                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 13a0275n.06

                                                   No. 12-1774

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

                                                                                                FILED
GUADALUPE LINDA GARCIA,                                          )                          Mar 19, 2013
                                                                 )                   DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                                    )
                                                                 )
v.                                                               )     ON APPEAL FROM THE UNITED
                                                                 )     STATES DISTRICT COURT FOR
                                                                 )     THE WESTERN DISTRICT OF
MATTHEW THORNE,                                                  )     MICHIGAN
                                                                 )
         Defendant-Appellee.                                     )



Before:           MARTIN and GILMAN, Circuit Judges; and FOWLKES, District Judge.*

     BOYCE F. MARTIN, JR., Circuit Judge. Guadalupe Linda Garcia sued Officer Matthew

Thorne of the Mason Police Department, alleging false arrest, violation of her substantive due

process rights, malicious prosecution, retaliation, and abuse of process. Thorne moved for summary

judgment on all claims, and the district court granted his motion. For the reasons that follow, we

AFFIRM the judgement of the district court.

                                                         I.

         On March 17, 2008, the Mason Police Department responded to a breaking and entering at

a home in Mason, Michigan. During the course of the investigation, Garcia’s fifteen-year-old son,

Chaz Smith, became a suspect. On March 24, 2008, Officer Thorne requested a warrant from the



        *
          The Honorable John T. Fowlkes, United States District Judge for the W estern District of Tennessee, sitting
by designation.
No. 12-1774
Garcia v. Thorne

Ingham County Prosecutor’s Office. In the warrant request, Thorne cited Chaz for second-degree

home invasion, and he noted that the crime is a felony. On March 27, 2008, Assistant Prosecuting

Attorney Patricia Esch authorized the warrant, and because Chaz was a juvenile, the state court’s

family division issued an apprehension order. In the authorization section of the warrant request,

Esch cited Chaz for second-degree home invasion and also indicated that the crime is a felony.

       Thorne called Garcia’s mobile and home phones several times in an attempt to apprehend

Chaz. According to Garcia, Thorne made calls at inappropriate hours. In her complaint, she claims

that Thorne called her home telephone on April 1, 2008 at approximately 3:00 a.m., and that she told

Thorne to leave her son alone. Garcia also claims that Thorne called her home and mobile phones

on April 10, 2008 between 1:00 a.m. and 4:00 a.m. According to Thorne, Garcia refused to give

Thorne her current address. Apparently, neither Thorne nor anyone in the Mason Police Department

knew Garcia’s address, but at some point Thorne obtained information that she had moved from

Mason to the south side of Lansing, Michigan.

       Thorne had at least one interaction with Garcia prior to his attempts to arrest Chaz. Around

2005, Garcia had a domestic dispute with her then boyfriend and former Lansing Police Officer Rob

Vargas. According to Garcia, Vargas broke into her home and assaulted and raped her. She called

the Mason Police Department to report the incident and Thorne arrived at the scene. Garcia felt as

if Thorne did not take her complaint seriously and that he blamed her for the dispute. According to

Garcia, Thorne told her that she should leave Vargas alone. In Thorne’s 2008 Incident Report

concerning his attempts to apprehend Chaz, he noted that “[i]t is known through many contacts with

[Garcia] that she is very anti-police.”

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Garcia v. Thorne

       On April 3, 2008, Garcia visited Matt Stuard, the Program Coordinator at Chaz’s school,

Mason Summit High School, in order to talk about Chaz’s absence from school. Stuard sent an

email to the school’s Resource Officer, Steve Chick, explaining what took place during the meeting

with Garcia. According to Stuard’s email, Garcia explained that Chaz was having “legal problems”

and that there was a warrant for his arrest. Garcia also told Stuard that she did not see the point of

having Chaz return to the school in light of the fact that “he was going to be taken in anytime.”

       On April 10, 2008, Thorne spoke to Chaz over the telephone and informed him that an

apprehension order had been issue for his arrest. According to Thorne, Chaz agreed to turn himself

in on April 14, 2008. On April 14, 2008, when Thorne arrived at work, Department secretary Jan

Lifsey told him that Garcia had contacted the Department stating that Chaz would not be turning

himself in and complaining that Thorne had been calling her in the early morning hours. Later that

day, Thorne contacted Stuard, who told Thorne that Chaz had not been in school since March 31,

2008 and that Garcia said that she knew the Department wanted to arrest Chaz. According to Garcia,

sometime between 1:00 and 4:00 am on April 15, 2008, Thorne called her and threatened her with

criminal charges.

       On April 15, 2008, Thorne submitted a warrant request for Garcia to the Prosecutor’s Office,

citing her for harboring a felon. The warrant request listed the location of the crime as the City of

Mason and listed Garcia’s address as being in Mason. On April 16, 2008, instead of authorizing a

warrant for harboring a fugitive, the Prosecutor’s Office authorized a warrant for misdemeanor

truancy. According to Thorne’s Incident Report, he obtained Garcia’s Lansing, Michigan address

on April 16, 2008. The Lansing Police Department executed the warrant the same day and

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Garcia v. Thorne

transferred Garcia into Thorne’s custody. The police arrested Chaz on April 17, 2008. Garcia was

in county jail for less than a full day, and a little over a month after her arrest, the prosecutor filed

a nolle prosequi and dismissed the truancy charges. Garcia filed the instant suit on April 10, 2011.

        Garcia brought six claims against Thorne under 42 U.S.C. § 1983: (1) false arrest; (2)

violation of her substantive due process rights; (3) malicious prosecution; (4) retaliation; (5) abuse

of process; and (6) exemplary damages. Thorne moved for summary judgment, and the district court

granted the motion as to all claims and noted that Garcia improperly brought exemplary damages as

a claim. Garcia appeals the district court judgment.

                                                   II.

        We review a district court’s grant of summary judgment de novo. Binay v. Bettendorf, 601

F.3d 640, 646 (6th Cir. 2010) (citation omitted). 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). “In deciding a motion for summary judgment, the court must

view the factual evidence and draw all reasonable inferences in favor of the nonmoving party.”

Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “While all inferences are drawn in favor of

the non-moving party, that party still must present some affirmative evidence supporting its position

to defeat an otherwise appropriate motion for summary judgment.” Tucker v. Tennessee, 539 F.3d

526, 531 (6th Cir. 2008) (citations omitted).



                                                  III.

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Garcia v. Thorne

        Garcia claims, on false arrest and malicious prosecution theories, that Thorne violated her

Fourth Amendment right to be free from an unlawful seizure. To state a claim of false arrest, a

plaintiff must show that the arresting officer lacked probable cause to arrest her. Sykes v. Anderson,

625 F.3d 294, 305 (6th Cir. 2010) (citing Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677

(6th Cir. 2005)). We are willing to assume that Garcia may bring this claim against Thorne in spite

of the fact that Thorne was not the arresting officer and that the Prosecutor’s Office authorized a

warrant for Garcia’s arrest based a truancy charge, which is not the charge upon which Thorne

sought to have Garcia arrested. To state a claim for malicious prosecution, a plaintiff must show that

the arresting officer lacked probable cause to seek the initiation of criminal proceedings against her.

Id. at 310–11 (citing Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)). We are willing to assume

that Garcia may bring this claim against Thorne because it is likely that, as the investigating officer,

Thorne influenced the decision to prosecute Garcia. Id. at 311.

        Garcia argues that there could not have been probable cause to arrest her or to initiate

criminal proceedings against her for the crime of harboring a felon because Thorne knew or should

have known that because Chaz was a minor, he would not be charged as an adult and therefore

would not be charged with a felony. Garcia does not dispute that she was indeed harboring Chaz.

In order to make a finding of probable cause, we consider the totality of the circumstances and

whether the facts and circumstances of which Thorne had knowledge at the time of the arrest were

sufficient to warrant a prudent person in believing that Garcia had committed an offense. Id. at 306

(citation omitted). The arresting officer’s actual motives are irrelevant to the probable cause



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Garcia v. Thorne

analysis. Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (citing Scott v. United States, 436

U.S. 128, 138 (1978)).

       Thorne had probable cause to believe that Garcia had committed the crime of harboring a

felon. Garcia argues that the family court’s issuance of the warrant for Chaz’s arrest is a clear

indication that Chaz would not be charged as an adult. Although it is true that the family division

of the Michigan Circuit Court has exclusive jurisdiction in dealing with juveniles, Mich. Comp.

Laws § 712A.2, judges may waive this jurisdiction in cases involving juveniles age 14 and older who

commit crimes that would be a felony if committed by an adult. Mich. Comp. Laws § 712A.4(1);

see also People v. Hana, 504 N.W.2d 166, 168–69 (Mich. 1993). Chaz’s crime, second-degree

home invasion, is a felony for adults and he was 15 years old at the time. Additionally, in

authorizing Thorne’s warrant request for Chaz, Assistant Prosecutor Esch indicated that Chaz’s

crime was a felony. Thorne’s knowledge at the time of Garcia’s arrest was sufficient to warrant a

prudent person in believing that Garcia had committed the crime of harboring a felon.

       Next, Garcia argues that Thorne lacked probable cause because he made material false

statements in the warrant request when he stated that the crime, harboring a felon, took place in

Mason and that Garcia’s last known address was a Mason address. With regard to the false-

statement claim, Garcia must prove by a preponderance of the evidence that, in order to procure the

warrant, Thorne “‘knowingly and deliberately, or with a reckless disregard for the truth, made false

statements or omissions that create[d] a falsehood’ and ‘such statements or omissions [we]re

material, or necessary, to the finding of probable cause.’” Sykes, 625 F.3d at 305 (quoting Wilson

v. Russo, 212 F.3d 781, 786–87 (3d Cir. 2000) (citation omitted)). Thorne obtained Garcia’s Lansing

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Garcia v. Thorne

address on April 16, 2008, but he testified that he knew Garcia moved to Lansing prior to that date.

Garcia alleges that Thorne obtained her Lansing address on April 10, 2008. Viewing the facts in the

light most favorable to Garcia, the Court will assume that Thorne knew that Garcia lived in Lansing

at the time that he submitted the warrant request, and that he knowingly and deliberately made false

statements when he alleged that Garcia’s last known address was a Mason address and that Mason

was the location of the crime.

       Even though Thorne knowingly and deliberately lied about Garcia’s address and the location

of the crime, his statements were not material to a finding of probable cause. Section 750.199(3) of

the Michigan Compiled Laws explains that “a person who knowingly or willfully conceals or harbors

for the purpose of concealment from a peace officer” someone who is subject to an arrest warrant

or bench warrant for a felony is guilty of a felony. Mich. Comp. Laws § 750.199(3). Statements

regarding Garcia’s knowing or willful concealment of Chaz or about Chaz’s arrest warrant for a

felony would be material to a finding of probable cause for the crime of harboring a felon. Garcia

does not allege that Thorne made false statements concerning Garcia’s knowing or willful

concealment of Chaz or about Chaz’s arrest warrant for a felony in the warrant request. Thorne’s

false statements about the location of the crime and Garcia’s address are, at most, material to a

finding of the Mason Police Department’s jurisdiction over the matter. It is not material to a finding

of probable cause that Garcia was committing the crime of harboring a felon.

       Even if this Court were to find that Thorne lacked probable cause in seeking Garcia’s arrest,

Thorne is entitled to qualified immunity. Police officers are entitled qualified immunity unless there

is such an utter lack in probable cause that no officer of reasonable competence would have

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Garcia v. Thorne

concluded that a warrant should issue. Hutsell v. Sayre, 5 F.3d 996, 1003 (6th Cir. 1993) (citing

Malley v. Briggs, 475 U.S. 335 (1986); Yancey v. Carroll Cnty., 876 F.2d 1238, 1243 (6th Cir.

1989)). In other words, if we find that Thorne lacked probable cause, we turn to the question of

whether Thorne made a reasonable mistake of law. If Thorne made a mistake of law, it was a

reasonable mistake given that, at the time he submitted the warrant request, he knew that: (1) Garcia

admitted to both the Mason Police Department and an official at Chaz’s school that she was aware

that there was a warrant for Chaz’s arrest; (2) Garcia told the Mason Police Department that she

advised her son not to turn himself in; and (3) the warrant for Chaz was for a felony crime.

                                                 IV.

       Garcia claims that Thorne violated her Fourteenth Amendment substantive due process rights

by: (1) repeatedly calling Garcia’s mobile and home phones during unreasonable hours after being

told to stop and even after Garcia complained to the Mason Police Department; (2) intentionally

submitting a warrant request for an alleged offense outside of his jurisdiction; and (3) intentionally

submitting a warrant request for an offense for which probable cause did not exist. The Fourteenth

Amendment’s Due Process Clause has a substantive component that guarantees “‘protection of the

individual against arbitrary action of government.’” Jones v. Byrnes, 585 F.3d 971, 976 (6th Cir.

2009) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). Garcia must show that Thorne’s

conduct was so arbitrary as to “shock the conscious.” Id. (citing Cnty. of Sacramento v. Lewis, 523

U.S. 833, 846–47 (1998)); see also Draw v. City of Lincoln Park, 491 F.3d 550, 556 (6th Cir. 2007)

(stating that “police conduct must be truly extraordinary in nature to qualify as ‘conscience

shocking’” and conduct that showed “incredibly poor judgment” did not meet this standard).

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       Taking Garcia’s allegations regarding the hour and frequency of Thorne’s phone calls as true,

although she has not produced any evidence substantiating the allegations and Thorne has produced

phone records proving that no such calls were made using his official police mobile phone, the calls

do not shock the conscience. This Court has employed a very high standard when determining

whether police action shocks the conscience. For example, in Lillard v. Shelby County Board of

Education, 76 F.3d 716, 725-26 (6th Cir. 1996), where public school students claimed that a teacher

physically abused and sexually harassed them, we determined that the slapping of a student’s face

without causing physical injury, while inappropriate, did not shock the conscience. We also held that

the teacher’s rubbing of a student’s stomach, accompanied by a remark that could be interpreted as

sexually suggestive, while wholly inappropriate, did not shock the conscience. Lillard, 76 F.3d at

726. In Mitchell v. McNeil, 487 F.3d 374, 376-77 (6th Cir. 2007), the parents of a twelve-year-old

boy alleged in the complaint that city police officials violated their substantive due process rights

and those of their child by permitting a police officer to lend his personal vehicle to an informant

who subsequently hit and killed their son with the vehicle. We held that the complaint’s allegations

did not allege conscience-shocking conduct even though the complaint alleged a city custom of

“encouraging police officers to provide automobiles to informants with known histories of drug and

alcohol use.” McNeil, 487 F.3d at 377. We noted that while such a policy may be “strange,” it was

not conscience shocking. Id.

       Here, while making phone calls to the mother of a suspected felon between the hours of 1:00

a.m. and 4:00 a.m. arguably shows poor judgment on the part of Thorne, such behavior does not

shock the conscience. Nor does Thorne’s having intentionally submitted a warrant request for an

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Garcia v. Thorne

alleged offense outside of his jurisdiction shock the conscience because he did not make the arrest

himself. Once he obtained Garcia’s Lansing address, he allowed officers with the Lansing Police

Department to arrest Garcia. Finally, Garcia’s allegation that Thorne intentionally submitted a

warrant request for an offense for which probable cause did not exist is unpersuasive because we

have already determined that probable cause did exist.

                                                  V.

        Garcia argues that Thorne violated her First Amendment right to be free from retaliation for

expressing her criticism of Thorne when Thorne: (1) called Garcia on April 15, 2008, between 1:00

am. and 4:00 a.m.; and (2) submitted the warrant request seeking criminal charges against Garcia.

To establish a retaliation claim under the First Amendment, Garcia must show that: (1) she was

engaged in constitutionally protected activity; (2) Thorne’s adverse action caused her to suffer an

injury that would likely chill a person of ordinary firmness from continuing to engage in that activity;

and (3) the adverse action was motivated at least in part as a response to the exercise of her

constitutional rights. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (citations omitted).

        Thorne argues that Garcia has not established that the phone calls made the morning of

August 15, 2008 or the decision to seek criminal charges against Garcia were motivated in part by

Garcia’s complaint that Thorne repeatedly called her at irregular hours. If a defendant can show that

he would have taken the same action in the absence of the protected activity, he is entitled to prevail

on summary judgment. Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999). The plaintiff must

point to specific, nonconclusory evidence reasonably linking her speech to the adverse action.

Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003). “Temporal proximity, standing alone, is

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Garcia v. Thorne

insufficient to establish a causal connection for a retaliation claim.” Tuttle v. Metro. Gov’t of

Nashville, 474 F.3d 307, 321 (6th Cir. 2007) (citations omitted).

        Garcia contends that, in addition to the temporal proximity between her complaint and

Thorne’s April 15, 2008 call, Thorne’s statements in his Incident Report describing her as “anti-

police” and his comments to her during their interaction in 2005 create an inference of retaliation

on his part. It is unclear whether Thorne’s description of Garcia as anti-police was in reference to

his communications with Garcia in the past or to his communications with Garcia as he attempted

to apprehend Chaz. Nonetheless, Thorne describing Garcia as anti-police is not an indication that

he retaliated against Garcia. Thorne’s Incident Report went on to explain the ways in which Garcia

was hostile to him, and Garcia admitted to having some “choice words” for Thorne during at least

one phone conversation. No one could reasonably infer from Thorne’s comments an intention or

desire to retaliate against Garcia. Moreover, this Court is not willing to view Thorne’s comments

to Garcia during the 2005 encounter, which involved a completely unrelated event that took place

approximately three years prior to Garcia’s complaint, as comments creating an inference of

retaliation.

        Thorne’s phone call on April 15, 2008 and his decision to pursue criminal charges against

Garcia were not acts of retaliation. Regarding the phone call, Garcia’s complaint alleges that Thorne

made early morning phone calls to her on at least two occasions prior to the April 15 phone call.

Even assuming that Thorne had a pattern of calling Garcia during the early morning hours, however

unwise and inappropriate the phone calls might have been, such calls are not evidence that Thorne’s



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Garcia v. Thorne

call on April 15 was in retaliation for her informal complaint; rather, they are evidence of the

continuation of an already established pattern of behavior.

       As to Garcia’s claim that Thorne retaliated by pursuing criminal charges and seeking an arrest

warrant, the Supreme Court has held that the lack of probable cause is highly probative, if not

dispositive, of the existence of a retaliatory motive. Hartman v. Moore, 547 U.S. 250, 265–66

(2006). Along those same lines, it is arguable that the existence of probable cause indicates a lack

of retaliatory motive. We have already established that Thorne had probable cause in seeking to

obtain an arrest warrant for Garcia. Moreover, it is likely that Thorne sought the warrant for Garcia’s

arrest the day after Garcia made her complaint because, in addition to complaining about Thorne’s

phone calls, Garcia also revealed that she did not intend to allow Chaz to turn himself in. Although

summary judgment is generally not well suited for cases in which motive and intent are at issue and

in which the alleged wrongdoers are in control of the proof, Perry v. McGinnis, 209 F.3d 597,

600–01 (6th Cir. 2000) (citing Cooper v. North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)), this

is a case where summary judgment is appropriate given that we have already determined that Thorne

had probable cause for seeking Garcia’s arrest and that Thorne’s challenged behavior is part of an

established pattern of behavior in which Thorne engaged prior to Garcia’s protected action.

                                                 VI.

       Finally, Garcia accuses Thorne of abuse of process. The Sixth Circuit has not “specifically

determined whether a claim for abuse of process is a cognizable constitutional claim that can be

redressed pursuant to § 1983.” Voyticky, 412 F.3d at 676. Still, we have resolved section 1983



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abuse-of-process claims without deciding whether such a claim is cognizable and, in doing so, we

typically assume that the elements would likely mirror those of state law. Id. at 676–77.

       In Michigan, to establish a claim for abuse of process, a plaintiff must prove: “(1) an ulterior

purpose and (2) an act in the use of process which is improper in the regular prosecution of the

proceeding.” Friedman v. Dozorc, 312 N.W.2d 585, 594 (Mich. 1981) (citation omitted). For an

abuse-of-process claim, the misconduct “is not the wrongful procurement of legal process or the

wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how

properly obtained, for any purpose other than that which it was designed to accomplish.” Id. at n.18

(quoting Restatement (Second) of Torts § 682 cmt. a (1977)). Garcia’s abuse-of-process claim

against Thorne fails because Thorne’s behavior has to do with the initiation of criminal proceedings,

not the misuse of process. Spear v. Pendill, 130 N.W. 343, 344 (Mich. 1911) (stating that the abuse-

of-process cause of action “lies for the improper use of process after it has been issued, not for

maliciously causing it to issue”).

       For the aforementioned reasons, the judgment of the district court is AFFIRMED.




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