                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0293n.06

                                           No. 13-3898                                   FILED
                                                                                    Apr 21, 2014
                         UNITED STATES COURTS OF APPEALS                       DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

CHARLES D. HUNT; MERYLIN M. CONARD,                      )
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
CITY OF CLEVELAND; JOHN M. KIGGINS;                      )       COURT FOR THE
CITY OF EAST CLEVELAND; TODD                             )       NORTHERN DISTRICT OF
CARROSCIA; RALPH SPOTS; CHRISTOPHER                      )       OHIO
CARGILE; JOHN 1-20 DOES,                                 )
                                                         )
       Defendants-Appellees.                             )



       Before: BOGGS and KETHLEDGE, Circuit Judges; RESTANI, Judge.*

       RESTANI, Judge. Plaintiff-Appellant Charles Hunt appeals the district court’s grant of

summary judgment to defendants-appellees on his claims brought under 42 U.S.C. § 1983 (2012)

in this action stemming from a car accident involving Hunt, and its aftermath. 1 We affirm.

                                                 I.

       Hunt was injured severely when a police cruiser driven by defendant-appellee East

Cleveland Police Officer Todd Carroscia struck Hunt’s car in the early hours of October 5, 2008,

in an intersection in Cleveland. The video camera in Carroscia’s cruiser and the camera in

*
  The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting
by designation.
1
  A passenger in Hunt’s vehicle, Marylin Conard, also was injured. Conard filed suit and her
name is on the Notice of Appeal and the brief. The brief, however, does not address the district
court’s dismissal of Conard’s federal claims on the basis that the alleged constitutional violations
did not injure Conard. Any appeal by Conard on the federal claims thus is deemed waived. See
United States v. Sandridge, 385 F.3d 1032, 1035–36 (6th Cir. 2004).
No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

another cruiser following Carroscia failed to capture the accident. Hunt claims that this video

evidence was destroyed.

        Defendant-appellee John Kiggins, a Cleveland police officer, was assigned to investigate

the accident. Kiggins returned the East Cleveland police cruiser to the City of East Cleveland,

and Hunt’s car was taken to Cleveland’s impound lot.         The police cruiser eventually was

repaired, and Hunt’s car was destroyed.

        During the course of his investigation into the crash, Kiggins received the results of

Hunt’s blood tests taken at the hospital following the accident. The blood tests showed that Hunt

had a blood alcohol level over the legal limit and had marijuana and cocaine in his system.

Kiggins met with a county prosecutor on October 29, 2008 to review possible charges. On

December 15, 2008, a county prosecutor informed Kiggins that Hunt should be charged only “if

the hospital is certified to take the blood or whatever samples they took from him.” Kiggins

learned that the hospital was not certified and completed a supplementary report indicating that

“this case is hereby considered closed.”

        On March 10, 2009, Hunt filed a lawsuit against Carroscia and the City of East Cleveland

for Carroscia’s negligent/reckless driving and spoliation of certain evidence from the police

cruiser. On April 21, 2009, the City of East Cleveland filed its answer, a counterclaim, and a

cross-claim against Carroscia.

        On June 10, 2009, Kiggins presented the file pertaining to the car accident to a City of

Cleveland prosecutor to authorize tickets against Hunt for Operating a Vehicle under the

Influence (“OVI”). Following authorization from the city prosecutor, Kiggins swore out an OVI

complaint against Hunt on June 24, 2009. Kiggins apparently did not receive any new evidence

between December 2008, when he marked the file closed, and June 2009, when he presented the


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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

case to the city prosecutor.       The charges were dismissed on April 22, 2010 by the city

prosecutor’s office.

         After voluntarily dismissing his original complaint on May 19, 2010, Hunt refiled his

claims in the Cuyahoga County Court of Common Pleas on May 18, 2011. In addition to the

original claims, Hunt added as defendants Kiggins, the City of Cleveland, East Cleveland Police

Chief Ralph Spots, and East Cleveland Police Sergeant Christopher Cargile.           The refiled

complaint set out the following claims: Count I—Retaliation, First Amendment per 42 U.S.C.

§ 1983; Count II—Malicious Prosecution, Fourth Amendment per 42 U.S.C. § 1983; Count III—

Abuse of Process; Count IV—Governmental Liability per 42 U.S.C. § 1983; Count V—

Reckless, Wanton or Willful Operation of Motor Vehicle, Negligence per se, per Ohio law;

Count VI—a Monell2 Claim under 42 U.S.C. § 1983; Count VII—Conspiracy to Deprive Civil

Rights, 42 U.S.C. § 1985; and Count VIII—Spoliation. A notice of removal to federal court was

filed on August 3, 2011.

         On June 28, 2013, the district court granted summary judgment to all defendants on

Hunt’s federal claims. The district court then remanded the state-law claims to state court. Hunt

appeals the grant of summary judgment on his First Amendment retaliation, Fourth Amendment

malicious-prosecution, and Monell/municipal-liability claims.

                                                 II.

         We review de novo a district court’s grant of summary judgment. Frazier v. Honda of

Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). Summary judgment is appropriate where

“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). A dispute is “genuine” if “a


2
    See Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978).
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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In reviewing the grant of summary judgment, we draw all

reasonable inferences from the evidence in favor of the nonmoving party. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

                                                   III.

        Hunt argues that genuine issues of material fact exist on his First Amendment retaliation,

Fourth Amendment malicious-prosecution, and Monell claims. Hunt also raises issues regarding

the district court’s statute-of-limitation analysis.

                                                   A.

        First, Hunt challenges the district court’s statute-of-limitations analysis. The relevant

statute of limitations is two years from the date that Hunt knew or should have known of his

injury. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989); Friedman v. Estate of Presser,

929 F.2d 1151, 1159 (6th Cir. 1991). The district court held that Hunt’s constitutional claims

could not be based upon the car accident itself or the spoliation of evidence regarding the crash

because these events fell outside of the statute of limitations. The claims based upon the

prosecution against Hunt were addressed by the district court on the merits.

        To the extent that Hunt bases any of his constitutional claims on the car accident, the

district court was correct in holding that such claims are barred by the statute of limitations,

because the harm was known to Hunt on the date of the accident, October 5, 2008, yet he did not

file his constitutional claims until May 18, 2011, more than two years later. Similarly, Hunt was

given notice in October 2008 that his car was impounded and would be disposed of if he did not

pick it up by October 23, 2008, and the complaint from his original suit in March 2009 shows

that he was aware at that time that the evidence from the police cruiser had been lost.


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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

        The timing with regard to the alleged destruction of various files is unclear, but the

district court held in the alternative that the destruction of this evidence did not amount to a

constitutional violation. As explained below, this alternative holding was correct because Hunt

has not shown that the Ohio state courts are unable to address adequately the loss of this

evidence.

                                                 B.

        Hunt argues that there are genuine issues of material fact regarding whether charges were

brought against him in retaliation for filing suit against Carroscia and the City of East Cleveland

after the car accident. To prove a First Amendment retaliation claim, a plaintiff must show that:

“(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from continuing to engage in

that conduct; and (3) the adverse action was motivated at least in part by the plaintiff’s protected

conduct.” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (internal quotation

marks omitted). In addition, the plaintiff in a retaliatory-prosecution action must plead and show

the absence of probable cause for pressing the underlying criminal charges. See Hartman v.

Moore, 547 U.S. 250, 255–56 (2006); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006). We

agree with the district court that Hunt has failed to raise a triable issue of fact regarding whether

the filing of charges against Hunt was motivated by the lawsuit against Carroscia and East

Cleveland.

        The action forming the basis of Hunt’s claim is the criminal complaint sworn out against

him by Kiggins in June 2009. Hunt argues that the actions of Kiggins, a Cleveland police

officer, were motivated by Hunt’s lawsuit against East Cleveland and Carroscia, who was an

East Cleveland police officer. Although Hunt has put forward testimony that the East Cleveland


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Hunt, et al. v. City of Cleveland, et al.

Police Department previously had a practice of bringing charges against persons who were

wronged by the police in order to deter or retaliate against the filing of a lawsuit, there is no

evidence that this policy spilled over to the City of Cleveland. The scant evidence cited by Hunt

showing communication between the East Cleveland Police Department and Kiggins relates to

Kiggins’s attempt to obtain additional evidence regarding the crash and occurred in October

2008, several months before Hunt filed suit against East Cleveland and Carroscia. Nothing in

these communications suggest any sort of improper conduct or motivation by any of the

defendants.

        To show that Kiggins was attempting to protect the East Cleveland defendants, Hunt also

points to the destruction of Hunt’s car and the return of the police cruiser to East Cleveland,

Kiggins’s alleged lack of evidence to pursue charges against Hunt, and the fact that the case was

reopened and charges were brought against Hunt after Hunt filed his original lawsuit.

        Although Kiggins failed to take any affirmative action to preserve Hunt’s car, the car was

destroyed pursuant to the impound lot’s procedures without any direction from Kiggins, and

Hunt was sent notice that his car would be disposed of if he did not pick it up. Regarding the

police cruiser, Hunt claims that the electronic data recorder, which would contain information

such as the cruiser’s speed at the time of the accident, was destroyed or lost after the cruiser was

returned to East Cleveland. The evidence in the record, however, indicates that the cruiser never

had an electronic data recorder to begin with. Moreover, the cruiser sat in the East Cleveland lot

for at least several months before it was repaired. This evidence simply does not permit a

reasonable inference that there was some sort of conspiracy between Kiggins and the East

Cleveland defendants to destroy evidence with the purpose of deterring Hunt from pursuing

future litigation.


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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

        Regarding Kiggins’s reliance on the toxicology tests, the only record evidence of

Kiggins’s awareness of a policy against using those tests is the email from the county prosecutor.

The record does not show if the city prosecutor had the same policy at the time the charges were

brought or if Kiggins was aware of the city’s policy, if one existed.3 Furthermore, there are no

allegations that Kiggins, in an attempt to circumvent that policy, misrepresented the evidence to

the city prosecutor who approved the charges. In sum, the evidence does not disclose any

nefarious conduct by Kiggins in relying on the toxicology tests when presenting Hunt’s case to

the city prosecutor.

        The remainder of Hunt’s argument is based upon the timeline of the case. Kiggins closed

the case in December 2008, after presenting it to the county prosecutor, because the hospital lab

was not certified; Hunt filed suit in March 2009; and the city prosecutor approved charges

against Hunt in June 2009. Hunt cites Muhammad v. Close for the proposition that “temporal

proximity alone may be significant enough to constitute indirect evidence of a causal connection

so as to create an inference of retaliatory motive.” 379 F.3d 413, 417–18 (6th Cir. 2004)

(internal quotation marks omitted). In Holzemer v. City of Memphis, however, we elaborated

that this inference might be warranted only if the temporal proximity is “extremely close” and

that “often evidence in addition to temporal proximity is required.” 621 F.3d 512, 526 (6th Cir.

2010) (internal quotation marks omitted). Three months elapsed after Hunt filed his lawsuit

against Carroscia and East Cleveland before charges were filed against Hunt, which hardly

seems “extremely close” in time, and neither Kiggins nor the City of Cleveland was a party to

3
   Hunt cites Officer Cerny’s testimony for the proposition that Cleveland police “weren’t
allowed” to bring charges using only those toxicology results. Cerny, however, never testified
that such a policy existed on a department-wide basis during the relevant timeframe. Cerny
testified that he was aware at the time of his deposition that there were admissibility problems
with those tests, but he stated that in 2008 the police likely still were unsure whether this
evidence could be used and that they had been able to use those tests as evidence in the past.
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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

the original lawsuit. The time gap and the fact that neither Kiggins nor the City of Cleveland had

any discernible interest in the suit against Carroscia and East Cleveland precludes any inference

based on temporal proximity alone that the charges were motivated by Hunt’s lawsuit.

        Because Hunt is unable to point to any evidence from which a reasonable juror could

conclude that the charges were motivated by Hunt’s lawsuit against East Cleveland and Officer

Carroscia, the district court’s grant of summary judgment to the defendants on Hunt’s First

Amendment retaliation claim was proper.

                                                 C.

        Hunt also appeals the grant of summary judgment on his Fourth Amendment malicious-

prosecution claim. To succeed on this claim, Hunt must prove four elements.

        First, the plaintiff must show that a criminal prosecution was initiated against the
        plaintiff and that the defendant made, influenced, or participated in the decision to
        prosecute. Second, because a § 1983 claim is premised on the violation of a
        constitutional right, the plaintiff must show that there was a lack of probable
        cause for the criminal prosecution. Third, the plaintiff must show that, as a
        consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty,
        as understood in our Fourth Amendment jurisprudence, apart from the initial
        seizure. Fourth, the criminal proceeding must have been resolved in the
        plaintiff’s favor.

Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010) (citations omitted) (internal quotation

marks and brackets omitted). Despite being labeled as an action for “malicious prosecution,” a

plaintiff does not have to demonstrate malice. Id. at 309–10. Hunt claims in his brief that

“Defendants Spotts [sic], Cargile, and Kiggins, influenced and participated in the decision to

prosecute Plaintiff Hunt.” Appellant Br. 28.

        Summary judgment for the defendants was proper on this claim because Hunt has failed

to produce any evidence showing that Spots, Cargile, or Kiggins influenced or participated in the

actual decision to prosecute Hunt. Hunt cites no evidence whatsoever showing that Spots or


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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

Cargile contacted Kiggins. Nor does Hunt point to any evidence showing that they directed

anyone else to contact and influence Kiggins.         Summary judgment for Spots and Cargile

therefore was proper. And although Kiggins played an active role in bringing charges against

Hunt, “an officer will not be deemed to have commenced a criminal proceeding against a person

when the claim is predicated on the mere fact that the officer turned over to the prosecution the

officer’s truthful materials.” Sykes, 625 F.3d at 314. The city prosecutor had the ultimate

authority in charging Hunt, and there is nothing to indicate that Kiggins presented false

information or withheld any information when presenting the case to the city prosecutor.

                                                D.

        The final issues on appeal are Hunt’s claims against the municipalities.

        As to his claim against Cleveland, Hunt tersely argues in his brief that Cleveland failed to

provide adequate training to Kiggins on the proper preservation of evidence. To establish a

failure-to-train claim, Hunt must show “prior instances of unconstitutional conduct

demonstrating that the municipality had ignored a history of abuse and was clearly on notice that

the training in this particular area was deficient and likely to cause injury.” Burgess v. Fischer,

735 F.3d 462, 478 (6th Cir. 2013) (internal quotation marks and brackets omitted). Hunt fails to

cite any evidence showing that Cleveland was aware of a pattern of unconstitutional conduct and

a need for further training. Judgment for Cleveland therefore was warranted.

        Hunt focuses most of his argument regarding East Cleveland’s potential liability on the

East Cleveland Police Department’s alleged policy of retaliation.        Summary judgment was

proper on this claim because Hunt cannot point to any evidence showing that East Cleveland’s

alleged policy caused Kiggins and the City of Cleveland to pursue charges against Hunt.




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No. 13-3898
Hunt, et al. v. City of Cleveland, et al.

        Hunt also argues that East Cleveland failed to train Carroscia on how to drive the police

cruiser and makes several allegations that East Cleveland destroyed evidence as part of an

alleged cover-up for Carroscia. As indicated, any claim arising out the car accident itself is

barred by the statute of limitations, as is any claim arising out of the destruction of evidence from

the police cruiser. To the extent that Hunt’s municipal-liability claim is based on the loss of

various files, the alleged destruction of this evidence does not establish a constitutional violation.

Any claim based upon a cover-up to limit civil liability is best understood as a “denial of access”

claim, which requires Hunt to show: “(1) a non-frivolous underlying claim; (2) obstructive

actions by state actors; (3) substantial prejudice to the underlying claim that cannot be remedied

by the state court; and (4) a request for relief which [Hunt] would have sought on the underlying

claim and is now otherwise unattainable.” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir.

2013) (citations omitted) (internal quotation marks and brackets omitted). Because Hunt has not

shown that the alleged destruction of evidence cannot be addressed adequately by the Ohio state

courts in the context of his litigation against Carroscia and the City of East Cleveland, he has

failed to show a denial of access. See Swekel v. City of River Rouge, 119 F.3d 1259, 1263–64

(6th Cir. 1997) (noting the general adequacy of state-court remedies and spoliation lawsuits in

redressing police cover-ups); Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir. 1986) (rejecting

denial-of-access claim based upon police cover-up when there was “no reason to believe that an

Ohio court and jury would be unavailable and would not do justice between the parties”).

                                                 IV.

        For the forgoing reasons, the district court’s grant of summary judgment to all defendants

on Hunt’s federal claims is affirmed.




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