                      NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 15a0606n.06

                                                  Case No. 14-6323
                                                                                                          FILED
                                  UNITED STATES COURT OF APPEALS                                  Aug 26, 2015
                                       FOR THE SIXTH CIRCUIT                                  DEBORAH S. HUNT, Clerk



PLEAS LUCIAN KAVANAUGH,
                                                                 )
            Plaintiff-Appellant,                                 )
v.                                                               )        ON APPEAL FROM THE UNITED
                                                                 )        STATES DISTRICT COURT FOR
LEXINGTON FAYETTE URBAN COUNTY                                   )        THE EASTERN DISTRICT OF
GOVERNMENT, et al.                                               )        KENTUCKY
                                                                 )
            Defendants-Appellees.                                )
                                                                 )
                                                                 )        OPINION
                                                                 )

Before: SUTTON and DONALD, Circuit Judges; and ZOUHARY, District Judge.*

            BERNICE         BOUIE        DONALD,          Circuit     Judge.         Pleas    Lucian      Kavanaugh

(“Kavanaugh”) appeals a district court order granting summary judgment to the defendants on

his civil rights claims. In 2009, Kavanaugh was arrested in connection with two separate attacks

on women in Lexington, Kentucky. A grand jury indicted him, and after his motion to sever the

charges was granted, he proceeded to trial regarding the first of the two attacks. A jury acquitted

Kavanaugh regarding the first attack, and the prosecutor dropped the charges regarding the

second attack. In 2013, Kavanaugh filed a state law and federal civil rights action under 42

U.S.C. § 1983 for malicious prosecution. He also claimed that the local government violated


*
    The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.
Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


§ 1983 by maintaining a policy or custom of inaction regarding officer misconduct and failing to

train those officers appropriately. The defendants moved for summary judgment, which the

district court granted. We AFFIRM.

                                                I.

       This case arose from the defendants’ investigations into two incidents in downtown

Lexington, Kentucky, in late 2009. The first involves an attack on Morgan Persley (“Morgan”),

the 23-year-old daughter of defendant Detective William Persley (“Persley”). On October 24,

2009, Morgan departed a bar after an argument with her then-boyfriend. It was shortly after 1:00

in the morning, so as she walked down the street, Morgan called a friend on her cell phone to

come retrieve her. Still on the call with her friend, Morgan came to a stop under a streetlight

about three or four blocks from the bar. While she stood in the same spot, she observed a man

walk past her; Morgan acknowledged him and kept talking on her phone. The man passed her

again, this time from the opposite direction, and Morgan took note of him more cautiously. As

she hung up her phone, the man approached her a third time, grabbed her from behind, and

dragged her away from the street. Morgan struggled with her assailant, sustaining several

bruises and scrapes, and ultimately broke free. After the attack, Morgan no longer had her cell

phone or her keys.

       Responding officers collected blood samples from the scene of Morgan’s attack. Morgan

was able to describe her attacker in general terms, but was unable to provide sufficient facial

details for a composite sketch. Detective Elizabeth Adams (“Adams”) was assigned as the lead

detective for the incident. Without further information, however, the investigation stalled until a

second incident occurred three months later.




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


       The attack on Laura Baker (“Baker”) took place on December 8, 2009. Baker was sitting

on a bench at a Transit Center bus stop when a man sat down beside her. The man kept staring at

her, so Baker asked if she knew him; he replied, “no, but I’d like to get to know you.” He then

asked if she knew where to get some dope. When Baker responded that she did not, the man

pulled out a plastic baggie with what appeared to be cocaine inside. He asked her to leave with

him to do some of the (alleged) cocaine. He dropped the baggie on the ground as a police officer

emerged from the Transit Center. The man then pulled a “large silver colored pocket knife”

from his pocket and held it to Baker’s side, telling her repeatedly that she “was leaving with

him.” When a bus pulled up to the stop, Baker ran onto the bus and asked the driver to call

police. The suspect walked away.

       The responding officer took an initial statement from Baker, filed a report, and brought

Baker to meet Detective Adams. Adams wrote a report of their conversation. The following

day, Baker met with Detective Leah Anderson (“Anderson”) to generate a composite sketch of

her attacker. While Adams drove Baker to and from the appointment with Anderson, Adams did

not accompany Baker during the development of the composite sketch. Persley was assigned as

the lead detective for the Baker investigation.

       On December 10, 2009, Adams and Persley compared notes on the similar descriptions

of the suspects in the attacks on Morgan and Baker. Adams reviewed the composite, generated

the previous day with Baker, and noted that it bore a resemblance to Kavanaugh, who had been a

suspect in a previous case. Adams then prepared a photographic line-up of six men, including

Kavanaugh, which was shown separately to Morgan and to Baker. All men in the line-up were

black. However, four had darker skin and two had lighter skin; Kavanaugh was one of the two

with lighter skin.    Both women identified Kavanaugh as their attacker.       Based on these




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


identifications, the detectives swore out arrest warrants for Kavanaugh related to both incidents.

Kavanaugh was arrested five days later, and his DNA was collected to be compared with the

blood samples found at the scene of Morgan’s attack. Adams and Persley testified before a

grand jury, at which time Adams testified that the results of the DNA tests regarding the attack

on Morgan were unavailable. The grand jury indicted Kavanaugh regarding both incidents.

        Kavanaugh was first tried for the attack on Morgan. Before the trial began, Kavanaugh

filed a motion to suppress Morgan’s line-up identification of Kavanaugh, claiming it was

impermissibly suggestive because only two of the six photographs featured light-skinned black

men. The trial court agreed, and suppressed the line-up identification. However, the court

allowed Morgan to identify her assailant during the trial itself. Despite Morgan’s identification,

the jury acquitted Kavanaugh of robbery in August 2011. In light of the trial judge’s decision to

suppress the photographic line-up evidence in Morgan’s case (along with any reference to the

Baker composite sketch from which it was derived), the prosecutor dismissed the charges against

Kavanaugh regarding the attack on Baker.1

        Kavanaugh filed the present action in March 2012 against the Lexington Fayette Urban

County Government (“LFUCG”), Chief of Police Ronnie Bastin (“Bastin”), Adams, Persley, and

other unidentified defendants.2 Kavanaugh claims, inter alia, that the defendants violated state

law and 42 U.S.C. § 1983 when they maliciously prosecuted him for the crimes against Morgan

and Baker, and that the prosecution was based on the LFUCG’s policy or custom of inaction in

responding to officer dishonesty and failure to train or supervise its officers. The defendants


1
 The prosecutor explained that, “[b]ecause [the judge], in my opinion, had improperly excluded Laura Baker’s
matter, as well as the sketch drawing and line-up from the prosecution involving Morgan Persley’s charges, and he
was the same judge who would be hearing Laura Baker’s matter, it was my decision to not go forward with
prosecuting Mr. Kavanaugh in the case involving Laura Baker’s charges.”
2
 Among his claims, Kavanaugh sued Bastin, Adams, and Persley individually and in their official capacities, and
sued LFUCG for direct liability and on a theory of respondeat superior.


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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


moved for summary judgment. The district court granted summary judgment to the defendants

on Kavanaugh’s federal claims, declined supplemental jurisdiction on his state-law claims, and

dismissed the case. Kavanaugh appeals.

                                               II.

                                               A.

       We review a district court grant of summary judgment de novo. Ramsey v. Penn Mut.

Life Ins. Co., 787 F.3d 813, 818 (6th Cir. 2015). Summary judgment is appropriate “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 moving party bears the initial burden

of demonstrating that its opponent has not presented sufficient evidence to support its case.

Martin Cnty. Coal Corp. v. Universal Underwriters Ins. Co., 727 F.3d 589, 593 (6th Cir. 2013).

Once the moving party has satisfied this burden, then it is the nonmoving party’s burden “to set

forth specific facts showing a triable issue.” Id. (citing Mosholder v. Barnhardt, 679 F.3d 443,

448-49 (6th Cir. 2012)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Fed. R. Civ. P. 56(e). The nonmoving party must make this evidentiary

showing regarding each of the essential elements of its case. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986) (Summary judgment is properly entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial. In such a situation, there can be ‘no

genuine issue as to any material fact,’ since a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts immaterial.”) The

nonmoving party must present something more than mere speculation or allegations: there must

be probative evidence upon which a jury could reasonably find for the nonmovant. Anderson v.




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in

support of the plaintiff's position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.”); see also Superior Prod. P’ship v. Gordon Auto Body

Parts Co., 784 F.3d 311, 326 (6th Cir. 2015).

         When considering a motion for summary judgment, we must consider all the evidence,

facts, and inferences in the light most favorable to the nonmoving party. Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392, 399 (6th Cir. 2010) (citing Matsushita, 475 U.S. at 587). In

short, we must determine “whether the evidence is so one-sided that the moving party must

prevail as a matter of law.” Martin, 727 F.3d at 593.

         Though Kavanaugh initially asserted several causes of action against the defendants, he

only addressed two in his response to the motion for summary judgment: 1) his claim that Adams

and Persley maliciously prosecuted him in violation of state law and 42 U.S.C. § 1983; and 2) his

claim that LFUCG and Bastin violated 42 U.S.C. § 1983 by maintaining a policy or custom of

inaction in the face of dishonesty on the part of its officers and failing to train them. These were

the only claims addressed by the district court below, and they remain the only claims before this

Court on appeal.

                                                          B.

         As a preliminary matter, the district court determined that Kavanaugh’s claim for

malicious prosecution under 42 U.S.C. § 1983 was effectively asserted only against Adams and

Persley, and only in their individual capacities.3 Kavanaugh does not contest this determination

on appeal.


3
 The district court noted that Kavanaugh had conceded he was not alleging that Bastin maliciously prosecuted him.
The court also concluded that the malicious prosecution claim against LFUCG and the detectives in their official
capacities “fail[ed] because a government entity cannot be held liable under § 1983 for the constitutional torts of its
employees under a respondeat superior theory.” Kavanaugh failed to assert any facts to support a claim of liability


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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


        To succeed on a claim under § 1983 for malicious prosecution, Kavanaugh must prove

four essential elements: 1) that a criminal prosecution was initiated against him, and that Adams

and Persley “made, influenced, or participated in the decision to prosecute[;]” 2) that there was a

lack of probable cause to support the prosecution; 3) that he suffered a “deprivation of liberty”

(as understood under this Court’s Fourth Amendment jurisprudence) as a consequence of the

legal proceeding; and 4) that the legal proceeding was resolved in Kavanaugh’s favor. Sykes v.

Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th

Cir. 2007) (regarding the first element) (internal quotation marks and modifications omitted);

Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007) (regarding the third element)). Thus, if

Kavanaugh fails to present more than “a scintilla of evidence” on any of these elements, Adams

and Persley must be granted summary judgment on the claim. Anderson, 477 U.S. at 252; see

also Celotex, 477 U.S. at 322; Peterson v. Johnson, 714 F.3d 905, 910 (6th Cir. 2013).

                                                       1.

        Kavanaugh primarily argues that Adams and Persley lacked probable cause to pursue

him. “[P]robable cause to initiate a criminal prosecution exists where ‘facts and circumstances

are sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime

charged.’” Webb v. United States, 789 F.3d 647, 666 (6th Cir. 2015) (quoting MacDermid v.

Discover Fin. Servs., 342 F. App’x 138, 146 (6th Cir. 2009) (modification omitted)). We view

his arguments in light of “the totality of the circumstances at the time of [Kavanaugh’s] arrest

and through the time that the criminal proceeding against [him] commenced.” Sykes, 625 F.3d at

311.




on a policy-or-custom-of-malicious-prosecution theory. Thus, the only § 1983 claim for malicious prosecution that
remained was that asserted against Adams and Persley in their individual capacities.


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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


       Kavanaugh must present evidence to overcome several legal presumptions that Adams

and Persley had probable cause. Law enforcement officers are entitled to rely on an eyewitness

identification of a suspect to establish the probable cause necessary for an arrest. United States

v. Lanier, 636 F.3d 228, 233 (6th Cir. 2011); see also Ahlers v. Schebil, 188 F.3d 365, 370 (6th

Cir. 1999). Where an arrest is made pursuant to a valid warrant, that document is also “normally

a complete defense to a federal constitutional claim” under §1983. Robertson v. Lucas, 753 F.3d

606, 618 (6th Cir. 2014) (quoting Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir.

2005) (internal citation omitted)). Similarly, as a general rule, “the finding of an indictment, fair

upon its face, by a properly constituted grand jury, conclusively determines the existence of

probable cause.” Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006).

       An exception to these rules exists where officers procure an identification or warrant by

making “material false statements either knowingly or in reckless disregard for the truth.” Scott

v. Kelley, No. CIV.A. 2010-77 WOB, 2012 WL 479896, at *4 (E.D. Ky. Feb. 14, 2012) aff’d sub

nom. Scott v. Sanders, 482 F. App’x 996 (6th Cir. 2012); Ghaith v. Rauschenberger, 493 F.

App’x 731, 736 (6th Cir. 2012); see also Sykes, 625 F.3d at 312 (citing Gregory v. City of

Louisville, 444 F.3d 725, 758 (6th Cir. 2006)); Robertson, 753 F.3d at 616. For Kavanaugh to

survive summary judgment, therefore, he must make a showing that the eyewitness

identification, warrant, and indictment against him rested on false testimony or material false

statements made by Adams and Persley in pursuit of his arrest or prosecution.

                                                 a.

       Kavanaugh makes several interrelated arguments that Adams and Persley lacked probable

cause. At the core of these arguments is his theory that Adams and Persley improperly steered

the investigation to ensure that the victims would identify Kavanaugh as their attacker; in short,




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


that the detectives framed him. Kavanaugh identifies several particulars in which the victims’

descriptions of their assailant differ from the resulting investigation documents and insists that he

does not match these descriptions.       He claims that Adams and Persley made suggestive

statements to Morgan and Baker about Kavanaugh’s alleged prior acts to influence the women to

describe and identify him. Kavanaugh vaguely alleges that Adams either never conducted a

photographic line-up or used it improperly, and emphasizes that he “would have never been a

suspect in either crime if not for Adams’ involvement.” He argues that Adams lied to the grand

jury about the DNA test results in Morgan’s case. The variations on this theme are numerous,

but they share one of two recurring flaws: they are either unsupported by the record or they

misrepresent the record in context.

       It is true that there were differences in the details regarding the identification of the

suspect in the attacks on Morgan and Baker, but these differences are minor in light of what is

consistent in the record. Kavanaugh states that he is 5’ 11” tall, is completely bald, is black with

light skin, and has brown eyes. He repeatedly claims that this contradicts the characteristics

described to police by Morgan and Baker. However, the record reveals that Morgan and Baker’s

descriptions were relatively consistent regarding their attacker’s skin tone, hair, build, and

height. Morgan described her assailant as a light-skinned black or Arabic man in her initial

description and later testimony. Baker initially described her assailant as “a very light-skinned

male black or bi-racial” man, which was consistent with her later testimony and with the

composite sketch she generated with Anderson the day after her attack.

       Kavanaugh asserts that Morgan and Baker never identified the suspect as bald. Strictly

speaking, this is true: neither woman used the term “bald.” But both women consistently stated

that the suspect’s head was buzzed or close-shaven or that they saw no hair at all. Merriam-




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


Webster’s dictionary states that a “bald” person is one who “[has] no hair or very

little hair on the   head.”    Merriam-Webster        Online,   available   at   http://www.merriam-

webster.com/dictionary/bald.     Morgan and Baker’s descriptions are consistent with this

definition.

        Kavanaugh emphasizes that neither woman stated the suspect had brown eyes, yet this

characteristic nonetheless entered the record in the general investigative reports regarding both

incidents. By contrast, he notes that at one point, Baker stated that her attacker had green eyes or

contacts. He does not, however, make the necessary connections between these discrepancies

and his legal theory to survive summary judgment.

         Aside from the fact that these variations are minor in context, many of them do not

logically connect to the defendants in question.         The initial description of the attacker in

Morgan’s case was taken by a responding officer, not Adams or Persley; it was this officer who

included “brown eyes” and “black hair” in the report. The initial case reports regarding Baker’s

encounter—including the one authored by Adams—do not identify the attacker’s eye or hair

color at all, and the general investigative report identifying her attacker as having brown eyes

and black hair was filled out by a responding officer, not Adams. But Kavanaugh concludes—

without legal support of any kind—that these discrepancies demonstrate that Adams and Persley

somehow tailored the investigation documents so that the witnesses would implicate Kavanaugh.

His assertion does not establish grounds to escape summary judgment.

                                                 b.

        Nor does Kavanaugh make a showing that Adams and Persley influenced Morgan and

Baker to identify him through statements about his alleged past acts. In his brief, Kavanaugh

explains this argument thus:




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


                          Immediately after the attack, Ms. Baker stated that the
                  following occurred:
                          “And then more cops came on bicycles and from the police
                  station across the street. They took me over there and took my
                  statement. A few minutes later they went out looking for him.
                  Well, the description I gave of him was someone they were already
                  looking for, I guess. He was wanted for a few other rapes and an
                  attack on a pregnant woman and an attack on a police officer’s
                  daughter or some, something to that affect. They said I couldn't
                  have gave a better description of him.”
                                                   ...
                          Was Ms. Baker just making these comments, which are
                  absolutely unduly suggestive and improper, up out of thin air?
                                                   ...
                          There is absolutely no doubt that, well prior to her
                  deposition, Ms. Baker was told by the investigating officers that
                  they knew who did this to her, and that it was someone they were
                  already looking for. This is absolutely impossible unless Adams
                  and Persley planned on pinning both of these alleged crimes on
                  [Kavanaugh] before anyone ever allegedly identified him[.]

         There are two key problems with this argument. First, the quotation above comes from a

transcript of an unsworn statement Baker made to public defender investigator Paula Hensinger

(“Hensinger”) in 2011. The district court declined to consider that transcript because, as this

Court plainly directed in Dole v. Elliott Travel & Tours, Inc., 942 F.3d 962 (6th Cir. 1991), “a

court may not consider unsworn statements when ruling on a motion for summary judgment.”

942 F.3d at 968-69. On appeal, Kavanaugh avers that Baker stated in her sworn deposition—two

years after her conversation with Hensinger—that Baker had been truthful during the interview,

but this assurance is not sufficient for the court to properly consider the content of the transcript.

While it is true that there exists a statutory exception to the rule in Dole, that exception does not

apply to Baker’s interview with Hensinger.4 The district court properly excluded the unsworn


4
 “[A] statutory exception to this rule exists which permits an unsworn declaration to substitute for a conventional
affidavit if the statement contained in the declaration is made under penalty of perjury, certified as true and correct,
dated, and signed.” Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998) (citing 28 U.S.C. § 1746). The
statutory requirements to substitute an affidavit or otherwise properly sworn statement with an unsworn statement,
however, are detailed and clear: the unsworn “declaration, certificate, verification, or statement” must be in writing,


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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


statement, and without it, Kavanaugh’s assertions that Adams and Persley made suggestive

statements about him to Morgan and Baker are unsupported by the record.

        Second, even taking the above statement into account, its contents are contradicted by

Baker’s deposition testimony, wherein she explains in more detail who told her what and when.

Baker testified that a responding officer told her “it could be a possibility” that the suspect she

had described at the scene was “somebody that they were looking for.” Baker also stated that

Persley told her the suspect was wanted for rape, but Baker clarified that Persley made that

statement months after Baker had created the composite sketch and identified Kavanaugh in the

resulting photographic line-up:

                 Q:      And then you go on in your statement to say he was wanted
                 for a few other rapes. I’m going to stop there; who told you that?

                 A:     . . . Detective Persley told me that he was wanted, or that he
                 had recently had just been arrested for attacking his daughter or
                 something to that knowledge.

                 Q:     Did he tell you this before or after you picked his
                 picture out?

                 A:      Oh, this was six, seven months out. . . . He was just
                 telling me, I guess, calling me to keep me post[ed]—like, bring me
                 up to date on the situation with the case[.]

        Kavanaugh makes a similar argument regarding Morgan’s testimony, and it fails for

similar reasons. In his brief, Kavanaugh asserts that “Morgan testified that Adams had told her

that [he] had raped a girl and gotten away with it, or something similar to that.” The actual text

of Morgan’s statement is as follows:

                 Q:     Did Ms. Adams ever tell you at any time that [Kavanaugh]
                 had raped a girl in the past and gotten away with it or words like
                 that?


signed, dated, and identified as true under penalty of perjury. 28 U.S.C. § 1746. Baker’s deposition testimony in
2013 that she had been truthful during her interview with Hensinger does not meet these exacting requirements.


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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


               A:      Maybe something similar to that.

               ...

               Q:      And what about your dad; did your dad ever tell you that
               your attacker had raped somebody in the past?
               A:      I believe that it was more so that he’d been charged before.
               I don’t believe either of them have ever made a statement that
               he has done something.

Kavanaugh’s alleged evidence that the defendants improperly led Morgan or Baker to identify

him does not actually support his claim that Adams and Persley made such statements or that

they made such statements prior to the victims’ own identification of the suspect.

                                                 c.

       Kavanaugh also asserts that the only reason he was ever connected with the alleged

crimes was that Adams purposefully did so. That Adams apparently recognized Kavanaugh

from the Baker composite is not, in itself, support for his claim of malicious prosecution. This is

because on its face, it suggests no impropriety: a detective saw a victim’s composite sketch of

the suspect and thought it resembled a suspect encountered in a prior investigation.            But

Kavanaugh also argued before the district court that no photographic line-up had taken place

before he was arrested; thus, he averred, Adams had lied about the victims’ identification of

Kavanaugh to swear out a warrant. On appeal, this claim is jumbled; at any rate, Kavanaugh

seeks to support it with the same evidence presented to—and rejected by—the district court.

       To support his claim that Adams connected Kavanaugh to the assaults without the benefit

of victim confirmation, Kavanaugh first presents his own deposition testimony. Kavanaugh

states that, at the first interview after his arrest, Adams said that “she did not use a lineup” and

that “she had shown” the victims only “a single photo” of him.             However, Kavanaugh’s

testimony establishes only that he was identified from a single photo rather than a full photo




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array. While this identification was far from ideal, we must view the use of such improper

photographic evidence in light of the totality of the circumstances. Compare Simmons v. United

States, 390 U.S. 377, 383 (1968) and Milteer v. Baker, 121 F.3d 708 at *4 (6th Cir. 1997) with

Manson v. Brathwaite, 432 U.S. 98, 116 (1977) and Snyder v. United States, 590 F. App’x 505,

512 (6th Cir. 2014). Here, the record clearly establishes that both victims repeatedly identified

Kavanaugh as their assailant. Even taking Kavanaugh’s testimony as true, he does not show that

Adams’ alleged conduct resulted in his arrest or prosecution without probable cause.

       In the same vein, Kavanaugh presents an affidavit from the defense attorney who

accompanied him to the interview, David Zorin (“Zorin”). Zorin states:

              During the interview, I questioned Detective Adams as to how she
              identified Pleas Kavanaugh as the suspect. She stated it was
              simply based on a single computer generated identification sketch.
              I specifically asked her “is that all you have” and she responded
              “yes, that’s how we got him” or words to that effect. Detective
              Adams never mentioned anything about a “six pack” photo array
              or any other form of identification.

       Again, Zorin’s statement indicates that Adams identified Kavanaugh solely from the

composite sketch, and that this was the sole basis for identifying him with the case. However,

the district court notes that “Adams’s statement simply doesn’t address how the victims

identified Kavanaugh as the perpetrator.” Even drawing all inferences from this evidence in

Kavanaugh’s favor and assuming arguendo that “is that all you have?” followed by “yes”

suggests that no line-up existed before Kavanaugh was arrested, this Court must still place that

evidence in the context of the record and the legal claim at hand.         That record includes

Kavanaugh’s own admission that Baker’s composite sketch resembled him, as well as assertions

from Morgan and Baker that they identified him from a photographic line-up. Zorin’s statement

is a classic example of Anderson’s “scintilla of evidence”: even if the Court assumes




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Kavanaugh’s interpretation is correct, in context, Zorin’s statement is not probative evidence “on

which the jury could reasonably find for” Kavanaugh. Anderson, 477 U.S. at 252.

                                                 d.

        Kavanaugh asserts that Adams mislead the grand jury when she testified regarding the

results of the DNA tests conducted on blood found at the scene of Morgan’s attack. Adams

allegedly told the grand jury that the results of the DNA tests were unavailable. However, the

actual lab report indicates that testing was completed in March 2010, before Adams testified to

the grand jury in May 2010. When questioned on this point, Adams responded she had not

received the results of the DNA tests prior to testifying. Kavanaugh insists that Adams had the

results, though he presents no evidence that this was the case. Even assuming Adams had the

results, Adams “has absolute immunity from any § 1983 claim based on [her grand jury]

testimony.” Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012) (“[A] grand jury witness has

absolute immunity from any § 1983 claim based on the witness’ testimony. . . . [T]his rule may

not be circumvented by claiming that a grand jury witness conspired to present false testimony or

by using evidence of the witness’ testimony to support any other § 1983 claim concerning the

initiation or maintenance of a prosecution.”) Moreover, the lab results showed only that the

blood collected from the scene was Morgan’s. Thus, even if Adams outright lied about not

having the results, those results did nothing to further or hinder the case against Kavanaugh,

suggesting that the district court was correct to consider debate over the lab report a non-material

issue of fact.

                                                 2.

        There is no dispute that Kavanaugh was deprived of his liberty for the prosecution of the

attack against Morgan and that the Morgan case was resolved in his favor. See Webb, 789 F.3d




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Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


at 659. The parties disagree, however, regarding whether the prosecutor’s decision to dismiss

the charges against Kavanaugh regarding the attack on Baker constitutes resolving the legal

proceedings in his favor for the purposes of his malicious prosecution claim. As Kavanaugh has

failed to present sufficient evidence that the defendants lacked probable cause for his arrest and

prosecution, we need not wade into this issue.

                                                  3.

         The inquiry regarding whether Adams and Persley “made, influenced, or participated in

the decision to prosecute” Kavanaugh is dependent on whether they knew or should have known

that there was no probable cause to do so. Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir.

2015). Put another way, Kavanaugh must show that Adams and Persley “(1) stated a deliberate

falsehood or showed reckless disregard for the truth and (2) that the allegedly false or omitted

information was material to the finding of probable cause.” Gregory, 444 F.3d at 758. As

discussed in the probable cause analysis supra, however, Kavanaugh has not presented evidence

from which a jury could reasonably conclude that Adams and Persley deliberately or recklessly

disregarded the truth in their investigation.

         In all, Kavanaugh “fails to make a showing sufficient to establish the existence of an

element essential to [his] case” regarding one or more key parts of his claim. Celotex, 477 U.S.

at 322-23. The district court did not err in awarding the defendants summary judgment on this

basis.

                                                  C.

         Kavanaugh also claims that LFUCG and Bastin violated § 1983 by maintaining a policy

or custom of inaction when faced with dishonest conduct on the part of its law enforcement

officers (namely, Adams and Persley), and by failing to train them appropriately to avoid the




                                                 - 16 -
Case No. 14-6323, Kavanaugh v. Lexington Fayette Urban Cnty. Gov’t, et al.


same. To state a claim for liability under § 1983, Kavanaugh must demonstrate 1) a deprivation

of a constitutional right that was 2) caused by a person acting under color of law. Westmoreland

v. Sutherland, 662 F.3d 714, 718 (6th Cir. 2011); see also West v. Atkins, 487 U.S. 42, 48 (1988).

Local governments may be considered “persons” for the purposes of such a claim. Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). The only constitutional

violation Kavanaugh has alleged is a violation of his Fourth Amendment rights arising out of his

malicious prosecution. As Kavanaugh’s claim for malicious prosecution was properly dismissed

on summary judgment, he fails on his other § 1983 claims. Robertson, 753 F.3d at 622 (“There

can be no liability under Monell without an underlying constitutional violation.”).

                                               III.

       Based on the foregoing analysis, we AFFIRM the judgment of the district court.




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