                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0053n.06

                                           No. 09-2183                                    FILED
                                                                                      Jan 24, 2011
                             UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


LINDA EVERSON, named as “Linda (Sonte)                   )
Everson,” aka Sonte Everson,                             )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
CALHOUN COUNTY, et al.,                                  )                           OPINION
                                                         )
       Defendants-Appellants.                            )
                                                         )




BEFORE:        BOGGS, COLE, and CLAY, Circuit Judges.



       COLE, Circuit Judge. In this 42 U.S.C. § 1983 action for First Amendment retaliation,

Defendant-Appellant Gary Picketts appeals on qualified immunity grounds the district court’s order

granting in part and denying in part his motion to dismiss and alternative motion for summary

judgment.1 For the following reasons, we AFFIRM the judgment of the district court.




       1
        Defendant Calhoun County appealed the district court’s determination that it was not entitled
to sovereign immunity, but withdrew its appeal of this issue at oral argument.
No. 09-2183
Everson v. Calhoun County

                                       I. BACKGROUND

       A. Factual History

       1. The Police Report & Initial Investigation of Graham

       In September 2005, Plaintiff-Appellee Linda Everson reported to the Calhoun County

Sheriff’s Office that, on December 16, 2004, her then-boyfriend Officer Doug Graham of the Battle

Creek Police Department forcibly sodomized her during an otherwise-consensual sexual encounter.

She stated that she had broken up with Graham and, unsure how to proceed, confided in friends, a

counselor, and her physician about the sexual assault before finally deciding to file a police report.

       Calhoun County Detective Guy Picketts handled the investigation into Graham’s conduct.

He interviewed Everson; several of Everson’s friends and coworkers in the police department, all

of whom confirmed that Everson reported being sexually assaulted by Graham; and Everson’s

doctor. He also interviewed Graham, who denied that the sodomy occurred and suggested that

Everson filed the report out of spite when she found out that he was marrying another woman.

Picketts interviewed Everson’s friend Sheri Lemonious as well. Although Picketts reported in 2005

that Lemonious said Everson described the sodomy as consensual, Lemonious attested in 2009 that

she told Picketts the opposite. Everson alleges that Picketts failed to interview several important

witnesses during his investigation.

       Picketts submitted a report of his investigation to the Calhoun County Prosecutor’s Office,

which recused itself on conflict-of-interest grounds. In January 2006, the Branch County prosecutor

reviewed Picketts’s report and declined to prosecute Graham for sexual assault.



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       2. Everson’s Speech

       Upset by the decision not to prosecute, Everson publicly criticized Picketts loudly and

repeatedly, accusing him of not doing his job and being “just part of the good ole boy system.” She

mentioned her complaints to colleagues in law enforcement, at least one of whom relayed her

statements to Picketts. Everson also met with Picketts’s boss on August 16, 2006, to initiate a

formal complaint against Picketts and sent a letter to the Calhoun County prosecutor on August 31,

2006, asking him to take action about her concerns regarding Picketts’s investigation of Graham.

       3. Picketts’s Investigation & Arrest of Everson

       Picketts began documenting Everson’s comments in a new investigative report—this time

against Everson. On August 22, 2006, Picketts interviewed Ethel Fitzpatrick (“Mrs. Fitzpatrick”),

Everson’s former friend, who stated that Everson had told her that the sexual assault had never

occurred. Picketts did not confront Everson about the allegations, and eight days later, he requested

an arrest warrant for Everson for the felony of filing a false police report. Everson alleges that

Picketts opened the investigation against her before he interviewed Mrs. Fitzpatrick. Everson also

alleges that Picketts lied about the first time he met Mrs. Fitzpatrick. Keith Fitzpatrick (“Mr.

Fitzpatrick”), Mrs. Fitzpatrick’s husband, asserts that at some point Picketts came to their house, told

them that he had a personal dispute with Everson, and spoke with Mrs. Fitzpatrick at length and in

private. Mr. Fitzpatrick attested that he could not remember whether the in-home meeting took place

before or after the August 22, 2006 interview. But he also stated that he had never seen Picketts

before the in-home meeting, and both Fitzpatricks were present for the August 22, 2006 interview.



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No. 09-2183
Everson v. Calhoun County

        Calhoun County did not recuse itself from the case against Everson, but rather charged her

with filing a false police report. After a preliminary hearing, the Michigan district court found

probable cause that Everson had committed the crime and bound her over to the circuit court for

trial. The circuit court quashed the bind-over and dismissed the case for lack of evidence. Everson

was then rearrested on the same charges, and the case was transferred to Kalamazoo County. On

February 1, 2008, the Kalamazoo County Prosecutor dismissed all charges against Everson “in the

best interests of justice.”

        B. Procedural History

        Everson filed a complaint against Calhoun County, the prosecutor, and Picketts (collectively,

“Defendants”) under § 1983, alleging that their actions (1) violated her equal protection rights; and

(2) constituted illegal retaliation for the lawful exercise of her First Amendment rights. In response,

Defendants filed a motion to dismiss and, in the alternative, a motion for summary judgment. After

oral argument, the district court issued an order (1) dismissing the equal protection claim; (2)

dismissing the retaliation claim against the prosecutor on absolute prosecutorial immunity grounds;

(3) denying the motion in all other respects as to Picketts; and (4) denying the motion in all other

respects as to Calhoun County without prejudice to renewal of the motion after the close of all

discovery. Picketts filed this appeal, alleging that the district court erred in failing to dismiss all

claims against him on qualified immunity grounds.




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No. 09-2183
Everson v. Calhoun County

                                         II. DISCUSSION

       A. Standard of Review

       This court reviews a district court’s denial of summary judgment on qualified immunity

grounds de novo. Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006). “We may only

review the denial of qualified immunity to the extent that the ‘appeal involves the abstract or pure

legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established

law.’” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (quoting Gregory, 444 F.3d at 742).

The defendant must “be willing to concede the most favorable view of the facts to the plaintiff for

purposes of the appeal.” Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009).

       B. Analysis

       In determining whether qualified immunity applies, this court employs a two-step test,

considering (1) whether, viewing the allegations in the light most favorable to the injured party, a

constitutional right has been violated; and (2) whether that right was clearly established. Dorsey v.

Barber, 517 F.3d 389, 394 (6th Cir. 2008). We have discretion to undertake the steps in either order.

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

       It is clearly established that “the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”

Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a prima facie First Amendment retaliation

claim, Everson must establish (1) protected speech; (2) injury as a result of defendant’s actions; and

(3) causation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).



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Everson v. Calhoun County

       Picketts first argues that Everson’s allegations do not constitute a prima facie retaliation

claim because they fail to establish a lack of probable cause, an element of causation. He is correct

that § 1983 claims for retaliatory prosecution and arrest fail as a matter of law if the defendant had

probable cause. See Hartman, 547 U.S. at 261-62 (Bivens claim for retaliatory prosecution); Barnes

v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (retaliatory arrest). Probable cause exists when an

officer has reasonably trustworthy information sufficient to warrant a prudent person in believing

that a suspect has committed a crime. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000).

In determining whether probable cause existed in this case, we examine the totality of the

circumstances from the perspective of the arresting officer at the time of the arrest. Parsons v. City

of Pontiac, 533 F.3d 492, 501 (6th Cir. 2008). In § 1983 actions, the existence of probable cause

is a jury question unless only one reasonable determination is possible. Id. (citing Fridley v.

Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)).

       In this case, there are genuine disputes of material fact about whether Picketts intentionally

changed Lemonious’s statement in his report, spoke privately with Mrs. Fitzpatrick in her home at

length before she gave her formal statement, and influenced the content of Mrs. Fitzpatrick’s

statement. Viewing the facts in the light most favorable to Everson, a reasonable jury could find

that, at the time Picketts sought an arrest warrant for Everson, the information he had collected

against her was not reasonably trustworthy. Because more than one reasonable determination as to

probable cause is possible, it is therefore appropriate to allow the case to proceed to trial.

       Picketts’s argument that this court should accept the prosecutor’s and state court’s findings

of probable cause as evidence that probable cause existed is inapposite. Because these probable

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No. 09-2183
Everson v. Calhoun County

cause determinations were based only on the evidence that Picketts included in his report—which

did not describe the circumstances, as alleged by the plaintiff, surrounding Lemonious’s and Mrs.

Fitzpatrick’s statements—we do not find them probative to the issue of whether Picketts had

sufficient reasonably trustworthy information at the time of the arrest.

       Picketts also contends that the district court’s finding that genuine issues of material fact exist

was erroneous because it relied on a series of unreasonable adverse inferences and omitted a number

of relevant facts. But the “contention that the district court erred in finding a genuine issue of fact

for trial is not the type of legal question which we may entertain on an interlocutory basis.” Gregory,

444 F.3d at 743. Although this court has recognized an apparent exception “‘where the trial court’s

determination that a fact is subject to reasonable dispute is blatantly and demonstrably false,’”

Moldowan, 578 F.3d at 370 (quoting Wysong v. Heath, 260 F. App’x 848, 853 (6th Cir. 2008))

(internal quotation marks omitted), that exception does not apply here. The district court noted the

following disputed facts, among others: (1) when Picketts opened his investigation into Everson;

(2) whether Lemonious told Picketts that Everson said she had not been raped; and (3) when and

how Mrs. Fitzpatrick surfaced as a witness. All of these facts are material to the existence of

probable cause. These facts are also genuinely in dispute: each party answers these questions

differently, each party’s allegations of fact are supported by witness statements, and no objective

evidence makes one party’s allegations obviously false. Cf. Scott v. Harris, 550 U.S. 372, 380-81

(2007) (finding no genuine dispute of material fact where video evidence blatantly contradicted the

plaintiff’s allegation that he was driving carefully). Because the district court’s finding of genuine



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No. 09-2183
Everson v. Calhoun County

issues of material fact was not blatantly and demonstrably false, we lack jurisdiction to undertake

further review in this regard.

                                      III. CONCLUSION

       For the reasons discussed above, we AFFIRM the judgment of the district court denying

Picketts’s motion for summary judgment.




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