                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0145n.06

                                           No. 12-2296

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                  FILED
JASMINE GUY JORDAN,                              )                          Feb 21, 2014
                                                 )                      DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                     )
                                                 )
v.                                               )
                                                 )    ON APPEAL FROM THE UNITED
CITY OF DETROIT, et al.,                         )    STATES DISTRICT COURT FOR THE
                                                 )    EASTERN DISTRICT OF MICHIGAN
        Defendants,                              )
                                                 )
and                                              )
                                                 )
COUNTY OF WAYNE; JOHN DOE 1-2,                   )
                                                 )
        Defendants-Appellees.                    )

Before: COLE and GRIFFIN, Circuit Judges; PEARSON, District Judge.*



        BENITA Y. PEARSON, District Judge. Jasmine Guy Jordan (“Plaintiff”) appeals the

district court’s order granting summary judgment to Wayne County (“Defendant”) on Plaintiff’s

claims under 42 U.S.C. § 1983 for (1) maliciously prosecuting him without probable cause in

violation of the Fourth Amendment and for (2) failing to protect him while being held as a pretrial

detainee in violation of the Fourteenth Amendment. For the reasons that follow, we affirm the

district court’s rulings.




        *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
Jordan v. City of Detroit, et al.
No. 12-2296

                             I. Factual and Procedural Background

       On October 30, 2007, Donn Richardson was shot and killed while being robbed on the street

near his residence. Richardson’s fiancée, Linda Milliner, witnessed the robbery. She told

responding police officers that three men participated in the robbery, one of whom held a gun. She

described the man with the gun as a nineteen-year-old black male wearing a gray sweat jacket and

hat, standing five feet eight or nine inches tall, weighing about 160 pounds, with short hair and a

light skin complexion. Milliner was unable to describe the other two men whom participated in the

robbery.1

       Shortly after the shooting, police officers saw Plaintiff, then seventeen years old, and his

twenty-one-year-old brother, Cornell Massey, walking near the scene of the shooting. The officers

stopped Plaintiff and Massey because of their youthful appearances and because Plaintiff fit the

description of the man Milliner had described.       Plaintiff weighed 220 pounds, has a dark

complexion, was wearing a white and gray hoodie as opposed to a hat, and had a mustache and a

goatee. Officers released Massey but detained Plaintiff on a curfew violation. They placed him in

the back of a police car and transported him to the scene of the shooting.




       1
         Milliner did not see the shooting. According to her testimony at the preliminary
examination, Milliner observed the robbery from the window of her residence. The man holding
the gun saw her in the window and indicated that she should move away from the window. Milliner
did so. When Milliner heard gunshots she looked out the window again, and she saw the men
fleeing and her fiancé on the ground.

                                                 2
Jordan v. City of Detroit, et al.
No. 12-2296

       When Plaintiff arrived at the scene, an officer pointed at Plaintiff sitting in the back of the

police car and asked Milliner whether he was the shooter. Milliner said that he was. As a result of

Milliner’s positive identification, Plaintiff was arrested.

       A preliminary examination to determine probable cause to bind Plaintiff over for trial was

held on November 20, 2007. The only evidence, aside from stipulations, was Milliner’s testimony.

She testified that she observed the robbery from the window of her residence. In court, Milliner

identified Plaintiff as the man she had previously identified at the scene, and again identified him

as the man who held the gun. During cross examination, Milliner was asked about: her ability to

observe the incident; her initial description that she gave to police of the man with the gun; and the

manner in which Plaintiff had been presented to her for identification at the scene. The state court

judge, citing Milliner’s sworn testimony, found probable cause to hold Plaintiff criminally liable for

the homicide of Richardson, and bound Plaintiff over to a grand jury. About three months later, the

state court granted the prosecutor’s motion to dismiss the charges against Plaintiff without prejudice

because Milliner failed to appear at trial.

       Unbeknownst to the state court and Plaintiff, a few days after the shooting but prior to

Milliner’s testimony at the preliminary examination, Milliner went to the police station and

identified another man from a photo line-up— Juan Johnson, as the man with the gun.

       Meanwhile, upon his arrest in early November 2007, Plaintiff was taken to the Wayne

County Jail. Although seventeen at the time, he was housed with adult prisoners for four months

while the felony charges were pending against him. Plaintiff alleges that during his detention he was




                                                  3
Jordan v. City of Detroit, et al.
No. 12-2296

subjected to threats of physical harm by other inmates, verbally abused by jail officials, and attacked

by inmates on at least two occasions in February 2008.

       Plaintiff initiated the underlying civil lawsuit and asserted two claims against Defendant

under 42 U.S.C. § 1983.2 Count I, a malicious prosecution claim, alleged that Defendant detained

and prosecuted Plaintiff without probable cause in violation of the Fourth Amendment. Count III,

a deliberate indifference claim, alleged that Plaintiff’s detention in the adult population at the Wayne

County Jail and Defendant’s failure to protect him there constituted deliberate indifference in

violation of his right to due process of law under the Fourteenth Amendment, and was a result of

Defendant’s systematic failure to enforce its own rules and regulations.

       The district court granted Defendant’s motion for summary judgment on both counts.

Plaintiff filed a motion for reconsideration, which the district court denied. Plaintiff now appeals

the district court’s grant of summary judgment to Defendant on his § 1983 claims. He also argues

that the court erred in granting summary judgment in light of its rulings on discovery matters, and

that the court failed to follow the correct evidentiary standards.




       2
           Plaintiff also brought a 42 U.S.C. § 1985 conspiracy claim for depriving Plaintiff of his
constitutional rights. The district court granted summary judgment to Defendant on this claim.
Plaintiff makes no mention of this ruling in his brief on appeal, nor does he mention the court’s grant
of summary judgment to John Doe 1 and 2. Because Plaintiff has failed to preserve these issues for
appeal, we will not consider them. See Fed. R. App. P. 28(a)(5) (“appellant’s brief must contain .
. . . a statement of the issues presented for review”); see also Thaddeus–X v. Blatter, 175 F.3d 378,
403 n.18 (6th Cir. 1999) (issues not presented to the court in initial briefs on appeal are deemed
waived).

                                                   4
Jordan v. City of Detroit, et al.
No. 12-2296

                                      II. Standard of Review

       Because the district court granted summary judgment in favor of Defendant, we apply a de

novo standard of review. White v. Baxter Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). The

district court’s grant of summary judgment should be affirmed “if 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). The reviewing court views the evidence in the light most favorable to the

non-moving party and draws all reasonable inferences in his favor. White, 533 F.3d at 390. An

issue of fact is “genuine” if “a reasonable jury could return a verdict in favor of the non-moving

party.” Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir. 2008); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “A factual dispute concerns a ‘material’ fact only if its

resolution might affect the outcome of the suit under the governing substantive law.” Rogers v.

O’Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013) (citing Niemi, 543 F.3d. at 298–99). “After the

moving party has satisfied its burden, the burden shifts to the non-moving party to set forth ‘specific

facts showing that there is a genuine issue for trial.’” Farhat v. Jopke, 370 F.3d 580, 587-88 (6th

Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

When no genuine issues of material fact exist, we review de novo the district court’s conclusions

of substantive law. Farhat, 370 F.3d at 588.

                                           III. Discussion

       A. Malicious Prosecution Claim

       To succeed on a malicious prosecution claim, a plaintiff must show that: (1) a prosecution

was initiated against the plaintiff and that the defendant participated in the decision; (2) there was

                                                  5
Jordan v. City of Detroit, et al.
No. 12-2296

a lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a deprivation of

liberty as a consequence of the legal proceedings; and (4) the criminal proceeding was resolved in

the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010).

       The district court found that Plaintiff’s malicious prosecution claim was barred by the

doctrine of collateral estoppel. Plaintiff appeals this holding and argues that his claim is not

collaterally estopped. The district court also found,

       [e]ven were the court to assume that Plaintiff’s malicious prosecution claim is not
       subject to the preclusive effect of collateral estoppel, Defendant Wayne County
       would nevertheless be entitled to summary judgment because Plaintiff has not
       proffered any evidence, nor even pled factual allegations in the first-amended
       complaint, tending to show that a policy or custom of Wayne County was the
       “moving force” behind his alleged malicious prosecution, a necessary requirement
       of a § 1983 municipal liability claim.

Jordan v. City of Detroit, 2012 WL 2526927, at *7 (E.D.Mich. June 29, 2012). Plaintiff does not

challenge this holding.

       To succeed on a § 1983 claim against a municipal defendant, a plaintiff must “identify the

policy, connect the policy to the [County] itself and show that the particular injury was incurred

because of the execution of that policy.” Graham ex rel. Estate of Graham v. Cnty. of Washtenaw,

358 F.3d 377, 383 (6th Cir. 2004) (internal quotation marks and citation omitted); see also Monell

v. Department of Soc. Servs., 436 U.S. 658, 694 (1978). The district court correctly noted that

Plaintiff failed to produce any evidence of a policy or custom and did not include allegations of a




                                                 6
Jordan v. City of Detroit, et al.
No. 12-2296

policy or custom regarding the malicious prosecution claim in the complaint. Plaintiff’s claim of

malicious prosecution therefore fails on the merits.3

        We affirm the district court’s alternative holding that Plaintiff’s malicious prosecution claim

fails on the merits.

        B. Rulings on Discovery Matters

        Plaintiff argues that the district court erred in granting summary judgment when discovery

was incomplete. He states that Defendant “failed to turn over crucial information needed to

support” his claims. (Emphasis in original.) Plaintiff also argues that the district court should have

drawn an adverse inference against Defendant because of its failure to disclose discovery

information, although he fails to articulate what specific adverse inference should have been drawn.

                1. The District Court Did Not Abuse Its Discretion

        We review a district court’s decision as to the scope of discovery, including the denial of

additional time for discovery, under an abuse of discretion standard. See Doe v. Lexington-Fayette

Urban County Gov’t, 407 F.3d 755, 760-61 (6th Cir. 2005); Dowling v. Cleveland Clinic Found.,

593 F.3d 472, 478 (6th Cir. 2010). Factors to be considered are:

        (1) when the appellant learned of the issue that is the subject of the desired
        discovery; (2) whether the desired discovery would have changed the ruling below;


        3
         Because we affirm on the merits, there is no need to resolve the collateral estoppel issue.
This “merits first” approach is consistent with other cases in which we address straightforward
merits questions rather than complicated affirmative defenses. See, e.g., Desai v. Booker, 732 F.3d
628, 632 (6th Cir. 2013) (“Having concluded that Desai’s due process claim fails on the merits, we
need not reach the State’s alternative argument that he procedurally defaulted the claim.”); Pough
v. United States, 442 F.3d 959, 965 (6th Cir. 2006) (avoiding a non-jurisdictional statute of
limitations issue in favor of a straightforward merits-based determination).

                                                  7
Jordan v. City of Detroit, et al.
No. 12-2296

       (3) how long the discovery period had lasted; (4) whether the appellant was dilatory
       in its discovery efforts; and (5) whether the appellee was responsive to discovery
       requests.

Plott v. General Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196–97 (6th Cir. 1995); Dowling,

593 F.3d at 478. “The overarching inquiry in these overlapping factors is whether the moving party

was diligent in pursuing discovery.” Id.

       None of the Plott factors weigh in Plaintiff’s favor. The district court aptly described the

discovery dispute between the parties as follows:

       [o]n December 15, 2012, an earlier discovery dispute was resolved between the
       parties with the entry of a stipulated order directing Defendant Wayne County to
       produce various outstanding discovery requests within ten days of the entry of the
       order. Over the course of the next three months, neither party filed a motion to
       compel discovery nor contacted the court to seek its assistance in any other discovery
       matters. The parties were quiet as mice. In spite of the December 2012 order, which
       placed a ten-day deadline on the production of outstanding discovery requests,
       Plaintiff’s counsel, who now argues that the December 2012 order was not fully
       satisfied, did not contact Defendant Wayne County’s counsel to inform her that
       discovery requests were still outstanding until March 6, 2012. Nor did he file a
       motion with this court until the eve of the discovery deadline. The lack of diligence
       on the part of counsel for both parties during the discovery period certainly makes
       the requests for sanctions and protective orders less persuasive than they would have
       been if the issues had been timely brought to the court’s attention.


Jordan, 2013 WL 2526927, at *4 n. 7 (internal citations omitted).

       Regarding the first Plott factor, Plaintiff clearly learned of the subject of the desired

discovery well in advance of the discovery cutoff date. Also, Plaintiff has not shown that the desired

discovery would have changed the ruling below, the second Plott factor. As it relates to his

malicious prosecution claim, Plaintiff asserts the crucial information he sought included the




                                                  8
Jordan v. City of Detroit, et al.
No. 12-2296

prosecution file and the “In-Car Videos” and “Audio Recordings.”4 He does not explain how the

recordings would have been crucial or what specifically about the prosecution file would have been

relevant to his malicious prosecution claim. Moreover, any additional information regarding the

conduct of law enforcement officers during the events that took place on the night of the shooting

would not rectify Plaintiff’s failure to identify and plead a policy or custom that caused a violation

of his Fourth Amendment rights.

       Plaintiff also complains that, relevant to his due process claim, Defendant did not provide

the name of the corrections officer responsible for housing him with adult prisoners. This argument

is not well taken. Defendant identified Eric Troszak and Sylvester Foote as persons involved in the

inmate classification process. They stated that the identity of the individual that actually made the

decision as to which ward Plaintiff would be housed is unknown. The district court, considering the

propriety of Defendant’s responses, stated,

       [t]hus, contrary to Plaintiff’s claims, Defendant Wayne County did not purposely
       withhold the identity of the classification officer or refuse to respond to his discovery
       requests. Instead, the record shows that Wayne County informed Plaintiff well
       before the close of discovery that after reasonable inquiry it could not identify the
       specific officer that made the decision to house Plaintiff in the adult population. It
       nevertheless provided Plaintiff with the identity of two officers who were involved
       in the classification process at the jail during the time of Plaintiff’s detention.
       Plaintiff apparently made no effort to depose these two officers, nor did he ever
       appear for the properly noticed depositions. Based on these facts, an adverse
       inference should not be drawn against Defendant Wayne County.


       4
         The transcript Plaintiff cites, the discovery hearing, does not refer to any videos or
recordings, and the only mention of the prosecution file is made by the court. Instead, the transcript
reveals that Plaintiff complained about Defendant’s conduct in responding to discovery requests.
At no time did Plaintiff voice concern that lack of discovery materials precluded him from
responding to a motion for summary judgment.

                                                  9
Jordan v. City of Detroit, et al.
No. 12-2296

Jordan v. City of Detroit, 2012 WL 3583535, at *2 (E.D.Mich. Aug. 20, 2012). Defendant could

not provide what it did not have, and Plaintiff was not diligent in pursuing the name of the officer

using the information Defendant did provide.

       As for the remaining Plott factors, the discovery period lasted about seven months, a

reasonable time frame. Plaintiff was dilatory in his discovery efforts and was not responsive to

discovery requests. Notably, although Plaintiff expresses outrage on appeal that “not a single

deposition had been taken,” (emphasis in original), the record in the district court reveals that

Plaintiff: refused to be deposed; canceled scheduled depositions of Defendant’s employees; and did

not attempt to depose the two individuals whose names Defendant provided relating to Plaintiff’s

classification at the prison. Additionally, Plaintiff expressed agreement, during the hearing on

pending discovery motions, with the district court’s inclination to permit Defendant to file a motion

for summary judgment without further discovery.5 We also consider a court’s inherent authority to

“control its docket in promoting economies of time and effort for the court, the parties, and the

parties’ counsel.” Gonzalez v. Ohio Cas. Ins. Co., 2008 WL 4277258, at * 1 (E.D.Mich. Sept. 17,

2008) (citing Landis v. North American Co., 299 U.S. 248 (1936)); see also First Bank of Marietta

v. Hartford Underwriters Ins. Co., 307 F.3d 501, 514-15 (6th Cir. 2002).




       5
         At the hearing, the district court expressed an inclination to hold in abeyance ruling on the
discovery disputes and to permit Defendant to file its summary judgment motion in keeping with
the original case management dates. The court further stated that if, after reviewing Defendant’s
motion, Plaintiff required additional discovery material, then Plaintiff would indicate so in his
responsive brief. Plaintiff filed a responsive brief 47 days later, without leave of court, and did not
indicate that he could not respond to the motion without further discovery.

                                                  10
Jordan v. City of Detroit, et al.
No. 12-2296

        In light of the above, it cannot be said that the district court abused its discretion in ruling

on the discovery matters. The district court’s discovery rulings are affirmed.

                 2. There is No Adverse Inference to be Drawn

        Plaintiff argues for an adverse inference based on Defendant’s alleged failure to provide him

with prosecution materials regarding the malicious prosecution claim and, more generally, the due

process claim.

        “‘[T]he general rule is that [w]here relevant information . . . is in the possession of one party

and not provided, then an adverse inference may be drawn that such information would be harmful

to the party who fails to provide it.’” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 712 (6th Cir.

2007) (quoting McMahan & Co. v. Po Folks, Inc., 206 F.3d 627, 632-33 (6th Cir. 2000)). As

already discussed, supra, Plaintiff does not identify relevant information in Defendant’s possession

that Defendant failed to provide him and describe what adverse inference should be drawn. We find

that the district court correctly determined that Plaintiff was not entitled to an adverse inference.

        C. Evidentiary Standards Applied to the Due Process Claim

        Plaintiff argues that the district court erred in granting summary judgment on his due process

claim because Defendant failed to meet its evidentiary burden by failing to point to deficiencies in

Plaintiff’s claim. Plaintiff also argues that the district court erred because it misconstrued his claim.

Plaintiff argues that “the salient question was whether Plaintiff was deprived of a constitutional right

by Defendant’s ‘failure to protect’ him after he was housed with the ‘adult inmates.’” (Emphasis

omitted.)




                                                   11
Jordan v. City of Detroit, et al.
No. 12-2296

       To the extent Plaintiff argues the decision to house him with the adult inmates in general

population violated a constitutional right, he fails to identify any custom, policy or practice of

Defendant, connect that policy to the Defendant and show it caused a constitutional violation. That

omission is fatal to his claim. See Graham, 358 F.3d at 383. Plaintiff only cites Defendant’s “Jail

Operations Manual” which he claims provides that 17-year-olds should not be housed with the

general population. He does not advance evidence in support of his allegation that Defendant has

a policy or custom not adhering to the operations manual. Instead he merely states that “the [] policy

and procedures were not adhered in this case.” (Emphasis in original.) A single instance, without

more, does not amount to a custom, policy or practice. See City of Oklahoma City v. Tuttle, 471 U.S.

808, 823-24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident includes proof that it was caused by an

existing, unconstitutional municipal policy, which policy can be attributed to a municipal

policymaker.”).6

       To the extent Plaintiff argues that Defendant failed to protect him, the argument is also

without merit. To succeed on such a claim, a plaintiff must show that (1) “he is incarcerated under

conditions posing a substantial risk of serious harm[,]” and (2) defendant acted with “deliberate

indifference” to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Again, Plaintiff offers no

proof of any policy or custom that caused a constitutional violation. Moreover, as the district court

noted, Plaintiff fails to advance evidence in support of his allegation that he was attacked twice


       6
        Defendant rejoins, as it did in the district court, that it was permitted to house a 17-year-old
charged with a serious crime with the adult population.

                                                  12
Jordan v. City of Detroit, et al.
No. 12-2296

while in prison. Plaintiff refused to be deposed; he did not even file an affidavit swearing that he

had been attacked. Finally, Plaintiff erroneously places the burden on Defendant to show that the

officers were given adequate training—it is not Defendant’s burden to show adequate training. See

Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (“The moving party discharges its burden by

showing—that is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party’s case.”) (internal quotation marks and citation omitted).

          Defendant pointed out to the district court that there was an absence of evidence to support

Plaintiff’s case, thereby discharging its burden. Plaintiff did not advance any evidence in support

of his claim, failing to meet his burden. See id. The district court applied the correct evidentiary

standards when it granted Defendant’s motion for summary judgment, and we affirm the court’s

ruling.

                                           IV. Conclusion

          For the foregoing reasons, we affirm the judgment of the district court.




                                                  13
