               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0635n.06

                                       Case No. 17-6540

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                         Dec 20, 2018
MATTHEW HOWELL                                       )
                                                                     DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )     ON APPEAL FROM THE UNITED
v.                                                   )     STATES DISTRICT COURT FOR
                                                     )     THE MIDDLE DISTRICT OF
JOSEPH COX; GOVERNMENT OF                            )     TENNESSEE
FAIRVIEW, TENNESSEE                                  )
                                                     )
       Defendants-Appellees.                         )
                                                     )


       BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. Matthew Howell’s case began the way many eventful nights do:

at a bar. While playing poker at the bar, Howell got into a verbal fight, and Officer Joseph Cox

issued him a citation for public intoxication. After Howell’s acquittal, he sued Cox and the City

of Fairview, Tennessee, for malicious prosecution and retaliatory prosecution. The district court

granted the defendants’ motion for summary judgment. We affirm.

                                                I.

       Matthew Howell went to a bar to play poker and have a few drinks. But his night took a

turn for the worse when he got into an argument with another poker player. Police were called to

the scene, and Howell left the bar. Howell claims that he was not intoxicated and was “ready . . .

to go,” so he paid his tab and left. R. 31-1, Pg. ID 82. Officer Cox saw it differently. When Cox
Case No. 17-6540, Howell v. Cox


arrived on the scene, he encountered Howell outside walking away from the bar. Cox stopped and

spoke to Howell—who Cox said smelled like alcohol, was unsteady, and had bloodshot eyes.

Howell confirmed that he had gotten into an argument at the bar. Cox then entered the bar to speak

to the owner. According to Cox, the owner stated that her staff had stopped serving Howell alcohol

and had asked him to leave because of his level of intoxication. The bar owner also told Cox that

Howell had been using “foul language” even though children were present. R. 32-1, Pg. ID 125.

When Cox returned outside, Howell was still using profanity and sexually explicit language. Cox

then arrested Howell for disorderly conduct, but he ultimately decided to issue him a citation for

public intoxication instead.

       After arresting Howell, Cox took him to the police station to process him and fill out the

citation. Howell then went home with a friend. When Howell’s first trial ended in a mistrial, the

court scheduled a second one. But Howell did not receive notice of this court date, so he failed to

appear, and the court issued a warrant for his arrest. Cox, while out on patrol, saw Howell and

temporarily detained him until the local sheriff’s department arrived and officially arrested Howell.

Howell spent fifteen days in jail before the court released him and rescheduled the second trial.

When that trial finally happened, Howell was acquitted.

       Nearly a year later, Howell sued Cox and the City of Fairview, Tennessee. Howell brought

a § 1983 suit, alleging that the prosecution against him was malicious and retaliatory, in violation

of his Fourth and First Amendment rights. After the district court granted summary judgment for

the defendants, Howell appealed. We review his claims de novo. Miller v. Maddox, 866 F.3d 386,

389 (6th Cir. 2017).




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                                                 II.

       Malicious prosecution. Howell first claims that the defendants maliciously prosecuted him

by arresting him on a charge without probable cause. Among other requirements of this claim,

Howell must show that the criminal proceeding caused a deprivation of his liberty apart from the

initial arrest and that the defendants caused that deprivation. See Sykes v. Anderson, 625 F.3d 294,

308–09 (6th Cir. 2010) (holding that a criminal proceeding must cause deprivation); Powers v.

Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 597, 608–09 (6th Cir. 2007) (stating that

causation must be tied to defendant). To meet this element, Howell points to the fifteen days he

spent in jail and asserts that this deprivation was foreseeable to Cox.

       In a typical case, a plaintiff has no trouble proving this element because the officer’s

initiation of the prosecution causes the deprivation.      See, e.g., Sykes, 625 F.3d at 301–02

(explaining that the plaintiffs were imprisoned after being convicted of charges for which the

officers had manufactured evidence). But here, there was an intervening act that broke the causal

chain. Powers, 501 F.3d at 609–10 (holding that an intervening act by a third party can break the

causal chain between the defendant’s conduct and the plaintiff’s injury). To break the causal chain,

the intervening act must have occurred after the defendant’s conduct and must not have been

reasonably foreseeable to the defendant. Id. at 610.

       In cases arising from criminal proceedings, such as this one, a judge often commits an

intervening act. A judge may, for example, make a finding of probable cause at a preliminary

hearing or issue a warrant. Such an intervening act breaks the causal chain when the judge’s action

is independent from any misrepresentations, omissions, or other wrongdoing by the defendant.

See id.; DePiero v. City of Macedonia, 180 F.3d 770, 789 (6th Cir. 1999) (rejecting a § 1983

unreasonable seizure claim against an officer because the officer “had no role in [the] issuance of



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the bench warrant”); see also Piazza v. Lakkis, No. 3:11-21, 2013 WL 424724, at *4 (M.D. Pa.

Feb. 4, 2013) (stating that the defendant was neither “personally [n]or directly involved” in the

missed court date which led to the issuance of a bench warrant for the plaintiff). In this case, an

intervening act broke the causal chain: the judge’s issuance of the warrant for Howell’s failure to

appear. When Cox issued the public intoxication citation nearly three years earlier, he could not

have reasonably foreseen that (1) the court would fail to notify Howell about the court date,

(2) Howell would fail to appear, and (3) Howell would then be held in jail. This series of events

may have been imaginable, but it was not reasonably foreseeable. Cf. Hays v. Jefferson Cty.,

668 F.2d 869, 871 n.1 (6th Cir. 1982).

       Howell has not pointed to any evidence to suggest that Cox played a role in the court’s

decision to issue the warrant. Cox’s role in executing the warrant does not show this. It also fails

to prove that Howell’s detention was reasonably foreseeable. To determine foreseeability, we look

at when the defendant committed the allegedly wrongful conduct. See Powers, 501 F.3d at 609.

So here, we examine the moment when Cox issued Howell the citation for public intoxication. At

that moment, there was no indication that Howell would miss a court date more than two years

later or that Howell would fail to receive notice of future court dates. To avoid this conclusion,

Howell points to cases in which the intervening act of a grand jury, judge, or prosecutor did not

break the causal chain. But in each of these cases the decision-maker relied upon the officer’s

misrepresentation, omission, or other wrongdoing when making the decision that deprived the

plaintiff of her liberty. See King v. Harwood, 852 F.3d 568, 587–88 (6th Cir. 2017) (explaining

that if an officer fabricates evidence to create the appearance of probable cause, an indictment does

not prevent the plaintiff from proving that the prosecution lacked probable cause); Miller, 866 F.3d

at 390–91, 393–94 (explaining that an officer could be held responsible for malicious prosecution



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after a judge, in reliance on the officer’s false testimony, set bond conditions that were a

“deprivation of liberty”); Sykes, 625 F.3d at 314–15 (finding a sufficient causal link when the

officer gave the prosecutor a warrant application and investigatory materials with knowingly false

information, the prosecution approved the application, the judge issued the warrant, and then the

plaintiff was arrested). Here, in contrast, Cox did not play a role in the judge’s decision to issue

the warrant.

       Because Howell cannot prove that Cox foreseeably caused his deprivation of liberty, he

cannot prove his malicious prosecution claim against Cox or the City of Fairview (for failing to

supervise Cox). See Floyd v. City of Detroit, 518 F.3d 398, 411 (6th Cir. 2008) (stating that where

there is no constitutional violation, there cannot be a violation for failure to train). Therefore, the

defendants were entitled to summary judgment on Howell’s malicious prosecution claim.

                                                  III.

       Retaliation. Howell next argues that the district court incorrectly concluded that he filed

his retaliation claim too late. The statute of limitations for retaliation is one year. Hughes v.

Vanderbilt Univ., 215 F.3d 543, 547 (6th Cir. 2000). And the statute begins to run “when the

plaintiff knows or has reason to know” of his injury. Id.

       Howell knew of his injury well over a year before he sued. He knew of it the night of his

arrest in 2012. At that time, Howell was able to allege a prima facie case of retaliatory arrest or

retaliatory prosecution:     (1) protected speech (profanity and sexually explicit language),

(2) adverse action (arrest and citation for public intoxication), (3) in retaliation for his speech, and

(4) a lack of probable cause. See Bickerstaff v. Lucarelli, 830 F.3d 388, 399 (6th Cir. 2016)

(retaliatory prosecution claim); Wesley v. Campbell, 779 F.3d 421, 435 (6th Cir. 2015) (retaliatory

arrest claim). And because favorable termination of the criminal charge is not an element of either



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retaliation claim, Howell did not have to wait to see how his case turned out. Bickerstaff, 830 F.3d

at 399; Wesley, 779 F.3d at 435. Thus, Howell’s 2016 suit was filed nearly four years later than it

could have been, seemingly well beyond the one-year statute of limitations.

       But Howell claims the violation was ongoing and thus, under the continuing-violation

doctrine, he did not need to file his claim within one year of first discovering it. The continuing-

violation doctrine has two categories. The first category applies if Howell can prove that Cox

repeatedly violated his First Amendment rights, such that if Cox stopped his unconstitutional

conduct, Howell would not have suffered additional injuries. Hensley v. City of Columbus, 557

F.3d 693, 697 (6th Cir. 2009) (refusing to apply the continuing-violation doctrine to the plaintiffs’

due process claim that the city took their ground water because the city took the plaintiffs’ ground

water only one time); Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 522 (6th Cir. 1997)

(finding that a county ordinance effectuated a continuing violation of the plaintiff’s right to

intrastate travel because the ordinance “actively deprived [the plaintiff] of its asserted

constitutional rights every day that it remained in effect”).

       Cox arrested and then cited Howell—allegedly in retaliation for his speech. But Cox did

not engage in ongoing conduct that amounted to repeated retaliatory arrests or prosecutions.

Howell argues that he would not have suffered additional injuries if Cox had “ended the

wrongdoing by telling the truth.” Appellant Reply Br. 11. True, the prosecutor may have

dismissed the case if Cox had come forward and said that Howell was not in fact intoxicated the

night of the arrest. But any “injury” that Howell suffered because Cox did not come forward was

merely an effect of Cox’s initial arrest and citation—Howell had to continue defending himself

against the prosecution. See McCune v. City of Grand Rapids, 842 F.2d 903, 905–06 (6th Cir.

1988). And to qualify as a continuing violation, Howell must prove that Cox’s continuing unlawful



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acts caused him to suffer continuing injuries. See Hensley, 557 F.3d at 697; McCune, 842 F.2d at

905–06. This he cannot do.

       The second category of continuing violations exists when the defendant has committed

several distinct acts of wrongdoing, and the cumulative effect of these acts amounted to a

constitutional violation. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–17 (2002);

Sharpe v. Cureton, 319 F.3d 259, 266–67 (6th Cir. 2003). But if the defendant’s separate acts of

wrongdoing are individually actionable, the continuing-violation doctrine does not apply.

Morgan, 536 U.S. at 113; Bowerman v. Int’l Union, United Auto., Aerospace & Agric. Implement

Workers of Am., Local No. 12, 646 F.3d 360, 366–67 (6th Cir. 2011); Sharpe, 319 F.3d at 267. In

Sharpe, for example, the continuing-violation doctrine did not apply to the plaintiffs’ retaliation

claim because the wrongful acts that the plaintiffs alleged—a discriminatory job transfer, a denial

of merit pay, and a refusal to return the plaintiffs to their original employment locations—were

separate acts of retaliation that were individually actionable. Sharpe, 319 F.3d at 267.

       Howell argues that Cox committed a “continual scheme of retaliation.” Appellant Br. 10.

This scheme, according to Howell, included Cox’s (1) arresting Howell, (2) issuing him the

citation, (3) detaining him pursuant to the warrant, and (4) testifying falsely against him at the two

trials. But the first two acts of wrongdoing are individually actionable, see Bickerstaff, 830 F.3d

at 399 (retaliatory prosecution claim); Wesley, 779 F.3d at 435 (retaliatory arrest claim), so they

cannot be part of a continuing violation, see Sharpe, 319 F.3d at 267. These claims could have

been brought on the night of Howell’s arrest in 2012—Cox did not need to commit any additional

acts. See Morgan, 536 U.S. at 115. And Cox’s allegedly wrongful detention and testimony at the

trials do not help because Howell premised his retaliation claims in his complaint only on the arrest




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and prosecution. So failure to advance these claims in his complaint defeats his argument before

us.

       The continuing-violation doctrine rarely applies to § 1983 claims, and this case is no

exception. Bowerman, 646 F.3d at 366; Sharpe, 319 F.3d at 267. It may have been inconvenient

for Howell to bring his retaliation claims while the prosecution was in progress, but that is what

the law requires. Thus, Howell’s retaliation claims, filed almost four years after his arrest in 2012,

are time-barred.

       We affirm.




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