                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0177n.06

                                           No. 15-6384


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
AMY SANDERS,                                             )                     Apr 04, 2018
                                                         )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
LAMAR JONES,                                             )      COURT FOR THE WESTERN
                                                         )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE:        SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. The Supreme Court has vacated our judgment in this

case and remanded for further consideration in light of Manuel v. Joliet, 580 U.S. ----, 137 S. Ct.

911 (2017). For the following reasons, we conclude that we lack interlocutory jurisdiction and

remand for further proceedings.

       In our prior decision we made two rulings. First, we held that, to the extent that Plaintiff

Amy Sanders’s malicious prosecution claim was based on Defendant Lamar Jones’s allegedly

false grand jury testimony, Jones was entitled to absolute immunity under Rehberg v. Paulk,

566 U.S. 356, 369 (2012). Second, we held that, to the extent Sanders’s malicious prosecution

claim was based on Jones’s allegedly false police report, it failed because she could not rebut the

grand jury indictment’s presumption of probable cause without using Jones’s grand jury

testimony, which carries an evidentiary privilege per Rehberg. See id. (grand jury immunity may
No. 15-6384
Sanders v. Jones

extend to use of “evidence of the witness’ testimony to support any other § 1983 claim

concerning the initiation or maintenance of a prosecution”); see also Webb v. United States,

789 F.3d 647, 660 (6th Cir. 2015) (“As a general rule, ‘the finding of an indictment, fair upon its

face, by a properly constituted grand jury, conclusively determines the existence of probable

cause.’”) (quoting Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006)).

       After our ruling, the Supreme Court rejected the notion that “a grand jury indictment or

preliminary examination” serves to “expunge” any possible “Fourth Amendment claim.”

Manuel, 137 S. Ct. at 920 n.8. Applying Manuel, this court held in King v. Harwood, 852 F.3d

568 (6th Cir. 2017), cert. denied, 2018 WL 311323 (U.S. Jan. 8, 2018), that the presumption of

probable cause created by a grand jury indictment is rebuttable “where (1) a law-enforcement

officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes

false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence;

(2) the false statements and evidence, together with any concomitant misleading omissions, are

material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and

omissions do not consist solely of grand-jury testimony or preparation for that testimony (where

preparation has a meaning broad enough to encompass conspiring to commit perjury before the

grand jury).” Id. at 587–88. Here, Jones’s police report set the prosecution in motion because it,

along with the identification made by the confidential informant, made up the entirety of the

evidence leading to Sanders’s indictment. Because there is a genuine factual dispute as to

whether Jones knowingly or recklessly made false statements in his police report, absolute

immunity no longer categorically bars Sanders’s Fourth Amendment claim to the extent that it is

based on Jones’s allegedly false police report.




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Sanders v. Jones

       Jones maintains that even if he is not entitled to absolute immunity, he is entitled to

qualified immunity on Sanders’s malicious prosecution claim.         Qualified immunity shields

government officials from liability for civil damages unless the plaintiff shows that: (1) viewing

the evidence in the light most favorable to the plaintiff, the official violated a statutory or

constitutional right, and (2) the right was clearly established at the time of the challenged

conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

       Clearly Established Right. As to the second element, it is settled that:

       [I]ndividuals have a clearly established Fourth Amendment right to be free from
       malicious prosecution by a defendant who has “made, influenced, or participated
       in the decision to prosecute the plaintiff” by, for example, ‘‘knowingly or
       recklessly” making false statements that are material to the prosecution either in
       reports or in affidavits filed to secure warrants.

King, 852 F.3d at 582–83 (and cases cited therein).         This right includes protection from

malicious prosecution based on knowing or reckless misidentification. See Webb, 789 F.3d at

662; Gray v. Cuyahoga Cty. Sheriff’s Dep’t, 150 F.3d 579, 582–83 (6th Cir. 1998). While a law

enforcement officer is generally entitled to rely on another’s eyewitness identification to

establish probable cause, he cannot rely on eyewitness identification where he has serious reason

to doubt the identification based on other evidence within his knowledge. Ahlers v. Schebil,

188 F.3d 365, 370–71 (6th Cir. 1999).

       Violation of a Constitutional Right. This leaves the first element. Jones claims there was

probable cause for Sanders’s prosecution (and therefore no Fourth Amendment violation)

because the confidential informant positively identified Sanders as the person who had sold him

drugs when Jones showed him Sanders’s driver’s license photograph. But Sanders claims that

when Jones viewed the video of the controlled buy before delivering his report to the prosecutor,

he could see that the suspect did not resemble Sanders. As Sanders points out, Jones agreed in


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his deposition testimony that a screenshot taken from the video of the controlled buy “does not

depict Amy Sanders,” and “it don’t look like Amy Sanders.” Jones argues that his deposition

testimony does not amount to an admission that he watched the video and knew the suspect did

not look like Sanders, but simply that the later-produced screenshot from the video did not depict

Sanders. But this argument attacks the sufficiency of Sanders’s evidence—specifically, whether

Jones’s deposition testimony can justify a fact finding of knowledge or recklessness at the time

he delivered his report to the prosecutor. Because this case turns on that factual dispute, we lack

interlocutory jurisdiction. See Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 (6th Cir. 2013)

(“A district court’s denial of qualified immunity is an appealable final decision under § 1291

only ‘to the extent that it turns on an issue of law.’”) (quoting Estate of Carter v. City of Detroit,

408 F.3d 305, 309 (6th Cir. 2005)). Taking Sanders’s facts “at their best,” id. at 680, Jones’s

statement permits an inference that Jones knew or strongly suspected from viewing the video that

the person who sold the confidential informant the drugs was not Sanders, or at least, did not

look like Sanders. Because Jones contests this critical factual issue, there is no legal question for

us to review at this juncture.

       Indeed, the district court found that “Jones himself acknowledged upon a closer

inspection of the footage that it was not Sanders who participated in the drug deal. Thus, the

question becomes whether Defendant ‘acted with something akin to deliberate indifference in

failing to ascertain that [the plaintiff] . . . was not the person wanted.’” (quoting Gray, 150 F.3d

at 582). The district court thus found that Jones’s deposition testimony regarding the screenshot

of the video raised a “genuine” issue as to whether Jones recklessly misidentified Sanders as the

person who sold drugs to the confidential informant. See Romo v. Largen, 723 F.3d 670, 674

(6th Cir. 2013) (“In the Supreme Court’s words, ‘a defendant, entitled to invoke a qualified


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Sanders v. Jones

immunity defense, may not appeal a district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets forth a “genuine” issue of fact for trial.’”)

(quoting Johnson v. Jones, 515 U.S. 304, 31–20 (1995)). In other words, a summary judgment

order that determines “only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or

may not, be able to prove at trial” is not appealable. Johnson, 515 U.S. at 313. It does not

appear that the district court’s determination was “blatantly and demonstrably false” such that we

could ignore it and retain jurisdiction, because neither the screenshot nor the video are in the

record. See Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496 (6th Cir. 2012). The district

court will have to factor this problem of missing evidence into its calculus when resolving this

case on remand.

       We therefore REMAND this matter to the district court for further proceedings in light of

this opinion.




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