                          STATE OF MICHIGAN

                            COURT OF APPEALS



KEVIN SCHILBE,                                                       UNPUBLISHED
                                                                     November 10, 2015
               Plaintiff-Appellant,

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

               Defendants-Appellees.


Before: STEPHENS, P.J., and CAVANAGH and MURRAY, JJ.

PER CURIAM.

        Plaintiff was arrested and criminally charged with the theft of a cell phone that belonged
to defendant Hollie Kishner (a/k/a Kushner), an employee at defendant Henry Ford Health
System (“HFHS”). The theft allegedly occurred when plaintiff visited HFHS to schedule a
medical procedure. The criminal charge was later dismissed. Plaintiff 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 imprisonment, and malicious
prosecution. The trial court granted defendants’ motion for summary disposition under MCR
2.116(C)(10) and dismissed the case. Plaintiff appeals as of right. We affirm.

                                            I. FACTS

        Plaintiff met with Kishner, an intake scheduler at HFHS, to schedule a surgical procedure
to remove polyps on his throat. Within 5 minutes after plaintiff 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 Kevin.” 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 referral 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 receptacle near her office. Johnson 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 sell 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 being released to the custody of police officers from the Detroit
Police Department (DPD).

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        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 disposition 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, depositions, 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 of 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 issues 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 deprivation of any rights,
privileges, or immunities secured by the Constitution and laws’ because of the actions of another
person acting ‘under color of any statute, ordinance, regulation, 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 color 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, seizing, 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 custody and subjects the person arrested to the actual
       control and will of the person making the arrest. The act relied 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 under § 1983, we likewise find it
unnecessary to determine whether defendants, and particularly Johnson, may be considered a
state actor for purposes of § 1983.


                                                 -2-
         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, viewed in a light most favorable to
plaintiff, supports plaintiff’s position that he was effectively arrested, and that his detention
exceeded the bounds of a permissible Terry2 stop, which is generally limited to a brief, on-the-
scene detention. People v Custer, 465 Mich 319, 327; 630 NW2d 870 (2001).

       A false arrest is an illegal or unjustified arrest, meaning that 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 explained:

                 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 based 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 actually have been convicted is irrelevant because
         actual innocence is not an element 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 rule 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 example
                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 false
                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 circuit court found that “ample” probable cause
         existed for the arrests. Where the facts are undisputed, the determination whether
         probable cause exists is a question of law for the court to decide. 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).


                                                 -3-
       809 (1986). . . . Probable cause that a particular person has committed a crime “
       ‘is established by a reasonable 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 capable of being
       precisely defined; rather, it is a commonsense concept dealing with practical
       considerations of everyday life that must be viewed from the perspective 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 at the moment of arrest. Brewer,
132 Mich App at 527.

        The undisputed evidence established that the following relevant 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 plaintiff 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 distinctive “scratchy” quality; and (4)
Johnson’s investigation revealed that a call had been made from plaintiff’s phone to Dorrin, who
informed Johnson that plaintiff had called him after the telephone went missing to ask if Dorrin
wanted to buy a phone for $20. Plaintiff’s presence at the time and location where the phone
was last seen before it went missing established that he had the 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 distinctive quality, established a reasonable ground for believing
that plaintiff had taken Kishner’s phone. That suspicion was further supported when Johnson
investigated a call that had been made from plaintiff’s phone and the recipient of that call
confirmed that he had recently received a call from plaintiff, who asked him if he wanted to buy
a phone.3 These facts established probable cause for believing that plaintiff had stolen Kishner’s
cell phone.

       Although plaintiff correctly observes that a motion for summary 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 it 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 determining if there was probable
cause to arrest plaintiff. However, in his deposition plaintiff admitted that when he was first
taken to the security office, he was advised by security officers that they had called one of the
numbers and spoke to someone named “Lee Doren” or “Dorrin,” but plaintiff denied knowing
that person.


                                                -4-
        Voice identification testimony is competent evidence if it is “reasonably positive and
certain,” and is based on sufficient knowledge by the witness about the voice. People v Hayes,
126 Mich App 721, 725; 337 NW2d 905 (1983). “[S]ome reason must appear to which the
witness can attribute the ability to make the voice identification, of which familiarity and
peculiarity are the most common, though not exclusive, examples.” Id.

        Kishner was familiar with plaintiff’s voice because she had met 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 recognized the voice of the person who
answered as the same distinctive “scratchy” voice that plaintiff 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 reason for her ability to make the
voice identification. Thus, plaintiff has not shown that Kishner’s voice recognition is not
competent evidence of probable cause. Furthermore, the existence of probable cause was
supported not only by Kishner’s recognition of plaintiff’s voice, but also by the fact that the
person who answered the phone stated, “This is Kevin.”

        Plaintiff also argues that the statements by Dorrin to Johnson cannot be used to support a
finding of probable cause to arrest because it is hearsay. This argument is flawed for two
reasons. First, the statements by Dorrin to Johnson were not offered for a hearsay purpose. “
‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is
not admissible except as provided by the Rules of Evidence. MRE 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 detain plaintiff.

        Second, even if Dorrin’s statements could be considered hearsay, that would not preclude
their use for determining probable cause, as hearsay can be used 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 almost always necessary to establish 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 used to establish probable cause
where the ordinary requirements of personal knowledge and reliability or credibility are met for
each level of hearsay”). Indeed, MCR 6.102(B) expressly provides that “[a] finding of probable
cause may be based on hearsay evidence . . . .”4



4
 Plaintiff also argues that a probable cause determination could not be based on the telephone
call between Johnson and Dorrin because Johnson indicated that she recorded the call, but the
recording was never provided to 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 prosecutor’s office either lost or failed to retain the recording,
preventing its production. Plaintiff did not offer any evidence suggesting that defendants had
any involvement in the loss or destruction of the recording. Plaintiff does not cite any authority

                                                -5-
        We likewise reject plaintiff’s argument that there was no probable 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 probable cause did not exist for that
person’s arrest. Peterson Novelties, 259 Mich App at 18-19.

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

                      C. COMMON-LAW MALICIOUS PROSECUTION

       Plaintiff next argues that the trial court erred in dismissing his common-law claim for
malicious prosecution. A common-law claim for malicious prosecution 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 actions, and (4) the
       action was undertaken with malice or a purpose in instituting the 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 defendants intentionally lied, only that
they made statements in reckless disregard for the truth. Plaintiff appears to rely on the standard
for probable cause for a search or an arrest, and ignores the requirement of a malicious
prosecution claim that the defendant 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 believed 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 false information on which the police
or prosecutor relied to bring criminal charges. Matthews 456 Mich at 385. Although plaintiff
emphasizes that cell tower records later demonstrated that he could 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 defendants should have known at the
time plaintiff was arrested or when criminal proceedings were brought that plaintiff could not
have taken Kishner’s cell phone.

supporting his position that, under these circumstances, defendants are not permitted to establish
the contents of Johnson’s conversation with Dorrin through other means, such as Johnson’s
personal recollection knowledge of their conversation, or Johnson’s contemporaneous report
about that call. See, MRE 1004(1) and (2).


                                                -6-
        Moreover, the evidence showed that defendants referred the matter to the DPD, which
conducted its own investigation and then referred the matter to the Wayne County Prosecutor’s
Office, which then made the decision to initiate criminal charges against plaintiff. In Matthews,
456 Mich at 384, our Supreme Court stated that “in Michigan, the prosecutor’s exercise of his
independent discretion in initiating and maintaining a prosecution 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 where the prosecutor
       conducted “his own investigation, and acted in his official capacity 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 performed its own investigation into
the matter before initiating the criminal case against plaintiff. That action provides a complete
defense to any claim that defendants wrongfully initiated the criminal prosecution. Matthews,
456 Mich at 384. Accordingly, the trial court properly dismissed plaintiff’s claim for common-
law 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 that

       a claim of malicious prosecution under § 1983 premised on a violation of the
       Fourth Amendment consists of four elements. Sykes v Anderson, 625 F3d 294
       (CA 6, 2010). First, the defendant must have influenced or participated in the
       decision to prosecute the plaintiff. Id. at 308. Second, because this claim is
       premised on a violation of a constitutional right, the plaintiff 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 discussed, plaintiff cannot establish that there was a lack of
probable cause for the criminal prosecution. Plaintiff contends 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, particularly considering that the cell
tower records were not then available. In addition, the police and prosecutor conducted an
independent investigation before the prosecutor’s office decided to bring the criminal charge.
There was no evidence that defendants influenced or participated in that decision. Accordingly,
the trial court properly dismissed plaintiff’s malicious prosecution claim under 42 USC 1983.

                                                -7-
Affirmed.



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




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