Ramsey v. Rivard

110 F.4th 860

Dominique RAMSEY; Travis Sammons, Plaintiffs-Appellees, v. David RIVARD, Defendant-Appellant.

No. 23-1941

United States Court of Appeals, Sixth Circuit

Decided and Filed: August 1, 2024

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:20-cv-13124—David M. Lawson, District Judge.

ON BRIEF: John G. Fedynsky, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Wolfgang Mueller, WOLF MUELLER LAW, Novi, Michigan, for Appellees.

Before: MOORE, COLE, and MATHIS, Circuit Judges.

OPINION

COLE, Circuit Judge.

Plaintiffs Dominique Ramsey and Travis Sammons were incarcerated for over five years for the murder of Humberto Casas. After the Michigan appellate courts determined that their convictions were based on an improper identification, the prosecution dismissed the case and Ramsey and Sammons were released.

Ramsey and Sammons sued David Rivard, the Michigan State Police sergeant who oversaw the identification procedure, bringing federal claims under the Due Process Clause and the Fourth Amendment via 42 U.S.C. § 1983 for malicious prosecution, fabrication of evidence, and unduly suggestive identification, as well as a claim for malicious prosecution under Michigan law. The district court denied Rivard's motion for summary judgment, determining that he was not entitled to absolute or qualified immunity for the federal claims nor to governmental immunity for the state law claim. Rivard brought this appeal. We dismiss Rivard's appeal of the denial of qualified immunity as to the federal malicious prosecution claim and the fabrication of evidence claim for lack of appellate jurisdiction. We affirm the district court's denial of summary judgment as to all remaining claims.

I.

In this interlocutory appeal, where our jurisdiction is narrow, we defer to the district court's factual determinations and inferences, which are taken in the light most favorable to the plaintiffs to the extent supported by the record. Adams v. Blount County, 946 F.3d 940, 948 (6th Cir. 2020); DiLuzio v. Village of Yorkville, 796 F.3d 604, 611 (6th Cir. 2015). In doing so, "ideally we need look no further than the district court's opinion for the facts and inferences cited expressly therein." DiLuzio, 796 F.3d at 611. With the notable exception of the anonymous call described in the follow up police report, the facts below are taken from the district court's opinion.

Humberto Casas was killed in Saginaw, Michigan on June 21, 2015. DyJuan Jones, then sixteen years old, witnessed the shooting from the backseat of his mother's car. Rosie Watkins witnessed the shooting from her own car.

According to Jones, the assailants drove a light grey Jeep with a license plate that included the letters "CE" or "GE." A follow up police report stated that an anonymous caller saw a grey Jeep leaving the scene with the license plate DFQ9953. (Police Dept. Follow Up Report July 3, 2015, R. 63-4, PageID 1168.) Surveillance video compiled from nine cameras near the scene showed a Jeep (or two or more similar Jeeps), but the video did not show the shooting or any license plate numbers.

Jones described the driver as a Black man with a long beard, wearing a white shirt and appearing to weigh about 320 pounds. Watkins thought the driver had an average build. Jones described the second assailant as a bald, Black man wearing black pants and a white t-shirt.

Jones saw the second assailant fire three shots at Casas, stop when his gun jammed, and then fire more shots moments later. Jones did not see the shooter enter the vehicle, but saw the Jeep speed away. Jones and his mother, a nurse, rendered aid to Casas at the scene. Nevertheless, Casas died from his injuries.

Saginaw police stopped Dominique Ramsey and Travis Sammons about 10 to 20 minutes after the shooting. Ramsey and Sammons were driving a silver Jeep with a license plate number DFQ9593. Ramsey was not bald and had short stubble. Ramsey was 5'5" tall, 158 pounds, and was wearing a white t-shirt and blue jeans. Sammons was 5'4" tall, 125 pounds, and was wearing a white tank top with black basketball shorts. Sammons also was not bald.

Ramsey and Sammons were taken to the police station. That evening, Jones and his mother went to the police station. David Rivard, a Michigan State Police sergeant, decided to organize a show-up identification of only Ramsey and Sammons rather than a corporeal line-up where Ramsey and Sammons would stand next to five other individuals. Rivard discussed his plan with the assigned prosecutor, who told him that the identification procedure could not be suggestive. Rivard placed Ramsey and Sammons in separate 10 by 10 feet interview rooms. Rivard had Jones and his mother each walk down the hallway and look into the rooms. It is undisputed that Jones's mother did not identify either plaintiff.

Jones has maintained that he could not and did not identify Ramsey or Sammons. Rivard, however, prepared an investigation report that claimed Jones did identify Sammons as the shooter, but did not identify Ramsey. Rivard did not otherwise record or document Jones's purported identification of Sammons. No one witnessed the conversation between Jones and Rivard. Despite the purported identification, Ramsey and Sammons were released after the show-up.

Later, Ramsey and Sammons were charged with open murder, conspiracy to commit murder, possessing a firearm after a felony conviction, and carrying a firearm during a felony. At the preliminary hearing and at trial, Jones denied identifying Sammons, although he did testify about his recollection of the shooting and described the assailants. Rivard testified that Jones identified Sammons. Additionally, the prosecution used Rivard's report to rebut and impeach Jones's testimony.

Sammons moved to suppress the identification. The trial court allowed the identification, finding it to be unnecessarily suggestive but still reliable. The jury found Ramsey and Sammons guilty of conspiracy to commit murder, but not guilty of open murder and the firearms charges. The trial court sentenced Sammons to life in prison.

The trial court granted Ramsey's motion for a directed verdict, concluding that the jury's verdict was against the great weight of the evidence, but the state successfully appealed. Sammons appealed his conviction and sentence. Sammons's appeal reached the Michigan Supreme Court, which vacated his conviction and remanded the case for a new trial, finding the show-up identification to be unduly suggestive and unreliable. The appellate court eventually remanded Ramsey's case for a new trial based on the same error. Ramsey and Sammons remained incarcerated throughout the course of their appeals.

In the trial court, the prosecutor filed a motion for nolle prosequi based on insufficient evidence to secure a conviction. Ramsey and Sammons were released on October 30, 2020 after more than five years and four months in custody.

Ramsey and Sammons sued Rivard, his supervisor, the prosecutor, and Saginaw County. The parties filed cross-motions for summary judgment. The district court denied summary judgment to Rivard as to the plaintiffs' federal claims for: (1) malicious prosecution under federal law, (2) fabrication of evidence, and (3) unduly suggestive identification, and their state law claim for (4) malicious prosecution. Rivard brought this appeal, challenging the district court's denial of absolute and qualified immunity for the federal claims and of governmental immunity for the state law claim.

II.

We have jurisdiction over an appeal from a denial of a motion for summary judgment based on absolute or qualified immunity "to the extent that it turns on an issue of law." Watkins v. Healy, 986 F.3d 648, 658 (6th Cir. 2021) (quoting Mitchell v. Forsyth, 472 U.S. 511, 525-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Summary judgment is proper if the movant shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The district court should deny summary judgment if there are "disputes over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

We review de novo the denial of absolute or qualified immunity at summary judgment, using the same standard as the district court. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009). Under our limited jurisdiction here, however, we may consider Rivard's absolute and qualified immunity appeals only "to the extent they raise pure questions of law." Id. at 373. Michigan law governs our appellate jurisdiction over Rivard's challenge to the denial of governmental immunity as to the Michigan malicious prosecution claim. Younes v. Pellerito, 739 F.3d 885, 890 (6th Cir. 2014).

A.

Absolute testimonial immunity bars claims based on the defendant's testimony in a judicial proceeding. Hinchman v. Moore, 312 F.3d 198, 205 (6th Cir. 2002). We have "consistently held that nontestimonial, pretrial acts do not benefit from absolute immunity, despite any connection these acts might have to later testimony." Gregory v. City of Louisville, 444 F.3d 725, 738-39 (6th Cir. 2006). Rivard bears the burden of showing that absolute immunity applies to the allegations relating to the show-up identification and his allegedly fabricated report. Moldowan, 578 F.3d at 376 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)).

Ramsey and Sammons argue that Rivard waived the absolute immunity issue because he only made "perfunctory mention of it in his primary brief [before the district court]." (Appellee Br. 30 (citing Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013)).) Kuhn applies to the party's opening brief on appeal, not the briefing below. 709 F.3d at 624. We will consider an issue on appeal "as long as [it] was...