTS

Plaintiff met with Kishner, an intake scheduler at HFHS, to sc hedule a surgical procedure to remove polyps on his throat. Within 5 minutes after plainti ff left Kishner’s office, Kishner noticed that her cell phone that had been placed on the top of her desk was missing. When she called her phone, the person who answered it stated, “This is K evin.” Kishner recognized the person’s voice as plaintiff’s voice, because of its distinctive “scratchy” quality due to the throat polyps. When plaintiff later called Kishner to confirm his ref erral for the medical procedure, Kishner accused plaintiff of taking her phone, which he denied. HFHS’s security staff found Kishner’s phone case in a trash r eceptacle near her office. Jo hnson investigated calls that were made from Kishner’s phone and spoke to a man named Lee Dorrin, who informed Johnson that he had talked to plaintiff that day and plaintiff offered to se ll him a cell phone for $20. After plaintiff returned at defendant’s request to the HFHS facility, he was detained in a holding cell for almost three hours before bein g released to the custody of police officers from the Detroit Police Department (DPD).-2- Approximately two months after this incident, the DPD obtained a felony warrant for plaintiff and he was arraigned on a charge of theft. Following a preliminary examination, he was bound over for trial, based primarily on Kishner’s testimony. However, the charge was later dismissed.

II. ANALYSIS

A. STANDARD OF REVIEW

The parties filed cross-motions for summary disposition under MCR 2.116(C)(10). A trial court’s summary dispositi on decision is reviewed de novo. Spiek v Dep’t of Transp , 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C )(10) tests the factual support for a claim. Babula v Robertson , 212 Mich App 45, 48; 536 NW2d 834 (1995). A reviewing court must consider the pleadings, affidavits, deposi tions, admissions, and other documentary evidence submitted by the parties. MCR 2.116(G)(5) . Summary disposition should be granted if, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter o f law. Babula , 212 Mich App at 48.

B. FALSE ARREST AND FALSE IMPRISONMENT UNDER 42 USC 1983

Plaintiff argues that the trial court erred in dismissing his claims for false arrest and false imprisonment under 42 USC 1983, because there were genuine issu es of material fact regarding whether there was probable cause for his arrest and detention.

42 USC 1983 allows a party to file an action for “ ‘the depriv ation of any rights, privileges, or immunities secured by the Constitution and laws’ because of the actions of another person acting ‘under co lor of any statute, or dinance, regulatio n, custom, or usage, of any State.’ ” Moore v Detroit Entertainment, LLC , 279 Mich App 195, 202; 755 NW2d 686 (2008). At issue here is whether, assuming Johnson and HFHS were acting under co lor of state law, 1 plaintiff can establish that he was unlawfully arrested and detained because there was no probable cause for his arrest and detention.

As our Supreme Court has explained:

“An arrest is the taking, seiz ing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into cust ody and subjects the person arre sted to the actual control and will of the person making the arrest. The act reli ed upon as constituting an arrest must have been performed with the intent to effect an arrest

1 The trial court found it unnecessary to decide that question. Because we conclude that plaintiff is unable to establish other necessary elements to a claim unde r § 1983, we likewise find it unnecessary to determine whether defendants, and particularly J ohnson, may be considered a state actor for purposes of § 1983.-3- and must have been so understood by the party arrested.” [ People v Gonzales

, 356 Mich 247, 253; 97 NW2d 16 (1959), quoting 4 Am Jur, Arrest, § 2.]

See also Dixon v Shiner , 12 Mich App 573, 582, 584; 163 NW2d 481 (1968).

Plaintiff submitted evidence that he was confined to a holding cell for at least two hours and was not free to leave during that time. The evidence, view ed in a light most favorable to plaintiff, supports plaintiff’s position that he was effectivel y arrested, and that his detention exceeded the bounds of a permissible Terry 2 stop, which is generally limited to a brief, on-thescene detention. People v Custer , 465 Mich 319, 327; 630 NW2d 870 (2001).

A false arrest is an illegal or unjustified arrest, meaning th at it was not based on probable

cause. Lewis v Farmer Jack Div, Inc , 415 Mich 212, 218; 327 NW2d 893 (1982). False imprisonment similarly involves the restraint of an individual without probable cause. Walsh v Taylor , 263 Mich App 618, 627; 689 NW2d 506 (2004). In Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 18-19; 672 NW2d 351 (2003), this Court explai ned:

To 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 ba sed on probable cause. [ Clarke v Kmart Corp , 197 Mich App 541, 546; 495 NW2d 820 (1992)]; Burns v Olde Discount Corp , 212 Mich App 576, 581; 538 NW2d 686 (1995); Tope v Howe , 179 Mich App 91, 105; 445 NW2d 452 (1989). If the arrest was legal, there has not been a false arrest or a false imprisonment. Tope, supra at 105. Whether the plaintiff could act ually have been convicted is irr elevant because actual innocence is not an e lement of false arrest. Lewis, supra at 218 n 1; Brewer v Perrin , 132 Mich App 520, 527; 349 NW2d 198 (1984). The Court in Lewis explained the general ru le and its limitations:

“[I]t must be a false arrest, made without legal authority

. One who instigates or participates in a lawful arrest, as for e xample an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution, as stated in Chapter 29, or for abuse of process, as stated in Chapter 31, but he is not liable for fals e imprisonment, since no false imprisonment has occurred.” [ Lewis,

supra at 218 n 2, quoting 1 Restatement Torts, 2d, § 45A, p 69, Comment b (emphasis added by Lewis, supra ).]

In the present case, the circ uit court found that “ample” prob able cause existed for the arrests. Where the facts are undisputed, the d etermination whether probable cause exists is a ques tion of law for the court to dec ide. Matthews v Blue Cross & Blue Shield of Michigan , 456 Mich 365, 381-382; 572 NW2d 603 (1998); Hall v Pizza Hut of America, Inc , 153 Mich App 609, 615; 396 NW2d

2 Terry v Ohio , 392 US 1, 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968).-4- 809 (1986). . . . Probable cause t hat a particular person has c ommitted a crime “ ‘is established by a reasonabl e ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the accused is guilty of the offense charged.’ ” People v Coutu (On Remand) , 235 Mich App 695, 708; 599 NW2d 556 (1999), quoting People v Tower , 215 Mich App 318, 320; 544 NW2d 752 (1996). Probable cause is not capab le of being precisely defined; rather, it is a commonsense concept dealing with practical considerations of everyday life that must be viewed from the pe rspective of reasonable and prudent persons, not legal technicians. Ornelas v United States

, 517 US 690, 695-696; 116 S Ct 1657; 134 L Ed 2d 911 (1996).

Probable cause to arrest is determined by the facts available a t the moment of arrest. Brewer

, 132 Mich App at 527.

The undisputed evidence establis hed that the following relevan t facts existed at the time plaintiff was effectively arrested at HFHS: (1) that Kishner’s cell phone was discovered missing shortly after plaintiff had been in Kishner’s office, and plain tiff had been left alone in Kishner’s office and was the last person known to be near the phone; (2) when Kishner called her cell phone, the person who answered it identified himself as “Kevin” ; (3) Kishner recognized the voice on the phone as plaintiff’s voice, based on its distincti ve “scratchy” quality; and (4) Johnson’s investigation revealed t hat a call had been made from plaintiff’s phone to Dorrin, who informed Johnson that plaintiff had called him after the teleph one went missing to ask if Dorrin wanted to buy a phone for $20. Plaintiff’s presence at the tim e and location where the phone was last seen before it went missing established that he had th e opportunity to take the phone. In addition to opportunity, however, Kishner’s statement that the person who answered her phone identified himself as Kevin, the same first name as plaintiff, and that she recognized the voice as plaintiff’s voice based on its d istinctive quality, established a reasonable ground for believing that plaintiff had taken Kishner’s phone. That suspicion was f urther supported when Johnson investigated a call that had bee n made from plaintiff’s phone a nd the recipient of that call confirmed that he had recently r eceived a call from plaintiff, who asked him if he wanted to buy a phone. 3 These facts established probable cause for believing that pla intiff had stolen Kishner’s cell phone.

Although plaintiff correctly obser ves that a motion for summar y disposition must be based on substantively admissible evidence, Maiden v Rozwood , 461 Mich 109, 123 n 5; 597 NW2d 817 (1999), we disagree with plaintiff’s argument that the evidence offered in support of the probable cause determination cannot be considered because i t is not admissible.

3 Plaintiff argues that Johnson’s call to Dorrin was made after plaintiff was already under arrest and, therefore, that information could not be considered in det ermining if there was probable cause to arrest plaintiff. However, in his deposition plaintif f admitted that when he was first taken to the security office, he was advised by security office rs that they had called one of the numbers and spoke to someone named “Lee Doren” or “Dorrin,” but plaintiff denied knowing that person.-5- Voice identification testimony is competent evidence if it is “reasonably positive and certain,” and is based on sufficient knowledge by the witness a bout the voice. People v Hayes

, 126 Mich App 721, 725; 337 NW2d 905 (1983). “[S]ome reason mus t appear to which the witness can attribute the ability to make the voice identificat ion, of which familiarity and peculiarity are the most co mmon, though not exclusive, examples .” Id

. Kishner was familiar with plaintiff’s voice because she had me t with him earlier that day. In addition, Kishner explained that plaintiff had a distinctive , “scratchy” voice because of the polyps on his throat. When she called her phone, she recognize d the voice of the person who answered as the same distinctive “scratchy” voice that plaintif f had, whom she had spoken to shortly beforehand. These facts establish that Kishner’s voice recognition was based on sufficient knowledge of plaintiff’s voice, from having met with plaintiff shortly beforehand, and her description of his peculiar “ scratchy” voice provided a rea son for her ability to make the voice identification. Thus, plaintiff has not shown that Kishn er’s voice recognition is not competent evidence of probable cause. Furthermore, the existen ce of probable cause was supported not only by Kishner’s recognition of plaintiff’s voic e, but also by the fact that the person who answered the phone stated, “This is Kevin.”

Plaintiff also argues that the s tatements by Dorrin to Johnson cannot be used to support a finding of probable cause to arrest because it is hearsay. Thi s argument is flawed for two reasons. First, the statements by Dorrin to Johnson were not o ffered for a hearsay purpose. “ ‘Hearsay’ is a statement, other than the one made by the declar ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter a sserted.” MRE 801(c). Hearsay is not admissible except as provided by the Rules of Evidence. MR E 802. The evidence regarding Johnson’s conversation with Dorrin was not offered to prove the truth of the matters asserted in that conversation, but to explain why Johnson proceeded to deta in plaintiff.

Second, even if Dorrin’s statemen ts could be considered hearsa y, that would not preclude their use for determining probable cause, as hearsay can be use d to establish probable cause to arrest. See People v Richardson , 204 Mich App 71, 80; 514 NW2d 503 (1994) (recognizing that “[s]uch hearsay testimony is almos t always necessary to establi sh the sources of probable cause for arrest”), and People v Echavarria , 233 Mich App 356, 367; 592 NW2d 737 (1999) (“[s]tatements containing multiple levels of hearsay may be use d to establish probable cause where the ordinary requirements of personal knowledge and relia bility or credibility are met for each level of hearsay”). Indeed, MCR 6.102(B) expressly provid es that “[a] finding of probable cause may be based on hearsay evidence . . . .” 4

4 Plaintiff also argues that a pr obable cause determination could not be based on the telephone call between Johnson and Dorrin b ecause Johnson indicated that she recorded the call, but the recording was never provided t o plaintiff. At her deposition, Johnson stated that she recorded her call with Dorrin, but turned the recording over to the DPD and did not retain a copy. It appears that the DPD or the pros ecutor’s office either lost or failed to retain the recording, preventing its production. Plaintiff did not offer any evidenc e suggesting that defendants had any involvement in the loss or destruction of the recording. P laintiff does not cite any authority-6- We likewise reject plaintiff’s argument that there was no prob able cause for his arrest because later discovered evidence established that he could not have been the person who used Kishner’s stolen phone. Plaintiff’s reliance on this evidence is misplaced for two reasons. First, as plaintiff repeatedly argues in his brief, probable cause to arrest is determined by the facts available at the moment of arrest. Brewer , 132 Mich App at 527. Second, the fact a person may be actually innocent of a charge does not establish that probab le cause did not exist for that person’s arrest. Peterson Novelties , 259 Mich App at 18-19.

In sum, we conclude that ther e is no genuine issue of material fact regarding the existence of probable cause for plaintiff’s arrest and detention. Accord ingly, the trial court properly dismissed plaintiff’s claims for false arrest and false impriso nment under 42 USC 1983.

C. COMMON-LAW MALI CIOUS PROSECUTION

Plaintiff next argues that the trial court erred in dismissing his common-law claim for malicious prosecution. A common-law claim for malicious prosec ution requires a plaintiff to prove that

(1) the defendant has initiated a criminal prosecution against him, (2) the criminal proceedings terminated in his favor, (3) the private person who instituted or maintained the prosecution lacked probable cause for his action s, and (4) the action was undertaken with malice or a purpose in instituting t he criminal claim other than bringing the offender to justice. [ Walsh , 263 Mich App at 632-633, following Matthews , 456 Mich at 378.]

Plaintiff asserts that he did not have to prove that defendant s intentionally lied, only that they made statements in reckless disregard for the truth. Plai ntiff appears to rely on the standard for probable cause for a search or an arrest, and ignores the r equirement of a malicious prosecution claim that the defe ndant initiated the action “with malice or a purpose in instituting the criminal claim other than bringing the offender to justice. ” Walsh , 263 Mich App at 633.

There is no evidence that Kishner, Johnson, or HFHS acted with any purpose other than to bring the person they believe d was responsible for the theft of Kishner’s cell phone to justice. There was no evidence that any defendant acted with malice, had any motive to falsely accuse plaintiff of taking Kishner’s phone, or knowingly provided fals e information on which the police or prosecutor relied to br ing criminal charges. Matthews 456 Mich at 385. Although plaintiff emphasizes that cell tower records later demonstrated that he c ould not have taken Kishner’s phone, plaintiff does not contend that defendants had access to that information when charges were brought. Thus, those records do not demonstrate that defe ndants should have known at the time plaintiff was arrested or when criminal proceedings were b rought that plaintiff could not have taken Kishner’s cell phone.

supporting his position that, under these circumstances, defend ants are not permitted to establish the contents of Johnson’s convers ation with Dorrin through othe r means, such as Johnson’s personal recollection knowledge of their conversation, or Johns on’s contemporaneous report about that call. See, MRE 1004(1) and (2).-7- Moreover, the evidence showed that defendants referred the mat ter to the DPD, which conducted its own investigation and then referred the matter to the Wayne County Prosecutor’s Office, which then made the decis ion to initiate criminal charg es against plaintiff. In Matthews

, 456 Mich at 384, our Supreme Court stated that “in Michigan, th e prosecutor’s exercise of his independent discretion in initiating and maintaining a prosecut ion is a complete defense to an action for malicious prosecution.” The Court observed that it had previously held in Christy v
Rice , 152 Mich 563; 116 NW 200 (1908),

that the trial judge erred in refusing to direct a verdict wher e the prosecutor conducted “his own investigation, and acted in his official cap acity upon that investigation, independent of defendant’s statement.” Id . at 567-568. Unless the information furnished was known by the giver to be false and was the information on which the prosecutor acted , the private person has not procured the prosecution. [Emphasis in original; footnote omitted.]

Plaintiff does not dispute that the prosecutor’s office perfor med its own investigation into the matter before initiating the criminal case against plaintif f. That action provides a complete defense to any claim that defendants wrongfully initiated the c riminal prosecution. Matthews

, 456 Mich at 384. Accordingly, the trial court properly dismiss ed plaintiff’s claim for commonlaw malicious prosecution.

D. MALICIOUS PROSECUTION UNDER 42 USC 1983

Plaintiff also argues that the trial court erred in dismissing his claim for malicious prosecution under 42 USC 1983. In Radu v Herndon & Herndon Investigations, Inc , 302 Mich App 363, 389-390; 838 NW2d 720 (2013), this Court explained tha t

a claim of malicious prosecution under § 1983 premised on a vio lation of the Fourth Amendment consists of four elements. Sykes v Anderson, 625 F3d 294 (CA 6, 2010). First, the defendant must have influenced or par ticipated in the decision to prosecute the plaintiff. Id. at 308. Second, because this claim is premised on a violation of a c onstitutional right, the plaintif f must show that there was a lack of probable cause for the criminal prosecution. Id. Third, the plaintiff must show that, “as a consequence of a legal proceeding,” he or she suffered a “deprivation of liberty,” apart from the initial seizure. Id. at 308-309 (quotation marks and citations omitted). Fourth, the criminal proceeding must have been resolved in the plaintiff’s favor. Id. at 309.

For the reasons previously disc ussed, plaintiff cannot establi sh that there was a lack of probable cause for the criminal prosecution. Plaintiff contend s that the later-acquired cell tower records show that defendants acted with reckless disregard for the truth. Although those records raise questions about plaintiff’s guilt, they do not establish that defendants acted with reckless disregard for the truth at the time charges were brought, parti cularly considering that the cell tower records were not then av ailable. In addition, the police and prosecutor conducted an independent investigation before the prosecutor’s office decide d to bring the criminal charge. There was no evidence that defendants influenced or participate d in that decision. Accordingly, the trial court properly dismi ssed plaintiff’s malicious prosec ution claim under 42 USC 1983.-8- Affirmed.

/s/ Cynthia Diane Stephens /s/ Mark J. Cavanagh /s/ Christopher M. Murray