NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0173n.06 No. 12-3508 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

L A T O N Y A M E A K E N S , Plaintiff-Appellant,

v. M I C H A E L B E N Z , Def endant- Appellee , ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHE RN DI STRI CT OF

OHI O

BEF ORE: MARTI

N and ROGERS, Circuit J udg es, and TA RNOW, District J udg e. * ARTHUR J . TARNOW, District J udg e. INTRODUCTION Be fore the Court is Plaintiff L aTony a Meak en s ’ ap p eal of the district court’s g rant of summary judgme nt in favor of Cleveland Police Detec tive Def endant Michae l Be nz. This g rant of summary judgme nt was a fi nal dismiss al of Meake ns’ action for damag es, in which Meake ns cl aim ed violations of her Four th Amendment rig hts as well as state law claims of malici o u s prosec ution and fa l s e arrest. The district court also found in favor of Detec tive Be nz as to his defe nse of qua lified immunit y .

The Honora

ble Arthur J

. Tarnow , Senior Un it e d St a tes District J udg e for the Easter n District * of Michig an, sitting by

desig nation.For the rea sons stated below, we aff irm the district court’s g rant of summary judgme nt as to all claims as we ll as to the issue of qualified immunity

.

P ROCEDURAL BACK GR OUND On May 17, 2011, Plaintiff- Ap p el lant L aTony a Meake ns filed her Complaint in the Cuy ahog a County Court of Common Pleas. De fe n d an t s remove d the case to the United States District Court for the Nor thern District of O hio on J une 21, 2012. Meake ns’ Complaint includes four claims: a fe d er al claim of unrea sonable sear ch and seizure; a feder al cl aim of m alicious prosec ution; an Ohio state claim of false arr est; and an Ohio

s t ate claim of malicious prosec ution. Meake ns has withdrawn the claim of fede ral maliciou s prosec ution. Appellant Br . at 4. Meake ns’ orig inal Complaint broug ht suit ag ainst six defe ndants, five of whom have be en dismiss ed from the ca se with prejudice . The re maining de fenda nt, Detec tive Be nz, filed a motion for summary judgme nt based upon a defe nse of qualified immunit y on Fe bruar y 13, 2012. On April 2 4 , 2 0 1 2 , t he District Court g rante d this motion for summary judgme nt, finding that Be nz was protec ted by

qualified immunity , and did not violate Mea ken’s f eder al and state rig hts. Meake ns appea ls the District Court’s finding s as to these violations as well as the qualified immunit y defe nse.

STATE MENT OF F ACTS Meake ns marrie d Duane Chisholm in April 2010. I n September 2010, the two beg an living toge ther in Meake ns’ Cleveland home, which s h e rente d, and share d with Chisholm

. Sometimebetwee n J anuar y 12 and Fe bruar

y 17, 2011, Meake ns evicted Chisholm from this h ome. On 1 Fe bruar y 16, 2011, Meake ns filed for divor ce f rom Chisholm

. On Fe bruar

y 18, 2011, at 8:52 a.m., Chisholm cal l ed t h e C l evela nd police. During this

emer g ency call, Chisholm stated that Meake ns had used a g un to shoot at him from a car driven by Meake ns’ nephew

. Cleveland poli c e o f f icer s Escano and Malizi ewski responde d to Chisholm ’s call. The o ff i ce rs took a statement from Chisholm reg arding the alleg ed shooting. Offic er Escano also wrote a repor t of the incident. Be nz was the police detec tive assig ned to t h i s ca s e. He and other detec tives spoke with C h isholm and obtained a sworn statement on Fe bruar y 25, 2011. Be nz revie wed police rec ord s showing that Chisholm and Meakens had called the police reg arding one anothe r numerous tim es in the previous two months. Be nz also found that Meake ns had filed domestic violence complaints ag ainst Chisholm

. Detec tive Be nz spoke with office r Escano who stated that he hear d what sounded like g unshots in the area

prior to re sponding to Chisholm’s emerg ency call. On Fe bruar

y 28, 2011, the case was prese nted to the prosec uting attorney , who deter mined t h at char g es would be filed ag ainst Meake ns and a war rant issued for her arr est. Pursuant t o t h at

war rant, Mea kens wa s arr ested on Mar ch 1, 2011. On Marc h 2, 2011, Be nz visited and interviewe d Meake ns at the city jail wher e she was held. During this interview, Meakens informed Benz t h at s h e had an alibi: Meake ns alleg ed she was in Chicag o visiti ng family at the time of the alleg ed shooting. Meake ns stated that she left Cleveland the night of Fe bruar

y 17 and returne d on Fe bruar y 21. As supporting evidenc e of this alibi, Meake ns g ave Detec tive Be nz a traff ic war ning ticket she rec eived in I ndiana and ATM or debit car d rec eipts.

This eviction was non-judicia l and involved no leg al ac tion. 1During the interview, Meake ns also provided Be nz with a copy of Chisholm ’s criminal rec o rd as

well as he r I llinois civil protective or der a g ainst Chishol m, which she re corde d in Ohio. On M arch 3, 2011, Meake ns was formally char g ed. On Marc h 8, the g rand jury indicted Meake ns for attempted murder, felonious assault, domestic violence, improperly handling firea rms in a motor vehicle , ag g rava ted menac ing, a nd menac ing by

stalking. Detec tive Be nz asser

ts that sometime afte r the indictment, he rec eived a voice messag e from Chisholm stating that he was moving to North C arolina to stay wit h t h i s sister. Be nz rela y ed thi s messag e to the prose cutor. All cha rg es ag ainst Meake ns were dropped on Ma rch 14, 2011.

DISCUSSIO N Stand ard of Review This Court revie ws the district court’s g rant of summary judgme nt d e n o v o . Johnson v. United States Postal Serv. , 64 F.3d 233, 236 (6th Cir. 1995). The specific issue of q ualified immunit y is a question of law to also be re viewed de novo by this Court. Gardenhire v. Schubert , 205 F.3d 303, 310 ( 6th Cir. 2000).

Summ ary Judgm ent A m otion for summ ary judgme nt may be gra nted under Fe d. R. Civ. P . 56(c) when there is

no g enuine issue as to any materia l fac t, and the moving party is entitled to judgme nt as a matter of law. Summary judgme nt is also proper wher e the m o v i n g party shows that the non-movi ng party is unable to meet its burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 326 (1987). Fa cts and infere nces must be viewed in the light most favor able t o t he non-moving party

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574 (1986). Howeve r, the non-moving party mustprese nt “ specific fac ts showing that there is a g enuine issue for trial” that demonstrate that there is

more than “some meta

phy sical doubt as to the mater ial fac ts.” Moore v. Philip Morris Cos., Inc. , 8 F.3d 335, 339- 40 (6th Cir. 1993) (interna l citations omit ted).

Quali fi ed Im m uni ty “The doctrine of qualified immunit y protec ts g overnme nt officia ls ‘fr om liability fo r civil damag es insofar as their conduct does not violate clea rly established statutory or constitutional rig hts of which a reasonable person would have known.’” Pearson v. Callahan , 555 U.S. 223, 231-232 (2009) ( citing Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). I n addre ssing a g overnme nt officia l’s qualified immunit y claim, the Court first must decide whether the fac ts a plaintiff has alleg ed or shown make out a violation of a constitutional rig ht. Pearson , 555 U.S. at 232. Second, the Court must consider whether the rig ht at issue was clearly established at the t i m e o f defe ndant' s alleg ed misconduct. Id. The Court may assess these two fac tors in the most efficie nt order a nd manner

. Id. at 242. When qualified immunit y is applied in the execution of an arr est war rant, g overnme nt ag ents

are g ener ally enti t led to rely on a judicially secur ed war rant for immunit y from liability for unconstitutional arr ests. Y ancey v. Carroll County , 876 F.2d 1238, 1243 (6th Cir. 1989) ( citing Malley v. Briggs , 475 U.S. 335 (1986)) ; see also E l l i s o n v. Balinski , 625 F.3d 953, 959 (6th Cir. 2010). Ther efor e, “[o]nly wher e the wa

rra nt application is so la cking in indicia of proba ble ca use

as to rende r officia l belief in its exis tence unrea sonable, will the shield of immunit y be lost.” Malley , 475 U.S. at 344-45.The Four th Amendment rig ht protec ting citizens from unrea sonable arr est is clea rly established law. There fore , the i ssue of qualified im munity turns on the obj ective rea sonablene ss of B enz’s finding of proba ble ca use for Meake ns’ ar

rest.

F ourth Am endm ent Violation An arr est war

rant is valid only if supported by probable cause . “A police office r has probable

cause only when he discovers rea sonably reliable information that the suspect has com m i tted a crime...the office r must consider the totality of the circ umstances, rec og nizi ng both the inculpatory and exc u l p at ory evidenc e, befor e deter mining if he has probable cause to make an arr est.” Gardenhire v . Schubert , 205 F.3d 303, 318 ( 6th Cir. 2000). Meake ns first arg

ues that Detec tive Be nz did not ha ve sufficie nt pr obable cause to suppor t

an arr est war

rant beca use of Chisholm ’s lack of cre dibilit y . I n assessing probable cause based upon witness acc ounts, this C ourt has held that: [a] n ey ewitness identification will constitute sufficie nt probable cause unless, at the time of the arr est , t h er e i s an appar ent rea son for the office r to believe that the ey ewitness was ly ing, did not acc urate ly descr ibe what he had seen, or was in some fashion mistaken reg arding his rec ollection of the confr ontation. This comports with the g ener al notion that, si n ce ey ewitnesses’ statements are based on firsthand observa tions, they are g ener ally entitled to a presumption of reliability and vera city

. Ahlers v. Schebil , 188 F.3d 365, 370 (6th Cir. 1999) (citations and internal quotation marks omitted) (finding sufficie nt probable cause wher e there was a cre dible witness and a possible opportunity for the cr ime to occur ). Be n z arg ues t hat he rig htly relied upon Chisholm ’s consist ent t estimony

. Be nz also n o t es that Meake ns and C hisholm’s history of dom estic di sputes could provide a “conte x t in which one might expect that a violent a ct like the one a lleg ed mig ht occur .” Appe llee B r. at p. 22.S ec ondly , Meake ns arg ues that Detec tive Be nz had no other evidenc e to corr oborate

Chisholm ’s acc usations, noting that there was no phy sical evidenc e found at the alleg ed crime scene and no other witnesses. Meake ns takes particula r issue with Detec tive Be nz’ relianc e on the g unshot sounds, arg

uing that Offic er Escano and Be nz’s accou n t of the number of g unshots hear d do not

corr espond. Next, Meake ns arg ues that evidenc e of her alibi neg ates any other i n cu l p at o ry evidenc e g ather ed by Be nz. I n considering a suspect’s possible alibi in an assessment of probable cause , this Court has held that “[a] suspect' s satisfac tory explanation of suspicious behavior is cer tainly a fac tor which law enfor ceme nt office rs are entitled to take into considera tion in making the deter

mination whether probable cause to arr est exis ts.” Gardenhire v. Schubert , 205 F.3d 303, 318 (6th Cir. 2000) ( citing Criss v. C ity of Kent , 867 F.2d 259, 262 (6th Cir. 1988)). At the s ame tim e, the C o u rt has found that an office r i s “under no obliga tion to g ive any cre dence to a suspect' s story nor should a plausible explanation in any sense require the office r to fore g o arr est pending further investiga tion,” if the initially discovere d fac ts provide probable cause . Criss , 867 F.2d at 263; see Ahlers v. Schebil , 188 F.3d 365, 370 (6th Cir. 1999) (“[O]nce [t he office rs] established probable cause ... t h ey we re under no duty to continue their investigat i o n and discover the information which [t he suspect] believes would have exculpated him.”); see also Radvansky v. City of Olmsted Falls , 395 F.3d 291, 308 (6th Cir. 2005) (holding that office rs lacke d probable cause for the war rantless arr est of suspect at the alleg ed cr ime scene ). Her e, Meake ns asser

ts that she provided Be nz documents supp o rt i n g h er alibi at her first meeting with him, which occur red afte r her arr est. Be nz arg ues that he did not find these documents to be persua sive. Detec tive Be nz did not nece ssarily have a duty to discover Meake ns’ alibi or thesedocuments prior to her arr est, nor does this alleg edly exculpatory evidenc e neg ate a previous finding

of proba ble ca use. 2 Finally , Meake ns arg ues that Detec tive Be nz fail ed t o p rovi de all rele vant exculpatory evidenc e to the prosec utor. Meake ns arg ues that this failure was rec kless, there fore falling outside the bounds of an office r’s rea sonable conduct. See Syke s v. Anderson , 624 F.3d 294, 305 (6th Cir. 2010). I n opposition, Be nz arg ues that he provided all available evidenc e to the prosec utor and made no false or

misleading statements. Whil e Detec tive Be nz could have conducte d a more thoroug h investiga tion, see Ahlers , 188 F.3d at 372, Chisholm ’s statement along with the appar ent conflict betwee n Chisholm and Meake ns could lead a rea sonably competent office r to make a finding of probable cause . See Malley , 475 U.S. at 342. There fore , the Court finds that there was sufficie nt probable cause to justify Meake ns’ arr est, and that Meake ns has failed to show that Be nz was objectively unrea sonable in making this a rre st. Acc ording ly , we aff

irm the district court’s finding of summary judgme nt in favor of Be nz as to the Four th Amendment claim as w ell as the a pplication of qualified immunity

.

State Law Claims 1. Malicious Pr osecution Under Ohio law, the elements of the tort of ma licious criminal prosec ution are “(1) malice in instit uting or continuing the prosec ution, (2) lack of probable cause , and (3 ) termination of the

Be nz also arg ues that the g rand jury ’s indictment of Meake ns is conclusive as to the finding 2 of probable cause . Whil e the indictment may be sug g estive of probable cause , this Co u rt has specific ally held that “af

ter-the -fa ct g rand jury involvement cannot serve to validate a prior arr est.” Radvansky , 395 F.3d a t 307 n.13.prosec ution in the favor of the acc used.” Thacker v. City of Columbus , 328 F.3d 244, 260-261 (6th

Cir. 2003) (citations and inter nal quotation marks omitted). While malice is an esse ntial element, “t he want of probable cause is the rea l g ist of the action. Thus, if the lack of pro b ab l e ca u s e i s demonstrated, the leg al infere nce may be draw n that the proce eding s wer e actua ted by malice.” Id. at 261 (citations om itted). “Ohio law define s probable cause i n substantially the s ame way that it is de fined under the Four

th A mendment.” Id. There fore , the Court ha s found that insofar as there

was probable cause for the arr est of an i n d ividual, that individual’s state law claim for malicious prosec ution fails. Id. Be cause Be nz possesse d s ufficie nt probable cause to justify the application for and execution of a w arr ant for Me akens’ arr est, Meake ns’ state c laim of malicious prosec ution fails.

2. F alse Arr est Under Ohio law, a claim of false arr est claim require s “(1) a detention of the person, and (2)

an unlawful detention.” Thacker , 328 F.3d at 261 (citations omitted). The Ohio Court of Appea ls has stated that “[t] he essenc e of the tort of false arr est is the depriving of a person of his or her liberty without lawful justification. Specifica lly , a plaintiff must show only that he or she was detained and that the detention was unlawful. The tort does not require proof of malice, motive or lac k o f probable cause .” Harve

y v. Horn , 514 N.E.2d 452, 454 (Ohio Ct. App. 1988). Howeve r, the exis tence of probable cause in the form of a valid arr est war rant is a defe nse to an office r’s liability

. Eisnnicher v. Bob E

vans Farms Re

staurant , 310 F. Supp. 2d 936, 957 n.3 (S.D. Ohio 2004). Thus, a finding of proba

ble ca use shields Dete ctive B enz from liability

.

CONCLUSIONFor the re asons stated a

bove, we AFF I RM the judgment of the district court.