                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0610n.06
                            Filed: August 22, 2006

                                           No. 05-5711

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

JOSEPH BIELEFELD,                      )
                                       )
       Plaintiff-Appellant,            )              ON APPEAL FROM THE UNITED
                                       )              STATES DISTRICT COURT FOR THE
v.                                     )              WESTERN DISTRICT OF KENTUCKY
                                       )
JANET M. HAINES; BRIAN K. HAINES; )
METRO LOUISVILLE, dba Metro Louisville )                             OPINION
Police Department; CAROLYN NUNN,       )
                                       )
       Defendants-Appellees.           )
                                       )


Before: GILMAN and COOK, Circuit Judges; DOWD, Senior District Judge.*

       Per Curiam. This is an action brought by the Plaintiff-Appellant Joseph Bielefeld pursuant

to 42 U.S.C. § 1983 against Defendants-Appellees Janet Haines, Brian Haines, Louisville Metro

Police Department and Carolyn Nunn, a detective in the Louisville Metro Police Department.

       On May 23, 2002, the Plaintiff was indicted in the Jefferson County, Kentucky Circuit Court,

Criminal Division, on one count of sexual abuse in the first degree based on the allegation that he

subjected a young son of the Haines’ to sexual contact in violation of Kentucky Revised Statute, §

510.110(1)(b)(2).

       The Plaintiff was subsequently acquitted in a bench trial of the alleged crime and he now

brings claims collectively under Title VII, 42 U.S.C. §§ 1983 & 1985, the Civil Rights Act of 1991,


       *
        The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 05-5711
Bielefeld v. Haines, et al.

and Kentucky Revised Statute § 344. In addition to the statutory violations, he also alleges torts of

malicious prosecution, false arrest, outrage, and slander. Plaintiff initially brought a slander claim

only against Brian Haines. In his second amended complaint, Plaintiff added a slander claim

against Janet Haines.

        The district court, the Honorable Thomas B. Russell presiding, granted summary judgment

in favor of Defendants on all claims and this appeal followed.

        Two issues are presented on appeal: (1) Did the district court properly dismiss the slander

claims because they were barred by the statute of limitations? (2) Did the district court properly

grant summary judgment to Defendants on the malicious prosecution claim?1

        Because our answer to both questions is yes, we affirm.

        In granting the motion for summary judgment, Judge Russell wrote an extensive opinion

analyzing each of the claims. He began his opinion with the following summary of evidence:

                Mr. Haines rented office space from Mr. Bielefeld. Sometimes, Mr. Haines
        would bring his two sons down to his office. Mr. Bielefeld had an office near Mr.
        Haines’s office in the same building. When Mr. Haines’s children would come to
        his office, they often went to Mr. Bielefeld’s office as well. Mr. Bielefeld had toys
        in his office and he also had a computer that he let children use when they visited
        him. While using the computer, the children sat on Mr. Bielefeld’s lap. Mr. Bielefeld
        claims that he kept his door open when children visited.


        1
         The appeal lists only one issue presented for review, that summary judgment was wrongly
granted because “the facts of the case were not taken in a light most favorable to the nonmovant[.]”
Appellant’s Brief at 2. A generous reading of the appeal yields the two issues identified above. See
also Appellant’s Summary of Argument, Br. at 13, where Appellant’s counsel claims: “First, Mr.
Bielefeld’s slander action is not barred by the one year statute of limitations as a statute of
limitations was tolled until his injury became fixed . . . . Secondly, Mr. Bielefeld has alleged
specific and sufficient facts to defeat a motion for summary judgment for his malicious prosecution
claims.”

                                                  2
No. 05-5711
Bielefeld v. Haines, et al.

                 On May 9, 2002, Mrs. Haines was thinking about taking her children to her
        husband’s office for a while. She asked her five year old son D.H. if Mr. Bielefeld
        had ever done anything weird. Then she asked D.H. if Mr. Bielefeld had ever played
        with D.H.’s butt. D.H. responded, “No, but he touched my pee-pee.” Mrs. Haines
        called her husband Mr. Haines, told him about what D.H. said, and asked him to
        come home. When Mr. Haines got home, he put D.H. on his lap like Mr. Bielefeld
        allegedly did and either Mr. or Mrs. Haines asked D.H. if Mr. Bielefeld touched his
        belly. The child again told his parents that Mr. Bielefeld touched his “pee-pee” by
        placing his hand on the child’s penis over the child’s clothes. After this disclosure,
        Mrs. Haines, who is a detective with the Louisville Metro Crimes Against Children
        Sexual Abuse unit, called one of the sergeants in the department to report the abuse.
        Mr. and Mrs. Haines claim that they had no further involvement in the investigation,
        arrest, or decision to prosecute except as parents of the allegedly abused child.

                 D.H. was interviewed by Valleri Mason, a forensic interviewer at Children’s
        First, and D.H. repeated his allegation that Mr. Bielefeld had touched his “pee-pee.”
        D.H.’s allegations were investigated by Detective Nunn. After the investigation
        concluded, Detective Nunn testified about D.H.’s forensic interview to the grand
        jury. The grand jury indicted Mr. Bielefeld on one count of sexual abuse, and he was
        arrested by Detective Nunn and two other officers. At Mr. Bielefeld’s criminal trial,
        the judge gave him a directed verdict and dismissed the charges.

April 7, 2005 Memorandum Opinion at 2-3, Joint Appendix (“JA”) at 32-33.

        Appellant claims that before the grand jury, Detective Nunn embellished D.H.’s claims as

written in Mason’s report. According to the report, D.H. said Appellant “touched” his penis while

Nunn testified to the grand jury that Appellant “touched” D.H.’s penis and at another point stated

that he “rubbed” it. JA at 90.

        The frequency of the allegedly illegal contact was also an issue. Nunn testified to the grand

jury that contact had occurred “between 10-15 times.” JA at 91. The boy’s father, Brian Haines,

had told an investigator that D.H. was alone with Appellant in Appellant’s office on 10-15

occasions. JA at 81. D.H. never stated that contact had occurred “between 10-15 times.” However,

the investigator included in her report that “the child stated that [Appellant] has also touched his pee-

                                                   3
No. 05-5711
Bielefeld v. Haines, et al.

pee ‘lots of times’ too.” Report of Investigator Valleri Mason, JA at 95. At trial, D.H. testified that

Appellant had touched his penis only one time. JA at 89.

        This court reviews a district court’s granting of summary judgment de novo. Blackmore v.

Kalamazoo County, 390 F.3d 890, 894-895 (6th Cir. 2004) (citing Terry Barr Sales Agency, Inc. v.

All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996)). Summary judgment is appropriate where there are

no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56. When considering a motion for summary judgment, “the inferences to be drawn

from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories,

and admissions] must be viewed in the light most favorable to the party opposing the motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, the adverse party “may not rest

upon mere allegation or denials of his pleading, but must set forth specific facts showing that there

is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

        A. Slander

        Appellant agrees that the applicable statute of limitations for his state-law slander claims

against the Haines is one year from the date when the statements are made. Ky. Rev. Stat.

413.140(1)(d). As Appellant states in his brief: “In the past, the law has strictly been that the

commencing of the running of the statute of limitations is when the slanderous statement is made.”

Appellant’s Br. at 16. Appellant cites in support of this general rule Caslin v. General Electric Co.,

608 S.W. 2d 69 (Ky. Ct. App. 1980) and Lashlee v. Sumner, 570 F.2d 107 (6th Cir. 1978).

        Appellant argues, however, that “there is a trend in Kentucky and in other states that the

statute of limitations begins to run from the date that the injured party learns of the injury or wrong

                                                  4
No. 05-5711
Bielefeld v. Haines, et al.

doing giving rise to the cause of action.” Appellant’s Br. at 16. In support of this argument,

Appellant cites Pedigo v. Breen, 169 S.W. 3d 831 (Ky. 2004). In Pedigo, plaintiff alleged that an

attorney’s loss of her medical records caused her to enter into a subsequent settlement for less than

the claim’s true value. The Kentucky Supreme Court reversed the Court of Appeals’ ruling in favor

of the attorney and concluded that in an action for professional negligence, a “claim does not accrue

until there has been a negligent act and until reasonably ascertainable damages are incurred.” 169

S.W.2d at 833 (citation omitted). Appellant argues that damages could not be fixed on his slander

claims until the criminal trial ended and hence the statute of limitations should be tolled.

        Appellant offers no citations of authority for the proposition that under Kentucky law, the

statute of limitations for a slander action is tolled pending a final determination of damages. Nor

should it be. In the Pedigo case, an element of the damages suffered by the plaintiff in an attorney

malpractice case depended upon the resolution of a later proceeding before damages could be fixed.

        In this case, the slanderous statements attributed to the Haines were made shortly after the

initial reporting of the alleged incidents to authorities. Once the statements were made, the statute

began to run. In fact, Appellant is claiming damages not from these statements, but from the trial

which was prosecuted not by the Haines but by the other Appellees in this matter. The slander

claims against the Haines were properly dismissed and the district court’s judgment is affirmed.

        B. Malicious Prosecution Claims

        The district court discerned that Plaintiff had alleged both a state law malicious prosecution

claim and a Section 1983 claim for malicious prosecution based on the Fourth Amendment. This




                                                  5
No. 05-5711
Bielefeld v. Haines, et al.

court concludes that summary judgment was properly granted on both of these claims. Because the

reasons to affirm the state and federal claims are similar, these two claims are considered together.

        In Kentucky, a claimant must prove all of the following six elements to establish a state-law

malicious prosecution claim:

        (1)     the institution or continuation of original judicial proceedings, either
                civil or criminal, or of administrative or disciplinary proceedings,
        (2)     by, or at the instance of, the plaintiff,
        (3)     the termination of such proceedings in defendant’s favor,
        (4)     malice in the institution of such proceeding,
        (5)     want or lack of probable cause for the proceeding, and
        (6)     the suffering of damage as a result of the proceeding.

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Further, the prerequisites for maintaining the

action are “strict” due to the public policy considerations in favor of the exposure of crime. Id.

        Previously, a claim of malicious prosecution was actionable under Section 1983 where all

elements of the state law tort were present and probable cause was lacking as defined by the Fourth

Amendment. However, the elements of a malicious prosecution claim under Section 1983 no longer

rely upon varying state laws within the circuit. Coogan v. City of Wixom, 820 F.2d 170 (6th Cir.

1987), overruled, Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001). Instead, following the

United States Supreme Court decision in Albright v. Oliver, 510 U.S. 266 (1994), this circuit has

recognized a Section 1983 claim for malicious prosecution based on the Fourth Amendment.

Probable cause for the allegedly offending arrest and prosecution remains a chief defense to that

claim. Thacker v. City of Columbus, 328 F.3d 244 (6th Cir. 2003); Darrah v. City of Oak Park, 255

F.3d 301 (6th Cir. 2001).




                                                   6
No. 05-5711
Bielefeld v. Haines, et al.

        The district court properly granted summary judgment on the malicious prosecution claims

as to Janet and Brian Haines. At most, Appellant contends that the Haines reported the alleged

incidents. There is no evidence submitted to hold the Haines responsible for commencing criminal

proceedings under either Kentucky law or the Fourth Amendment.

        As to the Louisville Police Department and Detective Nunn, there is sufficient evidence of

probable cause to support the arrest and indictment. The existence of probable cause for an arrest

and prosecution defeats a Section 1983 claim under the Fourth Amendment. Braley v. City of

Pontiac, 906 F.2d 220 (6th Cir. 1990). Likewise, the fifth factor of Appellant’s state-law claim

requires evidence demonstrating a lack of probable cause. Raine v. Drasin, supra.

        Appellant agrees that Judge Russell correctly stated the law that “an indictment, fair upon

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

cause.” Appellant’s Br. at 22. See Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002).

Appellant instead argues that the fairness of the grand jury proceedings was tainted by Detective

Nunn’s alleged “lies” related to the detective’s testimony that Appellant “rubbed” D.H.’s penis and

the frequency of those alleged incidents.

        Appellant argues that taking these two facts in a light most favorable to Appellant would be

sufficient to defeat Defendants’ motion for summary judgment on both the state-law and Section

1983 malicious prosecution claims. The issue to be determined at trial would be whether Detective

Nunn committed perjury or otherwise defrauded the grand jury. See Jones v. City of Chicago, 856

F.2d 985, 994 (7th Cir. 1988). Appellees cite Commonwealth v. Baker, 11 S.W.3d 585 (Ky. App.

Ct. 2000), for the proposition that courts will not look behind an indictment to the evidence

                                                 7
No. 05-5711
Bielefeld v. Haines, et al.

presented to the grand jury unless the challenging party can show a flagrant abuse of the grand jury

process. While Appellant does not provide a legal standard for determining when the proceedings

are tainted for either his federal or state-law claim, he does state that “[h]er testimony is tainted with

her total and reckless disregard for the truth, making the grand jury indictment insufficient to

establish probable cause.” Appellant’s Br. at 23.

        Using any of the standards indicated above, including reckless disregard for the truth, there

was insufficient evidence submitted by Appellant to the district court to survive Defendants’ Motion

for Summary Judgment.

        As the record demonstrates, Detective Nunn said that such violations occurred “between 10-

15 times” rather than reciting what the report said, which is that Appellant touched D.H.’s penis

“lots of times, too.” JA at 95. The district court concluded that the statement was not false and was

not deliberately reckless with the truth. Because the report said “lots of times,” the difference

between the statements is immaterial. Although D.H. stated at trial that there was only one touching,

the challenged grand jury testimony and the report upon which it was based did not have that benefit

of that statement.

        “Touching” and “rubbing,” as Detective Nunn testified, is more than “touching” as written

in the report. However, the report also recites that while Appellant was touching D.H., the boy

stated that Appellant’s “knees were going up and down slowly.” JA at 94. At another point in the

interview, the interviewer asked:

        “You were sitting on his legs and they were going up and down slow, did you feel
        anything?” The child stated, “Yeah, him touching my pee-pee.” This interviewer



                                                    8
No. 05-5711
Bielefeld v. Haines, et al.

        asked, “Did his hand stay still, move around, or do something different?” He stated,
        “It just stayed there.”

Report of Valleri Mason, JA at 94.

        The district court concluded that because Detective Nunn testified there was a touching, it

was sufficient for a grand jury indictment because touching, rather than rubbing, is all the contact

that is required for the Kentucky criminal statute under which Appellant was charged, i.e. first

degree sexual abuse. Ky. Rev. Stat. Section 510.110(1)(b)(2).

        Appellant has not established facts sufficient to create a material issue of fact for resolution

on the issue of the fairness of the grand jury proceedings. Accordingly, the district court also

properly granted summary judgment to the Louisville Police Department and Detective Nunn on the

federal and state-law claims of malicious prosecution.

        Judgment AFFIRMED.




                                                   9
