                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0611n.06

                                         No. 16-1451
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Nov 17, 2016
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

VICTOR CAMINATA,                                        )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )
                                                             ON APPEAL FROM THE
                                                        )
                                                             UNITED STATES DISTRICT
COUNTY OF WEXFORD, a Municipal corporation;             )
                                                             COURT FOR THE WESTERN
TRENT TAYLOR, in his individual capacity;               )
                                                             DISTRICT OF MICHIGAN
BRIAN ROOD, in his individual capacity;                 )
MICHAEL JENKINSON, in his individual capacity,          )
                                                        )
       Defendants-Appellees.                            )


BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Plaintiff Victor Caminata appeals the district

court’s grant of summary judgment to Defendant Michigan State Police Sergeant Michael

Jenkinson, a certified fire investigator, in Caminata’s 42 U.S.C. § 1983 action arising from his

conviction and sentence for arson, which were subsequently vacated. The sole issue on appeal is

whether Jenkinson is entitled to qualified immunity for his actions during an investigation that

contributed to Caminata’s conviction and four years’ imprisonment. Because Caminata has not

shown that Jenkinson violated his constitutional rights, we AFFIRM.

                                        I. Background

       On March 2, 2008, Caminata was at his girlfriend’s house when a fire broke out.

Caminata claims he went outside, saw fire escaping from the home’s masonry-block chimney,

climbed the roof, and used a chimney fire suppressant in an attempt to extinguish the fire. The

fire caused the roof to collapse and destroyed the home. The masonry-block chimney vented
No. 16-1451, Caminata v. County of Wexford, et al


heat from a wood stove. This chimney was enclosed by the wood-framed walls of the house. In

addition to the masonry-block chimney, the home was partially heated by a boiler system that

vented through a metal chimney pipe, which was enclosed by a wood chimney chase.

       Sergeant Brian Rood of the Wexford County Sheriff’s Department conducted the first

inspection of the fire scene on the day of the fire. Rood photographed the house, and his pictures

revealed that the masonry-block chimney’s thimble hole1 was not covered by any part of the

wood frame. On March 4, 2008, defendant Michael Jenkinson, a Michigan State Police Sergeant

and certified fire investigator, inspected the scene.      He did not speak to Rood before

investigating. Contrary to Rood’s findings, Jenkinson, after reconstructing the masonry-block

chimney’s since-collapsed wood frame (“the board reconstruction”), determined that this

chimney’s thimble hole had been covered by a wood board. He reported that the wood board

that he believed had covered the thimble hole was not fire-damaged, and that he thus concluded

that a chimney fire was an unlikely cause of the house fire. Jenkinson did not make a specific

finding as to the origin of the fire, but reported that human involvement was possible. Jenkinson

took 115 photographs during this initial investigation. He also spoke with Fire Chief Phil Mizga

who expressed doubts about Caminata’s claim that this was a chimney fire.

       Jenkinson, along with James Raad, an insurance company investigator, returned to the

fire scene two weeks later, after a Michigan State Police Trooper received an anonymous tip that

Caminata had set the fire. During this investigation, Caminata’s girlfriend’s step-father informed

Jenkinson that he believed Caminata had intentionally set the fire. Jenkinson stated in his report

that although Caminata claimed he lit the wood stove approximately five hours before the fire

       1
         A thimble hole is a hole in a masonry chimney that allows for connecting a stovepipe to
the chimney. A fire could originate at a thimble hole as a result of hot gases escaping from the
chimney.


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No. 16-1451, Caminata v. County of Wexford, et al


started, it would be “absolutely impossible” for the wood to have been burning for that long

based on the wood’s appearance. R. 94-2, PID 2341. Finally, Jenkinson reported that there were

two isolated pockets of burning that were consistent with a “heavy, direct flame source having

been applied,” and that these were suggestive of multiple failed attempts at ignition consistent

with an arson fire. R. 94-2, PID 2340. Jenkinson took an additional twenty photographs during

this second investigation. The following day, Jenkinson learned that faulty wiring had been

ruled out as a potential cause of the fire. On March 26, 2008, Jenkinson filed his supplemental

incident report, which concluded that the fire was caused by arson. Caminata was arrested and

charged with arson of a dwelling house under M.C.L. 750.72. He was tried, convicted, and on

July 8, 2009, sentenced to serve nine to forty years in prison. The Michigan Court of Appeals

affirmed the conviction, and the Michigan Supreme Court denied leave to appeal. People v.

Caminata, 793 N.W.2d 204 (Mich. 2011).

       In 2013, the University of Michigan Innocence Clinic secured a new trial for Caminata

on the ground that Jenkinson and Raad’s investigations were inadequate. The Innocence Clinic

alleged that Jenkinson’s board reconstruction was done improperly, and that he incorrectly

analyzed the isolated pockets of burning that he observed during his follow-up inspection. In

response, the Wexford County Prosecutor’s Office asked Bureau of Alcohol, Tobacco, Firearms,

and Explosives Agent Michael Marquardt, a certified fire instructor, to review the investigation.

After reviewing the case file and interviewing Jenkinson, Marquardt concluded that there was

sufficient data to support classifying the fire as arson.

       The night before the evidentiary hearing on Caminata’s motion for relief from judgment,

Assistant Attorney General Lauryl Scott discovered two developed photographs and a number of

undeveloped photographs of the fire scene. The next day, Scott met with Marquardt and Rood,



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No. 16-1451, Caminata v. County of Wexford, et al


and Rood revealed for the first time that he thought Jenkinson’s board reconstruction was

incorrect and that Rood might have taken more photographs than were in the case file. Rood

testified during his deposition that he believes that about two rolls of film that he took during his

inspection were not produced to the defense.

       After the district court denied Scott’s request for an adjournment to allow time for

Marquardt to analyze the newly found photographs, Scott stipulated that Caminata’s motion for

relief from judgment be granted.2

       On February 28, 2014, Caminata brought this action under 42 U.S.C. § 1983 alleging

Fourth and Fourteenth Amendment violations against Jenkinson, Rood, Trent Taylor, the officer

in charge of Caminata’s case, and the County of Wexford.3               The district court granted

Jenkinson’s motion for summary judgment, concluding that his actions were at most negligent,

and thus protected by qualified immunity. The court denied the summary judgment motions of

Rood, Taylor, and the County of Wexford, and they subsequently entered into settlement

agreements with Caminata.

                                            II. Analysis

       Caminata argues that Jenkinson is not entitled to qualified immunity for his alleged

violations of the Fourth and Fourteenth Amendments.             Caminata alleges that Jenkinson

deliberately fabricated the evidence at the fire scene in order to rule out the possibility of a

chimney fire.     Specifically, Caminata asserts that Jenkinson’s board reconstruction and



       2
         Marquardt testified that although he concluded that the new photographs enhanced
Jenkinson’s testimony, he had also seen Jenkinson testify poorly in a different case. Scott was
troubled by Marquardt’s “waffling” about whether to retry the case and decided to dismiss the
charges against Caminata. R. 66-5, PID 1525.
       3
         Caminata also brought a claim against Chad Sprik, but the parties stipulated to dismiss
Sprik with prejudice.


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No. 16-1451, Caminata v. County of Wexford, et al


conclusions as to the failed attempts at ignition were incorrect. Caminata further argues that

Jenkinson knowingly withheld his fabrications from the prosecution.

                                       A. Standard of Review

        We review a district court’s grant of summary judgment de novo. Dixon v. Univ. of

Toledo, 702 F.3d 269, 273 (6th Cir. 2012). “Summary judgment is appropriate if there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Ondo

v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). “We review the evidence and draw all

inferences in the light most favorable to the nonmoving party.” Dixon, 702 F.3d at 273. The

question is whether the facts, when construed most favorably to Caminata, show that Jenkinson

violated Caminata’s clearly established constitutional rights.

                                       B. Qualified Immunity

        Qualified immunity shields a government official from liability unless his conduct

violated “clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity

‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or

those who knowingly violate the law.’” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)

(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). To determine whether qualified immunity

applies, the court must decide whether Jenkinson’s actions violated Caminata’s constitutional

rights, and whether the rights at issue were clearly established at the time of the violation. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009). The court may address either prong of the

analysis first. See id at 236.




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No. 16-1451, Caminata v. County of Wexford, et al


                            C. Caminata’s Fourth Amendment Claims

       Caminata alleges two Fourth Amendment claims against Jenkinson:              fabrication of

evidence and malicious prosecution. Since our determination whether a reasonable jury could

find that Jenkinson intentionally manipulated the scene of the fire or acted with a reckless

disregard for the truth is a necessary element of both claims, we consider the claims together.

       “A Fourth Amendment claim for fabrication of evidence lies where a defendant

knowingly manufactures probable cause, thereby effecting a seizure.”         Robertson v. Lucas,

753 F.3d 606, 616 n.5 (6th Cir. 2014); see also Gregory v. City of Louisville, 444 F.3d 725, 737

(6th Cir. 2006) (“It is well established that a person’s constitutional rights are violated when

evidence is knowingly fabricated and a reasonable likelihood exists that the false evidence would

have affected the decision of the jury.”).

       “To succeed on a Fourth Amendment malicious prosecution claim . . . a plaintiff must

prove the following:     (1) a criminal 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. Although actual

“malice” is not required to succeed on a malicious prosecution claim, a defendant must have

made “deliberate or reckless falsehoods,” and “mere negligence” will not create liability.

Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015).

       Caminata relies heavily on Gregory, a case involving a forensic examiner’s inaccurate

report regarding the number of hairs she recovered from the scene of a rape. Although the

examiner testified that she had “found five hairs,” and that these hairs matched the plaintiff’s



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No. 16-1451, Caminata v. County of Wexford, et al


hair, a later deposition revealed that the examiner had actually recovered seven hairs, two of

which were non-matching. Gregory, 444 F.3d at 732, 734. Furthermore, the plaintiff alleged

that none of the hairs were in fact a match, and the plaintiff’s expert testified that the examiner’s

findings were “far afield of what any reasonable forensic examiner would find from the

evidence[.]” Id. at 744. This court concluded that summary judgment was inappropriate, finding

that a reasonable jury could conclude that the examiner “deliberately withheld the existence of

those two nonmatching hairs” and “fabricated her report.” Id.

       This case, however, is distinguishable from Gregory. There, the allegedly false forensic

report and testimony did not arise from a flawed investigation; rather, the examiner admitted

knowing there were seven hairs, yet chose to report only five. Moreover, the parties disagreed as

to what the hair evidence showed, creating a disputed issue of material fact that was

inappropriate for resolution in an interlocutory appeal.        Id. at 744–745.     Here, although

Jenkinson’s investigation and conclusions may have been flawed, there is no evidence to suggest

that his report contained deliberate omissions or reckless falsehoods.

       While Caminata has cast doubt upon the soundness of Jenkinson’s conclusions, he has

failed to show that Jenkinson acted intentionally or recklessly in his investigation. Caminata’s

primary evidence supporting his claims is expert testimony characterizing aspects of Jenkinson’s

investigation as “huge mistakes” that would not be expected of someone with his level of

experience. R. 99-2, PID 2421–23. Indeed, when presented with photographs Raad took of the

areas that Jenkinson opined had been burned with a “heavy, direct flame source,” Jenkinson

acknowledged that his conclusions appear to have been incorrect.           R. 88-1, PID 2282–83.

Although this testimony impugns the quality of Jenkinson’s investigation, it is insufficient to

establish knowing fabrication or deliberate or reckless falsehoods, rather than mere negligence.



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No. 16-1451, Caminata v. County of Wexford, et al


       Jenkinson spent multiple hours at the site, produced an eight-page report of his findings,

and took 115 photographs. At the scene, Jenkinson spoke with Fire Chief Mizga who stated that

he was skeptical of Caminata’s report that the fire originated as a small chimney fire. Jenkinson

analyzed the state of the wood in the stove, and his conclusions supported the fire chief’s doubts.

During his follow-up investigation, Jenkinson took an additional twenty photographs and wrote a

brief supplemental report. By this point, he had considered and eliminated other potential causes

of the fire, such as natural and electrical causes. Although evidence suggests Jenkinson’s board

reconstruction was deficient and unreliable due to his failure to excavate an estimated fourteen

inches of rubble from the area, there is no evidence that this error was intentional, and the board

reconstruction was not the sole basis for Jenkinson’s conclusion.

       Moreover, the testimony in this case supports Jenkinson’s position that he did not

deliberately fabricate evidence, and Caminata offered no testimony or affirmative evidence to the

contrary. Jenkinson testified that he did excavate the area and believed he had reached the floor,

as required for an accurate board reconstruction.       Further, ATFE agent Marquardt, upon

reviewing the entirety of the investigation, opined that “[Jenkinson’s] systematic actions at the

fire scene, thorough documentation, written reports, and sworn testimony clearly demonstrate an

adherence to the elements of [the scientific method].” R. 66-6, PID 1572. Finally, Plaintiff’s

expert witness acknowledged that fire investigators viewing the same body of evidence

sometimes reach different conclusions, and that he found no evidence that Jenkinson removed

evidence from the scene, planted evidence at the scene, or fabricated evidence.

       Through the photographs, reports, and deposition testimony, the record supports that

Jenkinson attempted to thoroughly investigate the fire scene.          Whether he succeeded is

immaterial in establishing a Fourth Amendment violation. Viewed in the light most favorable to



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No. 16-1451, Caminata v. County of Wexford, et al


Caminata, the record at best reveals that Jenkinson negligently investigated the fire, and such a

conclusion does not establish a constitutional violation. See Ahlers v. Schebil, 188 F.3d 365,

373–74 (6th Cir. 1999) (“At best, however, the investigation’s lack of thoroughness might

support an inference of negligence, but it does not demonstrate knowing or intentional behavior

designed to violate [plaintiff’s] constitutional rights.”); see also Seigel v. City of Germantown,

25 F. App’x 249, 250 (6th Cir. 2001) (“The facts in this case supported at most a finding of

incompetent or negligent investigation, which is insufficient to establish a constitutional

violation.”). Jenkinson is thus entitled to qualified immunity on Caminata’s Fourth Amendment

claims of fabrication of evidence and malicious prosecution.

                         D. Caminata’s Fourteenth Amendment Claim

       Caminata additionally alleges that Jenkinson violated his Fourteenth Amendment rights

by withholding exculpatory evidence. Just as prosecutors must disclose material evidence to

criminal defendants, see Brady v. Maryland, 373 U.S. 83 (1963), police officers are obligated to

turn over potentially exculpatory evidence to the prosecutor’s office. See Moldowan v. City of

Warren, 578 F.3d 351, 378–79 (6th Cir. 2009). However, a police officer need only disclose

evidence “when its exculpatory value is ‘apparent’ to the officer, that is, when the officer is

aware that the evidence ‘could form a basis for exonerating the defendant.’” D’Ambrosio v.

Marino, 747 F.3d 378, 389–90 (6th Cir. 2014) (internal citations omitted) (quoting Moldowan,

578 F.3d at 384, 388 n.14). Having concluded that Caminata failed to show that Jenkinson

knowingly fabricated his reports, the Brady claim turns on whether, after conducting his

investigation, Jenkinson knew that his reports were false and subsequently withheld this

information from the prosecutor. Otherwise, the exculpatory value of the information would not

have been apparent to Jenkinson.



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No. 16-1451, Caminata v. County of Wexford, et al


       Caminata asserts that evidence supporting that Jenkinson knowingly withheld

exculpatory evidence from the prosecutor can be found in two statements made in depositions.

Jenkinson testified that he is “sure that [his conclusion ruling out a thimble hole fire] was

discussed [with Rood or Taylor],” R. 65-7, PID 838, and that he could not remember when the

conversation happened or its details, but that his conclusion “was probably talked about.” R. 65-

7, PID 838. Caminata pairs this testimony with a statement from Rood that had Jenkinson asked

for Rood’s opinion of the board reconstruction, Rood would have informed Jenkinson that he

believed that Jenkinson had conducted it incorrectly. Caminata asserts that because Jenkinson

testified that he spoke briefly with Rood and Taylor during his follow-up investigation on March

18, a reasonable jury could find that Rood told Jenkinson that he believed his board

reconstruction was flawed, and that Jenkinson therefore became aware of exculpatory

information that he later withheld from the prosecutor.

       Caminata’s argument, however, ignores Rood’s unequivocal testimony that he did not

inform Jenkinson, or anyone else, of his findings. Rood repeatedly stated that he did not tell

Jenkinson that he believed his board reconstruction was incorrect and, indeed, that he did not tell

anyone of the error until he informed Agent Marquardt in July, 2013, because “[h]e’s the only

one who asked.” R. 75-1, PID 2141. Moreover, Jenkinson testified that it would have “stuck out

in [his] mind” had Rood informed him that he believed his board reconstruction was incorrect.

R. 65-7, PID 839. Thus, while Caminata has, through Jenkinson’s testimony that his conclusion

was “probably talked about,” established a likelihood that Jenkinson informed Rood and Taylor

of his findings, there is no evidence suggesting that Rood told Jenkinson of the deficiencies he

perceived in Jenkinson’s investigation. Thus, there is no basis to find that Jenkinson withheld




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No. 16-1451, Caminata v. County of Wexford, et al


evidence, the exculpatory value of which was apparent to him, and the district court

appropriately granted summary judgment on this ground.

       Because we affirm the grant of summary judgment on the basis that Caminata has not

provided facts supporting that Jenkinson violated his constitutional rights, we need not reach the

question whether those rights were clearly established at the time of the investigation.

                                         III. Conclusion

       For these reasons, we AFFIRM the district court’s grant of summary judgment to

Jenkinson.




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