                                    File Name: 09a0039n.06
                                    Filed: January 16, 2009

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 08-1035

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

WILLIAM FLOWERS,

          Plaintiff-Appellant,

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
CITY OF DETROIT, LANCE                                    COURT FOR THE EASTERN
NEWMAN, JAMES FISHER,                                     DISTRICT OF MICHIGAN
ANTHONY JACKSON, KURTISS
STAPLES, AND OTHER UNKNOWN
OFFICERS, in individual and
official capacities,

          Defendants-Appellees.



                                                     /

Before:          MARTIN, and COOK, Circuit Judges, and WATSON, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff William Flowers was arrested and

charged with the murder of an acquaintance, John Smiley. These charges were dismissed, and

Flowers sued the City of Detroit, four of its police officers, and other unknown officers alleging

false arrest and false imprisonment, malicious prosecution, gross negligence, abuse of process,

and violations of the Fourth Amendment. The district court granted summary judgment in



          *
         The Honorable Michael H. Watson, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 08-1035
Flowers v. City of Detroit, et al.
Page 2

Defendants’ favor, finding that Flowers was precluded from arguing lack of probable cause for

his arrest—an element of each of his claims—by collateral estoppel arising from a state court

judgment on the issue of probable cause. We find no error in the well-reasoned judgment of the

district court, and therefore AFFIRM.


                                                 I.

       On April 20, 2004, Detroit police officers responded to a report of a shooting. Upon arrival,

they discovered that someone had killed John Smiley by shooting him in the head. Defendants

Newman, Staples, Fisher, and Jackson were the City of Detroit homicide detectives responsible for

investigating Smiley’s death.

       Later that day, investigators spoke to Loreen Rounds who was visiting Smiley’s apartment

when he was shot. In her written statement, Rounds gave investigators a false name; she later

explained she did this because she had outstanding warrants. She reported that Smiley had let two

men into the apartment, one whom she recognized as “Steve,” and another whose face she did not

see and could not identify. She said that shortly after Smiley and the two men walked into a back

bedroom, she heard a bang. Then, Steve and the other man emerged from the bedroom, threatened

her, forced her at gunpoint into a bedroom, and then stole items from the apartment and left. Rounds

also said that Flowers had spent the previous night in the apartment but had left around 7:30 or 8:00

a.m. to go to work.

       The next day, investigators visited Flowers at work and asked him (or, according to Flowers,

“ordered him”) to go with them to the police station to assist in the murder investigation. Flowers
No. 08-1035
Flowers v. City of Detroit, et al.
Page 3

told the officers that he was at home with his fiancée, Sharon Jackson, at the time of the murder. He

said that he and Jackson had been at Smiley’s apartment playing cards with Rounds and Smiley the

night before the murder and that he had spent the night there. According to Flowers, Jackson had

picked him up early the next morning to take him to work and that was the last time he had seen

Smiley.

       On April 22, a second investigator interviewed Rounds, and she gave a second written

statement. Rounds revealed that her earlier statement was not truthful because, in addition to giving

a false name, she had lied about not being able to identify the second man involved—she had known

all along it was Flowers. Rounds explained that she did not reveal Flowers’ identity in her first

written statement because, immediately after the murder, he had threatened to kill her if she did not

keep quiet.

       Later that day, Flowers learned from Jackson’s son that police had surrounded their home.

Flowers and Jackson went to the police station where Flowers was arrested. According to Flowers,

Jackson was willing to provide a statement corroborating Flowers’ account that he was at home with

her at the time of the murder, but the investigators did not get a written statement from Jackson. A

formal warrant was obtained two days later, on April 24, charging Flowers with first degree murder,

felony murder, felon-in-possession of a firearm, and as a habitual offender under Michigan’s statute

for possession of a firearm during commission of a felony. The warrant request was based on

Rounds’ second written statement. It did not mention Rounds’ previous statement, nor Jackson’s

offer to give a statement that she was with Flowers at the time of the murder.

       On May 14 a state judge presided over Flowers’ preliminary examination. At the hearing,
No. 08-1035
Flowers v. City of Detroit, et al.
Page 4

Rounds and Officer Newman, the investigator who had submitted the warrant request, testified.

After the county prosecutor ended his direct examination of each witness, the judge gave Flowers’

criminal defense attorney an opportunity to cross-examine the witnesses, which he declined. Once

the testimony concluded, the court heard arguments from the prosecution and defense counsel. The

court dropped the weapons charges, but found probable cause on the murder charges and bound

Flowers over for trial. The trial was supposed to begin on August 16, but Rounds, the prosecution’s

only witness, failed to appear and the court dismissed the murder charges.

       Flowers filed a complaint in state court under 42 U.S.C. § 1983 against the City of Detroit,

four named police officers, and other unknown officers alleging: false arrest and false imprisonment

(Count I), malicious prosecution (Count II), gross negligence (Count III), abuse of process (Count

IV), warrantless search and seizure without probable cause in violation of the Fourth Amendment

(Count V), malicious prosecution in violation of the Fourth Amendment (Count VI), and deliberate

indifference by the City of Detroit (Count VII). The Defendants removed the case to federal court

where the district court granted their motion for summary judgment on the ground that issue

preclusion barred Flowers from relitigating the existence of probable cause. Flowers appeals.


                                                II.

       This Court reviews de novo a district court’s decision to grant summary judgment. Bennett

v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005).


                                                III.

       We apply state law to determine whether Flowers, in this Section 1983 action, is precluded
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Flowers v. City of Detroit, et al.
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from challenging the state court’s determination of probable cause at a preliminary examination

hearing. Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001) (citing Haring v. Prosise,

462 U.S. 306, 313 (1983)). Under Michigan law, a party is precluded from re-litigating an issue

when:

        1) there is identity of parties across the proceedings, 2) there was a valid, final judgment in
        the first proceeding, 3) the same issue was actually litigated and necessarily determined in
        the first proceeding, and 4) the party against whom the doctrine is asserted had a full and fair
        opportunity to litigate the issue in the earlier proceeding.

Id. (citing People v. Gates, 452 N.W.2d 627, 630-31 (Mich. 1990)).

        Here, Flowers concedes that the first two elements are satisfied (same parties, final judgment)

but argues that his Section 1983 action is not the “same issue” as was litigated at the preliminary

hearing, and that he was not given a full and fair opportunity to litigate probable cause.


A. Same Issue Litigated

        Flowers argues that his claim focuses not on whether probable cause existed, but on whether

Defendants attempted to “frame” him by “misstat[ing] the facts and deliberately omitt[ing]

exculpatory evidence from the warrant request; thus, creating a false and incomplete version of the

facts in order to establish probable cause.”

        Darrah v. City of Oak Park held that a state court determination of probable cause did not

preclude a subsequent malicious prosecution claim where the plaintiff alleged that “the defendant-

officers had knowingly supplied the magistrate with false information in order to establish probable

cause.” 255 F.3d at 311. Later in Hinchman v. Moore, 312 F.3d 198, 202 (6th Cir. 2002), we

applied Darrah to allow a plaintiff’s claim to proceed where she alleged that detectives supplied the
No. 08-1035
Flowers v. City of Detroit, et al.
Page 6

state court with “a false version of the facts.” And more recently, in Peet v. City of Detroit, 502 F.3d

557, 566 (6th Cir. 2007), we observed that the exception to the usual preclusive effect of a state court

probable cause determination applies when there is evidence of a “police officer’s supplying false

information to establish probable cause.”

       Flowers contends that Defendants’ failure to state in the warrant request that Rounds had

made a previous statement (which included giving a false name and lying about her ability to identify

Flowers) created a false impression as to Rounds’ credibility. But as the district court observed,

Rounds’ previous statement, drug use, and changed story were all brought to light at the preliminary

examination. An imperfect witness is not the same thing as a “false” witness. Apart from the

challenge to how the Defendants portrayed Rounds, Flowers offers no evidence upon which a

reasonable jury could conclude that they deliberately provided the judge with false information.

Though Flowers characterizes the Defendants’ actions as “false,” the warrant request and transcript

of the preliminary examination does not support this accusation.

       Flowers also argues that investigators left out evidence “that was so clearly exculpatory [as]

to make the information provided to the judge false and incomplete.” Most troubling to Flowers is

the omission from the warrant request of any reference to Jackson’s willingness to give a statement

that he was with her at the time of the murder. He also maintains that the investigators should have

included a witness’ account that she saw two men leaving in a light blue truck. But neither Darrah

nor any of the cases to apply it held that the exception to issue preclusion applies by virtue of a lack

of detail in a warrant request. To the contrary, this Court has held that “precision” in warrant

requests “where there is probable cause to justify an arrest, is not a constitutional requirement.”
No. 08-1035
Flowers v. City of Detroit, et al.
Page 7

Peet, 502 F.3d at 565 n.2. Although in determining probable cause police officers may not “simply

turn a blind eye toward potentially exculpatory evidence known to them in an effort to pin a crime

on someone,” Ahlers v. Schebil, 188 F.3d 365, 371-72 (6th Cir. 1999), leaving out of a warrant

request the fact that the accused’s fiancée is willing to offer an alibi does not otherwise negate

probable cause. See Coogan v. Wixon, 820 F.2d 170, 173 (6th Cir. 1987), overruled on other

grounds, Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001). And Defendant Newman

testified that he delivered the entire homicide file along with the warrant request to the prosecutor

for his review. Although in some cases material omissions from a warrant request may be so

egregious as to make it “false” for purposes of establishing probable cause, the evidence here, even

considered in the light most favorable to Flowers, does not support such a finding.

       Thus, despite Flowers’ characterization of Defendants’ conduct as “false,” Flowers failed to

offer facts that demonstrate that this case fits within the Darrah exception for claims supported by

evidence of false information.


B. Full and Fair Opportunity

       Moreover not every preliminary examination determination will preclude a subsequent

Section 1983 action. Coogan, 820 F.2d at 175. If the preliminary examination is “little more than

a formalit[y]” or where “strategic concerns” prevent the exercise of fully adversarial proceeding, the

state determination should not be given preclusive effect. Id. But on the other hand, “where the state

affords an opportunity for an accused to contest probable cause at a preliminary hearing and the

accused does do, the finding of probable cause . . . should foreclose relitigation of that finding in a
No. 08-1035
Flowers v. City of Detroit, et al.
Page 8

subsequent § 1983 action.” Id.

       A review of the transcript of the preliminary examination hearing demonstrates that it was

not a “formality.” Indeed, the court gave Flowers’ defense counsel the opportunity to cross-examine

the witnesses. Although he declined, he was not deprived of a “fair opportunity” to do so.

Moreover, Flowers’ counsel successfully challenged the weapons charge during the oral argument

that followed the witnesses’ testimony. That the judge “cut off” the prosecutor’s line of questioning

regarding Rounds’ first written statement does not mean that counsel was deprived of a fair

opportunity to litigate probable cause; the transcript reveals that it was actually Flowers’ counsel

who objected on “foundation” grounds to the line of questioning. Thus, the district court properly

concluded that Flowers was afforded and full and fair opportunity to litigate the existence of

probable cause at his preliminary examination hearing.


                                                IV.

       The district court correctly determined that the preliminary examination hearing featured the

same parties, a valid final judgment, the same issue at the center of litigation, and a full and fair

opportunity for Flowers to litigate the issue. Flowers is therefore barred in his Section 1983 claim

from relitigating the existence of probable cause and we AFFIRM the district court’s judgment.
