                          STATE OF MICHIGAN

                           COURT OF APPEALS



JOSEPH BAILEY,                                                      UNPUBLISHED
                                                                    January 10, 2017
               Plaintiff-Appellant,

v                                                                   No. 329516
                                                                    Washtenaw Circuit Court
CHRISTOPHER FITZPATRICK, WILLIAM                                    LC No. 15-000370-CZ
STANFORD, and MICHAEL DORTCH,

               Defendants-Appellees.


Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        Two masked men robbed an Ann Arbor party store. One of the assailants wore a
distinctive sweatshirt with a hood that closed into a skeleton mask. An anonymous tipster
implicated plaintiff Joseph Bailey. Bailey was arrested, charged, and bound over for trial
following a preliminary examination. He eventually pleaded guilty to resisting and obstructing a
police officer, and the prosecutor dismissed armed robbery and weapons possession charges.
Bailey then filed a complaint against defendants, three police detectives, alleging false arrest,
malicious prosecution, assault and battery, and “gross negligence.” The circuit court summarily
dismissed all of Bailey’s claims.

       We affirm the circuit court’s dismissal of the causes of action, save one. Because
questions of fact remain regarding whether defendant Stanford threatened Bailey and
deliberately spat in Bailey’s face during an interrogation, we reverse the circuit court as to that
narrow ground and remand for further proceedings.

                                                 I

        On the morning after the robbery, Ann Arbor detective Christopher Fitzpatrick reviewed
video footage of the crime. According to Fitzpatrick, the images showed that one of the
assailants wore “a skeleton mask” hoodie with a “skeleton pattern” visible on the arms and the
lower torso. That robber also wore a dark colored, sleeveless vest with letters or a brand name
on the upper left chest and dark colored blue jeans with a pattern on the right thigh. After
receiving a tip that Bailey was involved in the robbery, defendants Fitzpatrick and Stanford
visited Bailey’s home. Bailey’s mother allowed the detectives to “check” his room to verify that
Bailey was not present. The detectives observed a “skeleton hoodie” hanging from the door.


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        Stanford then applied for a search warrant, averring that one of the robbers had worn “a
skeleton sweat shirt,” “blue jeans with a symbol on the upper right thigh,” and “a sleeveless
jacket over the skeleton sweat shirt with a symbol on the upper front left side.” The affidavit
recited that a tip from an unknown caller identified Bailey as the robber, and that detectives had
seen a “skeleton sweat shirt” in Bailey’s room. A magistrate approved the warrant. The police
seized several items of Bailey’s clothing including the sweatshirt, a winter vest with the word
“Avirex” on the left chest area, and a pair of jeans “that had a very distinct pattern on both front
left and right thigh areas[.]” Bailey allegedly resisted his subsequent arrest by fleeing through a
window and hiding in a wooded area. He was charged with assaulting, resisting, or obstructing
an officer in addition to armed robbery and the weapons offense.

        A Washtenaw District Court judge conducted a preliminary examination at which
detectives Fitzpatrick and Stanford testified, as well as an officer who had been dispatched to the
robbery scene. The district court judge determined that probable cause existed to believe that
Bailey had committed all three offenses. Bailey was unable to furnish bond and was remanded
to the Washtenaw County Jail.

        Approximately five months later, Bailey entered his plea to the resisting and obstructing
charge. The prosecutor successfully moved for nolle prosequi as to the armed robbery and
weapons charges. Bailey first pursued a federal court action brought under 42 USC § 1983.
When the federal district court declined to exercise supplemental jurisdiction over his state law
claims, he filed this case.

        Bailey’s 110-paragraph complaint sets forth four counts: (1) “assault and battery,” (2)
“gross negligence,” (3) “false arrest/false imprisonment,” and (4) “malicious prosecution.”
Defendants sought summary disposition pursuant to MCR 2.116(C)(7) and (8), which the circuit
court granted.

                                                 II

        We review de novo a circuit court’s summary disposition ruling. Allen v Bloomfield Hills
Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). Under MCR 2.116(C)(7), a defendant is
entitled to summary disposition when a claim is barred because of immunity granted by law.
Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). We accept the
plaintiff’s well-pleaded factual allegations as true and construe them in the plaintiff’s favor,
unless the moving party contradicts the allegations with documentary evidence. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999), citing Patterson v Kleiman, 447 Mich 429,
434 n 6; 526 NW2d 879 (1994). While “a movant under MCR 2.116(C)(7) is not required to file
supportive material, and the opposing party need not reply with supportive material,” a party
“may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other
documentary evidence,” if “the substance or content of the supporting proofs [is] admissible in
evidence.” Maiden, 461 Mich at 119.

        A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based solely on
the pleadings. Id. “All well-pleaded factual allegations are accepted as true and construed in a
light most favorable to the nonmovant.” Id. Here, however, the circuit court considered


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evidence outside the pleadings: the preliminary examination transcript and the search warrant
affidavit. Accordingly, MCR 2.116(C)(10) governs our analysis, rather than MCR 2116(C)(8).

        A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a claim. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A (C)(10)
motion should be granted if the pleadings, affidavits, and other documentary evidence, when
viewed in a light most favorable to the nonmovant, reveal no genuine issue with respect to any
material fact. Id.; see also MCR 2.116(G)(3), (4). A genuine issue of material fact exists when
the record, “giving the benefit of reasonable doubt to the opposing party, . . . leave[s] open an
issue upon which reasonable minds might differ.” Skinner, 445 Mich at 162 (quotation marks
and citation omitted). When considering a motion for summary disposition under MCR
2.116(C)(10), the court is not permitted to assess credibility or to determine facts. Id. at 161.

                                                  III

                                A. MALICIOUS PROSECUTION

       “A person’s interest in freedom from unjustifiable litigation is protected in part by the tort
of malicious prosecution.” Belt v Ritter, 385 Mich 402, 405-406; 189 NW2d 221 (1971). The
elements of the tort are: (1) the defendant initiated a criminal prosecution against the plaintiff, (2)
the criminal proceedings terminated in the plaintiff’s favor, (3) the 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.” Matthews v Blue Cross & Blue Shield of Mich, 456 Mich 365, 378; 572
NW2d 603 (1998); see also Walsh v Taylor, 263 Mich App 618, 632-633; 689 NW2d 506
(2004). The dispute in this case centers on whether defendants had probable cause to arrest
Bailey. When no material facts are in dispute, we review this question de novo. Matthews, 456
Mich at 377.

        This Court has repeatedly held that “where a person fully and fairly states the facts
known to him to a prosecuting attorney, and signs the complaint on his advice, probable cause
will be considered established so as to prevent a judgment for malicious prosecution against that
person.” Belt v Ritter, 18 Mich App 495, 503; 171 NW2d 581 (1969). One potential situation
giving rise to a malicious prosecution action “is where a police officer knowingly swears to false
facts in a complaint, without which there is no probable cause.” Id. The facts supporting
probable cause in this case included the tip implicating Bailey, the similarities between his
clothing and the clothing seen on the store video, and his flight when the officers attempted to
arrest him.

         Bailey argues that defendants’ summary disposition motion was “premature,” and that the
parties should have been permitted to engage in discovery. While we are sympathetic to this
claim, Bailey has failed to offer any argument that could potentially rebut the existence of
probable cause, even if factually supported. Bailey’s brief on appeal contends that the officer’s
initial “search” of his bedroom was illegal, that he had an alibi the officers failed to verify, and
that defendants failed to conduct a line-up “for the victim of the party store to identify Plaintiff.”
These allegations do not create a fact question regarding probable cause.


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        Aside from a bare-bones accusation that detectives Stanford and Fitzpatrick illegally
searched his bedroom, Bailey proffers no facts or argument in this regard. Fitzpatrick testified at
the preliminary examination that Bailey’s mother allowed the officers to look in Bailey’s
bedroom to confirm that Bailey was not at home, and that the officers saw the sweatshirt in plain
view hanging from the door to the room. We are unable to discern even a hint of illegality, and
Bailey has not explained how even an illegal search could eliminate probable cause in this civil
action. Nor do we find any merit in Bailey’s contention that a line-up should have been
performed as both robbers wore masks covering their faces and no facial characteristics could be
discerned. And the preliminary examination transcript reflects that Fitzgerald testified in detail
to his post-arrest interview with Bailey, including that Bailey claimed to have no “account of his
whereabouts” for the night of the robbery. Bailey has offered no evidence that this statement
was untrue. Given that defendants made a full and fair disclosure of the results of their
investigation to the prosecutor, Payton v Detroit, 211 Mich App 375, 395; 536 NW2d 233
(1995), Bailey’s malicious prosecution claim fails.

                        B. FALSE ARREST/FALSE IMPRISONMENT

        “A false arrest is an illegal or unjustified arrest, and the guilt or innocence of the person
arrested is irrelevant.” Peterson Novelties, Inc v Berkley, 259 Mich App 1, 18; 672 NW2d 351
(2003). “False imprisonment has been defined by this Court as an unlawful restraint on a
person’s liberty or freedom of movement.” Id. at 17-18. “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.” Id. at 18.

         As discussed above, the district court’s decision at the preliminary examination
established that there was probable cause for Bailey’s arrest as a matter of law, and Bailey
provides no argument to the contrary. Because Bailey cannot “show that the arrest was not legal,
i.e., the arrest was not based on probable cause,” he cannot “prevail on a claim of false arrest or
false imprisonment.” Id. Accordingly, defendants were entitled to summary disposition on these
claims.1

                                   C. GROSS NEGLIGENCE

       In order to proceed with a gross negligence claim, the plaintiff must raise a material
question whether “the conduct was so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” Maiden, 461 Mich at 129. Additionally, a plaintiff must plead facts


1
  Notably, plaintiff never explains how he can have a valid false imprisonment claim when (by
his own admission) his arrest and confinement for assaulting, resisting, or obstructing an officer
were justified. Additionally, he never presented any substantive argument concerning the false
imprisonment claim below. Moreover, as with the last issue, plaintiff identifies the standards
that must be met for these claims, then provides a list of facts from his complaint, and finally
states in conclusory fashion that there was “absolutely no lawful basis to arrest and imprison”
plaintiff and thus “the decision of the trial court must be reversed.” Any analysis was again
lacking.


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that amount to gross negligence and not actions that also constitute intentional torts. Sudul v
Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997) (“We specifically agree with the
discussion in the dissent/concurrence regarding the nonexistence of a tort called ‘assault and
battery by gross negligence.’ We especially also hold that an individual employee’s intentional
torts are not shielded by our governmental immunity statute, a proposition that too frequently is
mired in confusion.”).2

        Here, Bailey pleaded no facts amounting to gross negligence separate and apart from his
allegation of intentional torts.3 The circuit court properly granted summary disposition of this
claim.

                                 D. ASSAULT AND BATTERY

        “An assault is . . . any intentional unlawful offer of corporal injury to another person by
force, or force unlawfully directed toward the person of another, under circumstances which
create a well-founded apprehension of imminent contact, coupled with the apparent present
ability to accomplish the contact.” Espinoza v Thomas, 189 Mich App 110, 119; 472 NW2d 16
(1991). In Odom v Wayne Co, 482 Mich 459, 471-472; 760 NW2d 217 (2008), our Supreme
Court held that MCL 691.1407(2) did not abrogate the common-law immunity that government
employees enjoy for intentional torts. Individual “lower ranking” government employees such
as defendants are entitled to qualified immunity from tort liability if they meet all the following
conditions:



2
  In Bletz v Gribble, 641 F3d 743, 756 (CA 6, 2011), the Sixth Circuit interpreted Michigan law
in this regard as follows:
       Although establishing that a governmental official’s conduct amounted to “gross
       negligence” is a prerequisite to avoiding that official’s statutory governmental
       immunity, it is not an independent cause of action. The only cause of action
       available to plaintiff for allegations of this nature would be for assault and battery.
       See, e.g., Van Vorous v Burmeister, 262 Mich App 467, 483; 687; NW2d 132
       (2004)[, overruled on other grounds by Odom v Wayne Co, 482 Mich 459, 473 n
       33; 760 NW2d 217 (2008)] (“Thus, plaintiff’s claim of gross negligence is fully
       premised on her claim of excessive force. As defendants correctly note, this
       Court has rejected attempts to transform claims involving elements of intentional
       torts into claims of gross negligence. Thus, plaintiff did not state a claim on
       which relief could be granted.”) (citations omitted); see also Livermore [ex rel
       Rohm v Lubelan, 476 F 3d 397, 408 (CA 6, 2007)] (rejecting a gross-negligence
       claim against an officer-defendant because it was “undoubtedly premised on the
       intentional tort of battery” where it was based on a shooting that resulted in
       death).
3
  In his brief on appeal, Bailey does not specifically identify the acts (or inactions) that he
believes were grossly negligent.


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       (1) the acts were taken during the course of employment and the employees were
       acting, or reasonably believed that they were acting, within the scope of their
       authority, (2) the acts were taken in good faith, and (3) the acts were
       discretionary-decisional, as opposed to ministerial-operational. [Id. at 468.]

Our Supreme Court “has described a lack of good faith as ‘malicious intent, capricious action, or
corrupt conduct’ or ‘willful and corrupt misconduct.’” Id. at 475, quoting Veldman v Grand
Rapids, 275 Mich 100, 113; 265 NW 790 (1936), and Amperse v Winslow, 75 Mich 234, 245; 42
NW 823 (1889). Unlike ministerial acts, discretionary acts require personal deliberation,
decision, and judgment. Odom, 482 Mich at 475-476.

       Bailey alleges that defendant Stanford threatened him during an interrogation and
deliberately and intentionally spit in his face at least twice. Specifically, Bailey alleged in his
complaint that:

       66. During the May 25, 2012, interrogation, Defendant Stanford threatened and
           scared Plaintiff by saying words to the effect of, “Don’t tell me what to
           fucking do” and “You’re in my house now, I can kick your ass.”

       67. During the May 25, 2012, interrogation of Plaintiff by Defendants Fitzpatrick
           and Stanford at the Ann Arbor Police Department, Defendant Stanford, who
           was less than one foot away from Plaintiff’s face, deliberately and
           intentionally spit in Plaintiff’s face on at least two occasions and also made
           threatening statements.

        Whether Stanford’s threats amount to an assault presents a question of fact that must be
resolved by a jury. Stanford’s threat that he could “kick [Bailey’s] ass” because Bailey was in
the police station suffices to permit an inference that Bailey reasonably apprehended imminent
contact. Similarly, a jury will have to determine whether Stanford actually spat in Bailey’s face
or, as defendants contend, saliva from Stanford’s mouth contacted Bailey. See People v Terry,
217 Mich App 660, 663; 553 NW2d 23 (1996) (“spitting upon a person is a battery”). The
presence of fact questions regarding whether the events occurred and Stanford’s intent render
summary dismissal inappropriate. Dextrom, 287 Mich App at 429.

        We affirm the circuit court’s order granting defendants’ motion for summary disposition
and dismissing plaintiff’s complaint against defendants, except with regard to plaintiff’s assault
and battery claims against defendant Stanford, which we reverse. We remand for reinstatement
of plaintiff’s assault and battery claims against defendant Stanford. We do not retain
jurisdiction.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Stephen L. Borrello
                                                            /s/ Elizabeth L. Gleicher




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