UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM HELMER,

Plaintiff,

v.

BRIAN GUEST, KATHLEEN SOLOMON,

OSCODA COUNTY, KEVIN GRACE,

DAVE STENZEL, ED POKRZYWNICKI,

and RONALD NIGHTINGALE

Defendants.

 /

Case No. 09-11697

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on February 3, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

On May 4, 2009, William Helmer (“Plaintiff”), a state prisoner currently incarcerated

at the Bellamy Creek Correctional Facility, in Ionia, Michigan, filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983. In his Amended Complaint, Plaintiff alleges that

Defendants Guest and Solomon used false evidence against him in a court proceeding. 

Plaintiff further alleges that he was assaulted by Defendant Guest. The Court has referred

this action to Magistrate Judge Mona K. Majzoub for all pretrial proceedings.

Presently before the Court are two motions to dismiss or for summary judgment with

regard to Plaintiff’s reinstated false testimony claim, filed by Defendants Guest and

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Solomon. On November 24, 2010, Magistrate Judge Majzoub issued a Report and

Recommendation (“R&R”) in which she recommends that this Court grant these motions

and dismiss Defendant Solomon from this action. Magistrate Judge Majzoub concludes

that Plaintiff’s false document claim against Defendant Guest in his individual capacity

fails, as any false statements in the police report or affidavit did not affect the finding of

probable cause to charge Plaintiff with assaulting a police officer. As for Plaintiff’s false

document claim against Defendant Guest in his official capacity, Magistrate Judge

Majzoub concludes that the Complaint fails to allege facts sufficient to show that Oscoda

County maintained a policy, practice, or custom of falsifying documents, or that such a

policy caused Plaintiff’s injuries. Magistrate Judge Majzoub concludes that Plaintiff’s

false testimony claims should be dismissed because Defendants Guest and Solomon enjoy

absolute immunity from such claims.

Plaintiff submitted objections to the R&R on December 6, 2010, which were filed

with this Court on December 8, 2010. Defendants Guest and Solomon filed responses to

Plaintiff’s objections on December 28, 2010.

Plaintiff’s first objection is that Defendants’ motions are untimely, as they were filed

after the April 9, 2010 cutoff for dispositive motions. To reject Defendants’ motions on

this basis would be manifestly unfair and contrary to this Court’s previous Order. On June

9, 2009, the Court, acting sua sponte, dismissed Plaintiff’s false testimony claims pursuant

to 28 U.S.C. § 1915. Plaintiff moved for reconsideration on March 10, 2010, and the

Court reinstated these claims in an Opinion and Order dated June 8, 2010. Defendant

Guest then sought reconsideration of the June 8, 2010 Order. The Court denied Defendant

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Guest’s motion for reconsideration on July 6, 2010, but noted that dispositive motions

could still be filed on the reinstated claims. See July 6, 2010 Op. and Order at 3. Guest

and Solomon filed their motions for summary judgment on July 28, 2010 and August 24,

2010, respectively. Because the Court’s Order of July 6, 2010 specifically permitted

dispositive motions on the reinstated claims after the April 9, 2010 cutoff date, the Court

finds that Defendants’ motions were timely filed.

Plaintiff objects to Magistrate Judge Majzoub’s failure to note the alleged assault by

Guest. He also claims that the assault occurred in the prisoner lock-up. Because these

facts are irrelevant to the false testimony claims resolved by the R&R, this objection

merits no further discussion here.

Plaintiff objects to a statement in the R&R regarding an attempted murder charge. 

The R&R, however, does not purport to establish that Plaintiff was charged with attempted

murder. Rather, the R&R notes that a statement made in support of the criminal complaint

referred to an attempted murder case. See R&R at 3. The R&R is accurate in this regard,

even if the statement referred to is untrue. Thus, the Court rejects Plaintiff’s objection.

Plaintiff next objects to the R&R’s statement that he was “subsequently arrested and

charged with the offense of assaulting / resisting / obstructing a police officer.” Plaintiff

states that he was arrested twice, on December 18, 2008, and again on April 9, 2009. It is

not clear to the Court how Plaintiff’s objection calls the R&R’s statement into question, or

how it is relevant to Plaintiff’s false testimony claims.

Plaintiff objects to the R&R’s statement that “[t]he record shows that the assaulting /

resisting / obstructing a police officer charge was dropped ‘pursuant to the plea agreement’

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entered in Plaintiff’s domestic violence case.” Again, it is unclear how this dispute is

relevant to Plaintiff’s false testimony claims.

Plaintiff objects to Magistrate Judge Majzoub’s conclusion that Defendant Guest is

not liable for malicious prosecution because he did not make the decision to prosecute. 

Plaintiff contends that false statements in Guest’s police report influenced the prosecutor’s

decision to bring the assault charge. A police officer may be responsible for commencing

criminal proceedings for purposes of a malicious prosecution claim where he made,

influenced, or participated in the decision to prosecute. Sykes v. Anderson, 625 F.3d 294,

311 (6th Cir. 2010). An officer’s submission of misleading investigatory materials may

result in liability only where the misrepresentations can be said to have influenced the

decision to institute criminal proceedings. Id. at 314. Plaintiff alleges that Guest’s police

report falsely states that he was in court regarding an attempted murder charge. Am.

Compl. ¶ 1. This statement is irrelevant to a determination of probable cause to charge

Plaintiff with assault, as it does not matter whether Guest was in court concerning

attempted murder or some other crime. Guest testified that Plaintiff attacked him at the

preliminary examination, establishing probable cause for the assault charge. Because

Guest’s allegedly false statement did not make or influence the prosecutor’s decision to

institute criminal proceedings, he cannot be liable for malicious prosecution under § 1983.

Plaintiff objects to Magistrate Judge Majzoub’s conclusion that any false statements

regarding an attempted murder charge were immaterial and unnecessary to find probable

cause to charge Plaintiff with assault. As stated above, the Court concludes that the

allegedly false statements were irrelevant to a determination of probable cause. Plaintiff’s

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malicious prosecution claim therefore fails as a matter of law.

Plaintiff disagrees with Magistrate Judge Majzoub’s conclusion that the Complaint

fails to allege facts sufficient to show that Oscoda County maintained a policy, practice, or

custom of falsifying documents that was the moving force behind Plaintiff’s alleged

injuries. Section 1983 does not “impose liability vicariously on governing bodies solely

on the basis of the existence of an employer-employee relationship with a tortfeasor.” 

Monell v. Dep’t of Social Servs., 436 U.S. 658, 692, 98 S. Ct. 2018, 2036 (1978). The

Court concludes that Plaintiff has failed to state any facts establishing that Defendant

Guest’s alleged conduct reflected an official policy or custom of Oscoda County.

Plaintiff next objects to Magistrate Judge Majzoub’s conclusion that Defendant

Guest is entitled to absolute immunity. Police officers testifying as witnesses are entitled

to absolute immunity from liability for damages based on their testimony. Briscoe v.

LaHue, 460 U.S. 325, 335-36, 103 S. Ct. 1108, 1115-16 (1983). Plaintiff cites Kalina v.

Fletcher, 522 U.S. 118, 118 S. Ct. 502 (1997), for the proposition that there is a

complaining witness exception to absolute testimonial immunity. Kalina, however,

defined an exception to prosecutorial immunity, holding that a prosecutor performing the

role of a complaining witness was not entitled to absolute prosecutorial immunity. Id. at

129-131, 118 S. Ct. at 509-10. Plaintiff also cites Moldowan v. City of Warren, 570 F.3d

698 (6th Cir. 2009), but his reliance is misplaced. The Moldowan court held that while

there is an exception to absolute testimonial immunity for an official performing the

function of a complaining witness, the exception does not extend to testimony delivered at

trial. Id. at 735. “As with any witness, police officers enjoy absolute immunity for any

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testimony delivered ‘at adversarial judicial proceedings.’” Id. at 735-36 (quoting Gregory

v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006)). Because Plaintiff’s claim is based

on Guest’s allegedly false testimony, rather than his role as a complaining witness, Guest

is entitled to absolute testimonial immunity. The Court rejects Plaintiff’s objection.

Finally, Plaintiff objects to Magistrate Judge Majzoub’s conclusion that Defendant

Solomon is entitled to absolute immunity because she was acting in a prosecutorial role. 

Plaintiff points to the incident report created by Defendant Nightingale, noting that it lists

Solomon as a witness. The Amended Complaint, however, claims only that Solomon

knowingly elicited false testimony from Guest. Am. Compl. ¶ 10. Any statement that

Solomon may have made to Nightingale is therefore irrelevant to Plaintiff’s claim against

Solomon. The elicitation of testimony was clearly within the scope of Solomon’s duties in

prosecuting a criminal case. Accordingly, the Court concludes that Solomon is entitled to

absolute prosecutorial immunity from liability under § 1983. See Imbler v. Pachtman, 424

U.S. 409, 431, 96 S. Ct. 984, 995 (1976).

For the reasons stated above, the Court concurs with the conclusions reached by

Magistrate Judge Majzoub and rejects Plaintiff’s objections to the R&R.

Accordingly,

IT IS ORDERED that Defendant Guest’s Motion for Summary Judgment With

Regard to Plaintiff’s Reinstated False Testimony Claim is GRANTED;

IT IS FURTHER ORDERED that Defendant Solomon’s Motion for Summary

Judgment With Regard to Plaintiff’s Reinstated False Testimony Claim is GRANTED;

IT IS FURTHER ORDERED that Defendant Solomon is dismissed from this

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action.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

William Helmer, #140677

Bellamy Creek Correctional Facility

1727 West Bluewater Highway

Ionia, MI 48846

D. Randall Gilmer, Esq.

G. Gus Morris, Esq.

Adam Purnell, A.A.G.

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