                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 15a0109p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 ANDRE JOHNSON,                                         ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        │       No. 14-5870
        v.                                              │
                                                         >
                                                        │
 JEREMY MOSELEY and LAURA THOMAS,                       │
                        Defendants-Appellants.          │
                                                        ┘
                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville
                  No. 3:13-cv-01123—Kevin H. Sharp, Chief District Judge.
                               Decided and Filed: June 2, 2015

             Before: DAUGHTREY, McKEAGUE and STRANCH, Circuit Judges.

                                     _________________

                                          COUNSEL

ON BRIEF: Keli J. Oliver, Derrick C. Smith, DEPARTMENT OF LAW OF THE
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
Nashville, Tennessee, for Appellants. Allen Woods, THE LAW OFFICES OF WOODS AND
WOODS, Nashville, Tennessee, for Appellee.

                                     _________________

                                          OPINION
                                     _________________

       McKEAGUE, Circuit Judge. This is an appeal from an interlocutory ruling denying two
police officers’ motion to dismiss plaintiff’s civil rights claim for malicious prosecution.
Defendant officers asserted that the claim is barred by qualified immunity because plaintiff’s
complaint does not include fact allegations of specific conduct plausibly making out a violation




                                               1
No. 14-5870                            Johnson v. Moseley, et al.                       Page 2

of clearly established federal law. Because we find that the district court’s denial of relief was
based on an overly charitable reading of plaintiff’s complaint, we reverse.

                                                 I

       Plaintiff Andre Johnson is a former officer in the Metropolitan Nashville Police
Department. In October 2012, he was twice arrested based on domestic violence complaints by
his now-estranged wife, Terri L. Smith-Johnson. The second arrest was made, pursuant to
warrant, by fellow Metropolitan Nashville Police Officers Jeremy Moseley and Laura Thomas,
defendants-appellants in this case. In March 2013, Johnson stood trial on the domestic violence
charges and was acquitted by the jury. Johnson subsequently filed this action against his
estranged wife, Officers Moseley and Thomas, and the Metropolitan Government of Nashville
and Davidson County.

       The complaint purports to set forth claims against all four defendants, collectively, for
federal civil rights violations based on false arrest and malicious prosecution, as well as state law
claims for malicious prosecution and intentional infliction of emotional distress. Defendant
Smith-Johnson has not been served and no appearance has been filed on her behalf. The other
defendants moved for dismissal on the pleadings. Fed. R. Civ. P. 12(b)(6). The district court
granted the motions to dismiss in part, but denied the officers’ motion as to plaintiff’s federal and
state law claims for malicious prosecution. On appeal, the officers challenge exclusively the
denial of their motion to dismiss the federal claim for malicious prosecution.

       The federal claim for malicious prosecution against the officers is based on allegations
that Smith-Johnson’s medical records contained information inconsistent with details in her
domestic violence accusations. The complaint also cites police department policies that, if
heeded by officers conducting a proper investigation, would have disclosed reasons to question
the veracity of Smith-Johnson’s accusations and question whether there was probable cause to
prosecute Johnson on the domestic violence charges. By nonetheless “pressing” prosecutors to
pursue the charges, Officers Moseley and Thomas allegedly participated in malicious
prosecution, in violation of Johnson’s Fourth Amendment rights. The district court held the
allegations sufficient to withstand the officers’ motion to dismiss based, in part, on qualified
No. 14-5870                            Johnson v. Moseley, et al.                         Page 3

immunity. The district court’s ruling, though interlocutory, is subject to immediate review under
the collateral order doctrine. Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009).

                                                  II

       The district court’s rejection of the defendant officers’ “qualified immunity defense at the
pleading stage, posing a question of law, is reviewed de novo.” Rondigo, L.L.C. v. Twp. of
Richmond, 641 F.3d 673, 680 (6th Cir. 2011). Tested under Rule 12(b)(6), the complaint is
viewed in the light most favorable to plaintiff, fact allegations in the complaint are accepted as
true, and all reasonable inferences are drawn in favor of plaintiff. Id. However, “a legal
conclusion couched as a factual allegation” need not be accepted as true. Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff’s obligation to provide the “grounds” for
the claimed entitlement to relief “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The
factual allegations must “raise a right to relief above the speculative level.” Id. The complaint
must state a claim that is plausible on its face. That is, the court must be able to draw a
“reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). This “plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement
to relief.”’” Id. (quoting Twombly, 550 U.S. at 557).

       Moreover, plaintiff’s civil rights claim against the individual officers in their individual
capacities implicates qualified immunity. Qualified immunity, if it applies, is a defense not just
against liability, but against suit itself. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Hence,
insubstantial claims against government officials should be resolved as early in the litigation as
possible, preferably prior to broad discovery. Id.

       Qualified immunity ordinarily applies unless the contours of the asserted right were
sufficiently clear that every reasonable official would have understood that what he was doing
violated that right. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Qualified immunity
“gives ample room for mistaken judgments” by protecting all but the plainly incompetent or
No. 14-5870                            Johnson v. Moseley, et al.                        Page 4

those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)
(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)). Qualified immunity applies irrespective
of whether the official’s error was a mistake of law or a mistake of fact, or a mistake based on
mixed questions of law and fact. Pearson, 555 U.S. at 231.

         Since the defendant officers have raised the qualified immunity defense, plaintiff bears
the burden of showing that defendants are not entitled to qualified immunity.               Reilly v.
Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012). At the pleading stage, this burden is carried by
alleging facts plausibly making out a claim that the defendant’s conduct violated a constitutional
right that was clearly established law at the time, such that a reasonable officer would have
known that his conduct violated that right. Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.
2015). “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a
defendant pleading qualified immunity is entitled to dismissal before the commencement of
discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (observing that “bare allegations . . . should not suffice to subject government
officials either to the costs of trial or to the burdens of broad-reaching discovery.”)). Plaintiff is
thus obliged to plead facts that, viewed in the light most favorable to him, make out a violation
of a constitutional right so clearly established in a particularized sense that a reasonable officer
confronted with the same situation would have known that his conduct violated that right. al-
Kidd, 131 S. Ct. at 2083–84. Moreover, the allegations must demonstrate that each defendant
officer, through his or her own individual actions, personally violated plaintiff’s rights under
clearly established law. Iqbal, 556 U.S. at 676; Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir.
2014).

                                                 III

         Considering the district court’s opinion in light of these standards, the errors in its
analysis are apparent. While the court acknowledged the governing standards and fairly applied
them in dismissing plaintiff’s false arrest claim, it did not do so in relation to the malicious
prosecution claim.

         To state a valid federal civil rights claim for malicious prosecution in violation of the
Fourth Amendment, a plaintiff must allege facts meeting four elements:               “(1) a criminal
No. 14-5870                            Johnson v. Moseley, et al.                        Page 5

prosecution was initiated against the plaintiff and the defendant made, influenced, or participated
in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as
a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from
the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff’s favor.”
Robertson, 753 F.3d at 616.

       There is no dispute as to several of these elements. Plaintiff Johnson was undisputedly
arrested and prosecuted and acquitted in relation to the domestic violence complaints made by
his wife. Also unchallenged is the district court’s ruling that the false arrest claims against the
defendant officers could not be maintained because they were entitled to rely on the arrest-
warrant-issuing judicial officer’s determination that there was probable cause to arrest. This
ruling having not been challenged on appeal, and plaintiff having not alleged that defendant
officers engaged in any misconduct in effecting his arrest, we accept that there was probable
cause to arrest and initiate prosecution. We also assume that after his arrest plaintiff was
released on bond pending trial and that the conditions of his release represent a sufficient
deprivation of his liberty to satisfy the third element. See Johnson v. City of Cincinnati, 310 F.3d
484, 493 (6th Cir. 2002).

       What remains in question is whether plaintiff has alleged facts giving rise to a reasonable
inference that either of the defendant officers “influenced or participated” in the prosecutor’s
decision to continue the prosecution after he or she had knowledge of facts that would have led
any reasonable officer to conclude that probable cause had ceased to exist and that continuing the
prosecution would be in violation of plaintiff’s clearly established constitutional rights.

       The district court answered this question in the affirmative based on three flawed
premises. First, the court defined the relevant constitutional right only in a generalized sense,
holding that the right to be free from malicious prosecution was clearly established well before
1999. There can be no doubt that the Sixth Circuit recognizes a “constitutionally cognizable
claim of malicious prosecution under the Fourth Amendment.” Sykes v. Anderson, 625 F.3d 294,
308 (6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). “Yet, that
is not enough.” Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). To avoid the qualified immunity defense, plaintiff was
No. 14-5870                           Johnson v. Moseley, et al.                         Page 6

required to plead facts making out a violation of a constitutional right clearly established in a
“particularized sense.” That is, the right said to have been violated must be defined “in light of
the specific context of the case, not as a broad general proposition.” Id. at 198 (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)).

       Although neither plaintiff nor the district court has defined the right to freedom from
malicious prosecution in such a particularized sense, both have relied on our analysis in Sykes v.
Anderson. Indeed, Sykes is instructive. In Sykes, we recognized that a showing of “malice” is
not necessarily essential to a malicious prosecution claim under the Fourth Amendment. Sykes,
625 F.3d at 309–10. But we also observed that the requisite participation in the decision to
prosecute after probable cause has ceased to exist must amount to “aiding” the decision in more
than a passive or neutral way.        Id. at 309 n.5.     And there must be some element of
blameworthiness or culpability in the participation—albeit less than “malice.” That is, truthful
participation in the prosecution decision is not actionable.          Id. at 314.      The requisite
blameworthiness was made out in Sykes by evidence that both defendant officers testified for the
prosecution and each made false statements, made flagrant misrepresentations, or failed to
disclose key items of evidence. Id. at 301–02, 306–07, 311–17.

       We further clarified the point in Robertson, 753 F.3d at 617, holding that even false
testimony is not actionable as malicious prosecution unless deliberate—i.e., given with
knowledge of, or reckless disregard for, its falsity. “Allegations of negligence or innocent
mistake are insufficient.” Id. at 617 n.7 (quoting Franks v. Delaware, 438 U.S. 154, 171
(1978)).   Even more recently, the rule was succinctly stated in Newman v. Township of
Hamburg, 773 F.3d 769 (6th Cir. 2014). A police officer violates a suspect’s clearly established
right to freedom from malicious prosecution under the Fourth Amendment “only when his
deliberate or reckless falsehoods result in arrest and prosecution without probable cause.” Id. at
772.   Again, we see that a defendant’s participation must be marked by some kind of
blameworthiness, something beyond mere negligence or innocent mistake, to satisfy the
elements of a malicious prosecution claim under the Fourth Amendment.

       If plaintiff’s allegations are evaluated in light of this clearly established law, they clearly
fail to pass muster.   Plaintiff has not alleged that Moseley or Thomas participated in the
No. 14-5870                           Johnson v. Moseley, et al.                       Page 7

investigation after his arrest. He has not alleged that Moseley or Thomas actually knew of
grounds to question probable cause after the arrest. He has not alleged that Moseley or Thomas
testified for the prosecution at any stage, much less that either of them testified falsely or
recklessly. He has not alleged that Moseley or Thomas “pressed” for prosecution in any non-
neutral or blameworthy way.        The district court nonetheless found plaintiff’s allegations
sufficient partly because it erroneously viewed the clearly established law only in a generalized
sense.

         Second, the district court deemed allegations of inconsistencies in Smith-Johnson’s
domestic assault accusations sufficient to justify a reasonable inference that probable cause to
continue the prosecution had ceased to exist when the defendant officers allegedly “pressed” for
prosecution. The alleged inconsistencies, viewed in the light most favorable to plaintiff, give
cause to question the accuracy of Smith-Johnson’s complaints and even question her credibility.
Yet, inasmuch as she persisted in her accusations that Johnson twice assaulted her to the extent
of testifying under oath in trial, the alleged inconsistencies cannot reasonably be deemed to
compel the conclusion that probable cause had ceased to exist. “Probable cause exists if the facts
and circumstances known to the officer warrant a prudent man in believing that the offense has
been committed.” Id. (quoting Henry v. United States, 361 U.S. 98, 102 (1959) (emphasis
added)).    The fact that the jury did not consider Smith-Johnson’s testimony sufficiently
persuasive to find Johnson guilty of domestic assault beyond a reasonable doubt does not
establish that probable cause was lacking when the trial began. See id. at 773 (“Because there is
no requirement that the defendant to a malicious prosecution charge must have evidence that will
ensure a conviction, not every failed criminal prosecution will sustain a subsequent malicious-
prosecution suit.” (quoting Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005))).

         Further, plaintiff has not alleged that either Moseley or Thomas was personally involved
in the post-arrest investigation or that either of them actually “knew” of reasons to doubt or
question Smith-Johnson’s accusations.         Rather, the complaint alleges essentially that
“defendants,” collectively, pursued the prosecution even after the officers should have known, if
a proper investigation had been conducted, reasons to question the accuracy or veracity of Smith-
Johnson’s accusations. This “should have known” allegation, implying that Moseley and/or
No. 14-5870                               Johnson v. Moseley, et al.                             Page 8

Thomas failed to conduct a proper investigation, amounts to no more than a charge of negligence
or innocent mistake, not the sort of “deliberate or reckless falsehood” or otherwise blameworthy
conduct required to make out a valid malicious prosecution claim. See Newman, 773 F.3d at 772
(noting that a showing of negligence or lack of attention to detail does not amount to malicious
prosecution).1 The complaint does not even allege that Smith-Johnson’s accusations were false,
much less that Moseley or Thomas participated in the prosecution in any false or misleading
way. Similarly insufficient is plaintiff’s allegation that defendants “instigated or participated in”
or “pressed” the prosecution. Again, absent allegation of blameworthy conduct, such “neutral”
participation is insufficient to sustain a facially valid malicious prosecution claim.

        Third, although the district court noted that plaintiff’s allegations lacked details, it
accepted them as sufficient to meet the notice pleading requirements of Rule 8(a) and warrant
further discovery proceedings. Fed. R. Civ. P. 8(a). Despite the insufficiency of plaintiff’s
allegations, the court withheld dismissal based on the possibility that discovery might disclose
specific facts substantiating the claim. This ignores the fact that plaintiff, having sued defendant
officers for violation of his civil rights, to overcome their assertion of qualified immunity, was
obliged to allege facts describing how each defendant’s conduct violated a federally protected
right under clearly established law. Iqbal, 556 U.S. at 684–86; Rondigo, 641 F.3d at 681.
Because, as explained above, plaintiff’s complaint does not set forth facts meeting this
requirement, the claim is subject to dismissal.

        To be clear, we are not enforcing a “heightened pleading requirement” that would run
afoul of Crawford-El v. Britton, 523 U.S. 574 (1998); see Goad v. Mitchell, 297 F.3d 497, 501–
04 (6th Cir. 2002). Rather, consistent with Crawford-El’s admonition that “firm application of
the Federal Rules of Civil Procedure is fully warranted” where qualified immunity is asserted,
we enforce the non-controversial requirement that plaintiff “put forward specific, nonconclusory
factual allegations” establishing a cognizable injury in order to withstand a prediscovery motion
to dismiss. Id. at 503–04 (quoting Crawford-El, 523 U.S. at 597–98). The district court’s ruling
that plaintiff is entitled to discovery notwithstanding his conclusory allegations flies in the face


        1
          Moreover, even if the complaint were construed as alleging that the defendant officers knew of the
inconsistencies, it would still fall short. As indicated, the alleged inconsistencies weaken the probable cause
showing; they do not necessarily defeat it.
No. 14-5870                          Johnson v. Moseley, et al.                       Page 9

of qualified immunity’s purpose of resolving insubstantial claims as early as possible so as to
avoid unnecessarily subjecting government officials to the disruptive burdens of litigation. See
Mitchell, 472 U.S. at 525–26; Goad, 297 F.3d at 503–05.

       The court’s ruling, allowing plaintiff to conduct discovery that may uncover
substantiating facts, also undercuts counsel’s Rule 11 obligation to conduct a reasonable
investigation and uncover evidentiary support for fact allegations before filing the complaint.
Fed. R. Civ. P. 11(b)(3). Had counsel undertaken such an investigation and uncovered facts
facially substantiating the malicious prosecution claims—facts inadvertently omitted from the
original complaint—counsel would naturally have moved the district court for leave to amend
the complaint so as to augment the allegations. That counsel made no such motion is telling.
And no less telling is it that plaintiff’s appellate briefing is also devoid even of argument
attempting to put flesh on his “bare bones” allegations. He maintains simply that his allegations,
conclusory though they be, are sufficient. We are not persuaded.

                                               IV

       Accordingly, the district court’s denial of the defendant officers’ motion to dismiss
plaintiff’s federal claim for malicious prosecution is REVERSED. The case is REMANDED
for entry of an order dismissing this claim against defendants Moseley and Thomas, and for
further proceedings, as appropriate, on plaintiff’s state law claim for malicious prosecution
against them, as well as on plaintiff’s outstanding claims against defendant Smith-Johnson.
