              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0813n.06
                                                                                     FILED
                                        No. 08-2548                               Dec 18, 2009
                                                                            LEONARD GREEN, Clerk
                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


ANTHONY FLEMISTER,

       Plaintiff-Appellant,

              v.                                               On Appeal from the United
                                                               States District Court for the
CITY OF DETROIT; FLANAGAN, Lieutenant;                         Eastern District of Michigan
WINKLER, Sergeant; SHANNON DEKUN, Officer;
BRETT LETWIN, Officer; STEVEN PERRY,
Officer; TYMIKSHA PHEASANT, Officer; S.
ROBINS, Officer; LAURA SPLITT, Officer;
ROBERT WINKLER, Officer; JOHN DOE, 1-2;
JANE ROE, 1-2; COUNTY OF WAYNE; J.
HARRIS; JOHNSON; TAYLOR; PESSINA,
Sergeant; CARTER, Lieutenant; KARSSEN,
Sergeant; CLARKE-PRICE, Sergeant; CAROL
KENNEDY-STANLEY; PATRICIA ROBINSON;
SHARPE, Sergeant; LYNN CALDERONE;
RICHARD LEGREAIR; RONALD NUNN; DIANE
ONNIE,

       Defendants-Appellees.


                                                         /

Before:       GUY, SUTTON, and GRIFFIN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           Plaintiff Anthony Flemister appeals from

the entry of summary judgment against him with respect to claims arising out of his arrest

pursuant to a felony warrant issued for someone else who used plaintiff’s identity. The

district court found that because plaintiff could not demonstrate a constitutional violation as
No. 08-2548                                                                                            2

a matter of law, he could not prevail on his claims under 42 U.S.C. § 1983. Also, since

plaintiff did not challenge the validity of the warrant, he could not establish his state law

claims of false imprisonment, or assault and battery. After review of the record and the

applicable law, we affirm.

                                                   I.

        The plaintiff’s “mistaken identity” arrest occurred because, when arrested by Detroit

Police officers on November 2, 2004, Gregory Sanders identified himself as Anthony Jamal

Flemister.1 Sanders, who is plaintiff’s cousin, also gave plaintiff’s birth date as his own.

When Sanders failed to appear for arraignment, a felony arrest warrant was issued in the

name of Anthony Flemister. Plaintiff learned of the outstanding warrant when he was

stopped twice by police outside of Detroit. He was detained only a few hours on those

occasions because the Detroit police declined to come and take him into custody.

        On Friday, August 19, 2005, having applied for a job that would require a criminal

background check, plaintiff and his father walked into a Detroit police station and explained

that an outstanding arrest warrant mistakenly identified plaintiff as the alleged felon. After

plaintiff’s identification and the warrant information were checked, he was arrested and

booked. Fingerprinted by another officer, plaintiff protested that he was the “wrong person.”

No investigation was undertaken, and plaintiff was detained. Plaintiff’s mother contacted

several officers—including the officer who was responsible for investigating the charges in

question—to no avail. She and plaintiff gathered enough information, however, to figure out

        1
         Sanders, a passenger in a stolen vehicle that was stopped, was charged with several felony theft
offenses.
No. 08-2548                                                                                                  3

that it was Sanders who had used plaintiff’s identity when he was arrested. The next day,

Saturday, August 20, 2005, plaintiff was arraigned before a magistrate judge but did not raise

the issue of “mistaken identity” even though the charging document named “Anthony

Flemister a/k/a Gregory Sanders” as the defendant. The magistrate judge entered a not guilty

plea, ordered that plaintiff be held, and set bond. Pursuant to that order, plaintiff was

transferred to the Wayne County Jail at 3:30 p.m. on August 20, 2005.

        At the Wayne County Jail, plaintiff told several sheriff’s deputies that he was “the

wrong guy,” that “his cousin used his name,” and that they should “pull up the fingerprints”

or “match the photos.” Plaintiff alleged that these deputies did nothing to investigate or

follow up on this exculpatory information.2 Plaintiff’s mother talked to someone at the

Wayne County Prosecutor’s Office, but was advised to bring it up with the court and counsel.

Plaintiff was released on bond at 10:20 a.m. on Thursday, August 25, 2005, after being held

in the Wayne County Jail for approximately 4 ½ days. The charges were dismissed against

plaintiff at the preliminary hearing based on the investigating officer’s determination from

comparison of the photograph taken when Sanders was arrested that, in fact, plaintiff was not

the person wanted on the felony charges.

        In February 2007, plaintiff filed this action against the City of Detroit, seventeen

individual Detroit Police Department employees, Wayne County, and four individual Wayne

County employees. The complaint alleged that the municipal and individual defendants



        2
          The Wayne County sheriff’s deputies testified that they did not remember plaintiff, but would
customarily tell an inmate who protested his innocence to bring it up at the next court date, file a grievance,
or call someone like his attorney or social worker.
No. 08-2548                                                                                             4

violated plaintiff’s Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. §

1983, and that the individual defendants were liable under state law for false imprisonment,

and assault and battery. After discovery was conducted, the defendants moved for dismissal

or for summary judgment on a number of grounds, with the Detroit defendants relying on the

brief filed by the Wayne County defendants, and plaintiff filed a response in opposition. In

an order entered October 22, 2008, the district court concluded that plaintiff’s constitutional

rights were not violated and that he could not prevail on his state law claims. This appeal

followed.

                                                   II.

        Plaintiff suggests that we should review the decision as one for dismissal under Fed.

R. Civ. P. 12(b)(6). The district court’s order, however, entered summary judgment in favor

of the defendants and matters outside the pleadings were submitted to and considered by the

district court. Summary judgment is appropriate when there are no issues of material fact in

dispute and the moving party is entitled to judgment as a matter of law. F ED. R. C IV. P. 56(c).

In deciding a motion for summary judgment, the court must view the factual evidence and

draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We review the district court’s order

granting summary judgment de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.

1997).3



        3
        Even under the de novo review applicable to dismissals under Rule 12(b)(6), we would affirm. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (accepting the factual allegations as true, the court must
determine whether the allegations plausibly state a claim for relief).
No. 08-2548                                                                                               5

A.       42 U.S.C. § 1983

         Defendants argued that the individual defendants were entitled to qualified immunity

because “their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The two-part test for qualified immunity asks: (1) whether the facts that a plaintiff

has alleged or shown make out a violation of a constitutional right; and (2) if so, whether the

right at issue was clearly established at the time of the defendants’ alleged misconduct.

Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (holding sequential analysis no longer

mandatory); Saucier v. Katz, 533 U.S. 194, 201 (2001). Defendants’ arguments on summary

judgment focused entirely on the first part of the inquiry, and the district court granted the

motion on the grounds that plaintiff failed to demonstrate a constitutional violation in this

case.4

         To establish a § 1983 claim against an individual or a municipality, the plaintiff must

identify a right secured by the Constitution or laws of the United States and the deprivation

of that right by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988).      Here, plaintiff did not challenge the validity of the warrant, but alleged a

constitutional violation of the kind articulated in Baker v. McCollan, 443 U.S. 137 (1979).

There, the Supreme Court suggested that “mere detention pursuant to a valid warrant but in

the face of repeated protests of innocence will after the lapse of a certain amount of time



         4
         Whether the issue was addressed as the first step of the qualified immunity analysis, or as the
dispositive issue on the merits of the § 1983 claim, is immaterial as both ask whether plaintiff has alleged
or can prove a constitutional violation.
No. 08-2548                                                                                             6

deprive the accused of ‘liberty . . . without due process of law.’” Id. at 145.

        The Court in Baker noted that innocence was largely irrelevant to such a due process

claim, explaining that: “The Constitution does not guarantee that only the guilty will be

arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—

indeed, for every suspect released.” Id. As the Court further explained:

                The Fourteenth Amendment does not protect against all deprivations of
        liberty. It protects only against deprivations of liberty accomplished “without
        due process of law.” A reasonable division of functions between law
        enforcement officers, committing magistrates, and judicial officers—all of
        whom may be potential defendants in a § 1983 action—is entirely consistent
        with “due process of law.” Given the requirements that arrest be made only
        on probable cause and that one detained be accorded a speedy trial, we do not
        think a sheriff executing an arrest warrant is required by the Constitution to
        investigate independently every claim of innocence, whether the claim is based
        on mistaken identity or a defense such as lack of requisite intent. Nor is the
        official charged with maintaining custody of the accused named in the warrant
        required by the Constitution to perform an error-free investigation of such a
        claim. The ultimate determination of such claims of innocence is placed in the
        hands of the judge and the jury.

Id. at 145-46. In Baker, the Supreme Court held that the plaintiff could not demonstrate a

due process violation based on his three-day detention over a New Years’ weekend by county

officials on a valid warrant that mistakenly identified him as the accused.5

        The plaintiff in Baker was named in the warrant because his brother had identified

himself as the plaintiff when he was arrested. The brother was also in possession of a


        5
         The dissent in Baker would have held that due process requires that “fair procedures be employed
to ensure that the wrong individual is not subject to the deprivations of liberty attaching to pretrial
detention.” Id. at 153 (Stevens, J., dissenting). The majority commented that the analysis employed by the
dissent would make it “virtually impossible to reach a conclusion other than that any case of
misidentification in connection with an arrest made pursuant to an admittedly valid warrant or concededly
on probable cause would constitute a deprivation of liberty without due process of law.” Baker, 443 U.S.
at 146 n.5.
No. 08-2548                                                                                     7

duplicate of the plaintiff’s driver’s license, although it had been altered to show the brother’s

picture. As a result, when a felony arrest warrant issued, it was issued in the plaintiff’s name.

Later, the plaintiff was arrested on that warrant, despite his protestations of mistaken identity.

He was detained by the city police for four days and then held for three more days by the

county defendants before anyone compared his photograph with the “wanted man.” With the

mistake discovered, the plaintiff was released. The Court in Baker emphasized that the

plaintiff did not challenge the validity of the warrant, but alleged that the county officials had

made no effort to verify the plaintiff’s identity by checking the photographs or fingerprints.

       The question of how long such a mistaken-identity detention must be for it to

implicate a constitutional due process right was not resolved by the Court in Baker. What

we do know—and what is dispositive in this case—is that the detention in Baker was not

long enough even though it continued in the face of plaintiff’s protests and the alleged ready

availability of photographs and fingerprints that would ultimately clear him. The parallels

with this case are obvious. Indeed, as in Baker, Flemister maintains that the defendants could

have and should have determined sooner from a comparison of the photographs and

fingerprints that it was actually Sanders who was wanted on the felony warrant. As the

district court recognized, while troubling that a comparison was not made sooner, the

question is not what defendants could or should have done but whether what they did

violated his constitutional rights.

       This court applied Baker to a mistaken-identity detention in Gray v. Cuyahoga County

Sheriff’s Dept., 150 F.3d 579, 582-83 (6th Cir. 1998), and concluded that the 41-day
No. 08-2548                                                                                              8

detention of the “wrong man” in that case was sufficient to assert a due process claim. In

reaching this conclusion, the court relied on two district court decisions involving detentions

of 12 days and 30 days, respectively, which were found to be sufficient to state a claim upon

which relief may be granted. Id. at 583. Reversing the grant of summary judgment to the

defendants in Gray, this court explained that the principal question for the trier of fact on

remand would be whether the defendants acted with deliberate indifference in failing to

ascertain that the person in custody was not the person wanted on the parole violation

warrant. Id. That a 41-day detention was held to be sufficiently long in Gray does not say

much about whether the lapse of time in this case implicates the constitutional due process

right articulated in Baker.

        Nor do the cases cited by plaintiff persuade us that the district court erred in granting

summary judgment to the defendants. For instance, in Lee v. City of Los Angeles, 250 F.3d

668 (9th Cir. 2001), a mentally ill California resident was incarcerated for two years after

being extradited to New York on a fugitive warrant issued for someone else with the same

last name and date of birth. The Ninth Circuit rejected the California officials’ argument for

dismissal on the grounds that the plaintiff was in their custody for only one day before the

extradition hearing, explaining that, at least at the pleading stage, the plaintiff had sufficiently

alleged a denial of due process after arrest and deliberate indifference by the California

defendants who detained him on the fugitive warrant without verifying his identity.6


        6
         Plaintiff also argues that a detention of 14 hours was held to be sufficient to state a Baker due
process claim in Cleveland v. City of Detroit, 275 F. Supp.2d 832, 840-41 (E.D. Mich. 2003). In fact, the
opinion’s brief discussion of the claims asserted against the city defendants did not expressly conclude as
much. Whatever inferences might arguably be drawn from the denial of summary judgment do not provide
No. 08-2548                                                                                                  9

        We find, as the district court did, that this case is materially indistinguishable from

Baker, and are compelled to conclude that plaintiff cannot establish a constitutional

deprivation of liberty without due process of law. As such, summary judgment was properly

entered in favor of the defendants on plaintiff’s § 1983 claims.7

B.      State Law Claims

        To prevail on a claim of false imprisonment, “the plaintiff must show that the arrest

was not legal, i.e., that it was made without probable cause.” Tope v. Howe, 445 N.W.2d

452, 459 (Mich. App. 1989). The assault and battery claims are also barred by the conceded

lawfulness of the arrest, as there has been no claim of excessive force in this case. Id.

Plaintiff argues on appeal that his arrest pursuant to an admittedly valid warrant did not

necessarily defeat his claims of false imprisonment under Flones v. Dalman, 502 N.W.2d

725, 729 (Mich. App. 1993). Plaintiff’s reliance on Flones is misplaced.

        The court in Flones recognized that “an officer who merely executes a warrant that

is valid on its face is protected from liability,” but concluded that this was not a bar to the

plaintiff’s claim of false imprisonment in that case. Id. That is, the plaintiff’s claim could

proceed because the defendant had concealed exculpatory information from the magistrate

judge who issued the warrant. In this case, there is no similar challenge to the probable cause



a basis to reverse the decision in this case. In addition, although the plaintiff was only detained by the city
defendants overnight, she was detained by the county defendants for two more weeks before it was
determined that she was not the person with the same last name who was sought on the warrant.
        7
          Having found plaintiff could not establish a constitutional violation, we need not address either the
individual defendants’ additional arguments concerning qualified immunity, or the further showing required
to establish municipal liability under § 1983. See generally Pearson, 129 S. Ct. at 818; City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986).
No. 08-2548                                                                             10

to issue the arrest warrant. The district court did not err in granting summary judgment to

the individual defendants with respect to plaintiff’s state law tort claims.

       AFFIRMED.
No. 08-2548                                                                                 11

       SUTTON, J., concurring. I join Judge Guy’s well-reasoned opinion in full and write

separately to point out one unusual feature of this case. In contrast to most mistaken-identity

cases, Flemister tried to solve this problem on his own. Rather than being picked up by the

police on the basis of a mistaken arrest warrant, Flemister went to the police station to

explain the problem, and only then did the police arrest him.

       That is not how these cases usually arise. More often than not, the police take

someone into custody after a stop of the individual (for, say, a speeding violation) and after

the police then learn of an outstanding arrest warrant in the individual’s name. At that point,

one can understand why the police might give short shrift to a suspect’s protestations of

innocence. It is less obvious why the police should think that an individual who presents

himself to the police to clear up a mistaken-identity arrest warrant does not in fact suffer

from a case of mistaken identity.

       Future courts, to say nothing of the police, may wish to consider the distinction. The

distinction makes no difference here due to the brevity of Flemister’s initial confinement, the

reality that he offered the defendants no opportunity to correct the mistake at his arraignment

and the reality that no cases cited by Flemister (or found by us) have drawn this distinction

(which would undermine his claim at step two of the qualified immunity analysis).
