                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 08a0660n.06
                             Filed: November 3, 2008

                                           No. 07-4539

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


TABATHA C. MANLEY,                                       )
                                                         )
          Plaintiff-Appellant,                           )
                                                         )
v.                                                       )    On Appeal from the United
                                                         )    States District Court for the
PARAMOUNT’S KINGS ISLAND, et al.,                        )    Southern District of Ohio
                                                         )
          Defendant-Appellees.                           )




Before:          BOGGS, Chief Judge; and GIBBONS and GRIFFIN, Circuit Judges.

          PER CURIAM. Tabatha Manley appeals the dismissal of her § 1983 lawsuit against

Paramount’s Kings Island (PKI) and several of its employees. She argues that PKI violated her

constitutional rights when one of its security guards detained her briefly and later filed a criminal

complaint against her in connection with the theft of another patron’s purse. The sole issue before

us is whether the district court erred in granting PKI’s motion for summary judgment on Manley’s

Fourth Amendment claims.1 We conclude that a reasonable jury could not find that Manley’s Fourth

Amendment rights were violated and therefore affirm the district court’s dismissal.

                                                  I




          1
        Although PKI disputed the district court’s finding that its security guards were state actors
and both parties briefed this issue on appeal, PKI conceded this point during oral argument.
       On October 16, 2004, Leighann Goins visited PKI with a number of friends. Before taking

their seats on a roller coaster, they deposited their personal belongings in the cubicles provided by

PKI. On the same evening, Manley was also visiting PKI. Accompanied by her husband, children,

and several other relatives, she went on the same ride, and she stored a number of items in a

neighboring cubicle. After leaving the ride, Manley retrieved her possessions and headed to a nearby

restroom. Meanwhile, Goins discovered that her purse was missing. A friend of Goins recalled a

similar experience in which stolen personal property was later recovered in the bathroom, so together

they headed to the ladies room. Once there, they called Goins’s cell phone, which had a “distinctive

ring tone,” hoping to locate the purse and its contents. Amazingly, a phone began to ring from one

of the stalls, and two young children also in the bathroom started “looking nervously.” Goins zeroed

in on her ring tone and Manley eventually emerged from that particular stall. A friend noticed that

there was a square bulge in Manley’s sweatshirt, as if she were concealing something.

       Goins and her friend followed Manley and say they saw her go behind a kiosk with a child.

Although their view was obstructed, Goins checked the area after they left and found her purse,

which was empty. She then decided to confront Manley: when Goins asked Manley to return her

phone and other possessions, Manley denied knowing anything about Goins’s belongings and

immediately proceeded with her family toward the exit. By this time, Goins’s friend had enlisted

a PKI security guard to investigate. When the officer shined his flashlight in Manley’s direction, she

and her family immediately fled through the parking lot. When the guard finally caught up with

Manley and asked about the theft, Manley again professed her innocence. Meanwhile, several other

PKI security officers arrived. They questioned her as well, and Manley admits during this

questioning she was never touched, searched, or arrested. She left freely and of her own accord.


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       PKI continued to investigate the matter and obtained written statements from both Goins and

her friend detailing what was taken and recounting the earlier events. More importantly, PKI secured

video footage from the security camera focused on the cubicles where Goins deposited her purse as

she rode the roller coaster. The surveillance video showed Manley pointing to the purse and a

juvenile believed to be her daughter taking the purse and leaving with Manley. The statements from

Goins and her friend, its own security personnel’s observations, and the video footage in hand, PKI

filed a complaint with the local prosecutor, who in turn obtained a warrant for Manley’s arrest.

Although no new evidence emerged between the arrest and a preliminary hearing, an Ohio Municipal

Court dismissed all charges against Manley. The court’s three-sentence entry of judgment states only

that “[b]ased on the evidence and testimony presented the court did not find that the crime described

in the complaint had been committed nor did the court find that the above named defendant

committed it.” JA 216. Manley in turn filed this suit against PKI alleging violation of her

constitutional rights and seeking monetary damages under § 1983.

                                                   II

       Manley alleges that PKI violated her constitutional right against unlawful seizure and that

the district court erred in granting summary judgment to the defendants. Her Fourth Amendment

claims turn on two separate determinations by the district court, which she appeals: (1) PKI’s officer

had reasonable suspicion to stop her in the parking lot in the course of investigating the theft and (2)

PKI had probable cause to believe she committed the crime when its security guards filed the

criminal complaint that led to her arrest and arraignment. To survive a summary judgment motion,

the plaintiff must present affirmative evidence sufficient to support a jury verdict in her favor. “If

the evidence is merely colorable, or is not significantly probative, summary judgment may be


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granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986) (internal citations omitted).

The district court found that Manley had not met this minimal burden.

       We review grants of summary judgment de novo under the standard set forth in Federal Rule

of Civil Procedure 56 and Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). See Radvansky

v. City of Olmstead Falls, 395 F.3d 291, 301 (6th Cir. 2005). Generally, questions about whether

the police had a reasonable suspicion or probable cause are presented to a jury in a § 1983 case, but

they may be determined by the court if “there is only one reasonable determination possible.”

Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000) (quoting Pyles v. Raisor, 60 F.3d 1211,

1215 (6th Cir. 1995)). Thus, we should affirm the district court’s dismissal if a reasonable jury could

not find that the officers violated the Fourth Amendment. Parsons v. City of Pontiac, 533 F.3d 492,

501 (6th Cir. 2008). Viewing the facts as stated above, we must evaluate PKI’s basis for stopping

Manley in the parking lot and later filing a criminal complaint against her.

       A.      The Initial Stop

       Even though PKI personnel never touched Manley, a seizure may nevertheless have taken

place. PKI does not dispute that Manley was detained in the parking lot, perhaps because this court

must examine the facts in a light most favorable to the non-moving party. A seizure occurs when

a person yields to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 626 (1991);

United States v. Martin, 399 F.3d 750, 752 (6th Cir. 2005). Even if the shining of the flashlight did

not constitute a “show of authority,” chasing Manley through the parking lot arguably did. And

Manley acquiesced in stopping in the course of the guard’s pursuit to answer questions.

       The police may conduct a limited investigatory detention of someone, falling short of arrest,

if they reasonably suspect a person committed a crime. Terry v. Ohio, 392 U.S. 1 (1968). A Terry


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stop “is permissible when it is based upon specific and articulable facts which, taken together with

rational inferences from those facts, give rise to a reasonable suspicion that the individual is, was,

or is about to be engaged in criminal activity.” United States v. Hurst, 228 F.3d 751, 757 (6th Cir.

2000). Terry stops are ultimately judged for objective reasonableness under a totality of the

circumstances test. United States v. Wilson, 506 F.3d 488, 492 (6th Cir. 2007).

        PKI had several reasons to suspect Manley. First, there were first-hand accounts given by

Goins and Flick. This case does not involve anonymous tipsters whose statements require additional

corroboration to establish probable cause, see Illinois v. Gates, 462 U.S. 213, 245–46 (1983), but

customers whose identities were known and who offered clear and consistent reports about why they

suspected Manley had stolen the property. Because police would be crippled if they could not make

brief investigatory stops based on statements from citizens, we have previously held that a property

owner’s complaint of theft, in conjunction with an identification of the suspected thief, creates

reasonable suspicion. Gardenhire v. Schubert, 205 F.3d 303, 317 n.5 (6th Cir. 2000). Although

Goins and Flick did not claim to have personally witnessed Manley or her daughter taking the purse,

their statements about the cell phone ringing from the bathroom stall that Manley occupied and

Manley’s leaving the lavatory with an object apparently concealed in her clothing both suggest she

was in possession of the stolen property.

       PKI’s security guards also had a second basis for suspecting Manley: she ran when they

approached her. JA 45. Although the Supreme Court has stopped short of finding that fleeing the

police alone necessarily gives rise to a reasonable suspicion, it has held that “[h]eadlong flight” is

“certainly suggestive” of criminal conduct. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Coupled

with other facts—in this case, the statements of two other patrons—evasive conduct indisputably


                                                -5-
justifies a brief detention. Manley’s flight was “not a mere refusal to cooperate,” and it is

understandable that PKI would want to investigate such a person’s possible involvement. Id. at 125.

       Manley contends that even if the security guard who stopped her had a reasonable suspicion,

the detention exceeded the scope of a Terry stop. That an officer has a reasonable suspicion and did

not place Manley under arrest does not definitively show that the seizure was reasonable under the

Fourth Amendment. Terry, 392 U.S. at 27. Terry permits only a brief seizure, and holding a person

for a protracted period of time or conducting a search of her person (beyond a mere frisk) requires

probable cause even if the suspect is never formally placed under arrest. Id. at 33. Since Manley

does not contend the security guard touched her, the issue she raises is a question only of how long

she was detained.

       There is no per se rule as to how long a stop may last without exceeding the limits of Terry,

United States v. Sharpe, 470 U.S. 675, 686 (1985), but a twenty-minute detention is reasonable when

the police act diligently to investigate the allegations and the detention does not involve unnecessary

delay. Id. at 687. Here, the officer says that the stop took “a few moments.” JA 42. One of the

patrons who implicated Manley in the crime said it lasted only “a few minutes.” JA 38. Manley’s

only evidence that she was held for a longer period of time is that the encounter began around 10:30

p.m. and yet the incident report was drafted at midnight. Br. of Appellant 22 (citing JA 45). Manley

therefore contends the detention “could” have lasted an hour and a half. Ibid. The district court

correctly rejected this view because the fact that the officer did not complete the report until

midnight does not provide any basis for concluding that Manley was held for an hour and a half. JA

271. Furthermore, Manley’s mere suggestion that she could have been held for that long a period

is not the same as asserting she in fact was held for that amount of time. Although in reviewing a


                                                 -6-
grant of summary judgment, we must consider the evidence in a light most favorable to the non-

moving party, we need not overlook evidence against Manley or assume the existence of facts not

even asserted by her. Therefore, even viewing the evidence in a light most favorable to Manley, no

reasonable jury could find the stop, whether a few moments or a few minutes, unreasonable under

the Fourth Amendment.

       B.      The Criminal Complaint And Manley’s Subsequent Arrest

       In filing a criminal complaint with the prosecutor, PKI’s guards did not actually arrest

Manley. To the contrary, Manley was ultimately arrested by police officers pursuant to a valid arrest

warrant obtained by the prosecutor. Although PKI does not argue the point, the intervening

decisions by the prosecutor to press charges and by the magistrate to issue a warrant raise the

question of whether PKI is liable for Manley’s subsequent arrest, even if it was not supported by

probable cause. Neither party raises the issue, however, and it is unnecessary for us to resolve this

question since we ultimately find that probable cause existed as a matter of law.

       Probable cause is a “practical, nontechnical conception” that deals with probabilities, not

certainties and the “factual and practical considerations of everyday life.” Gates, 462 U.S. at

230–31. Police have probable cause to arrest a person when they have “reasonably trustworthy

information that is sufficient to warrant a prudent man in believing that the suspect had committed

or was committing an offense based on the facts and circumstances within the police’s knowledge

at the moment in question.” Peet v. City of Detroit, 502 F.3d 557, 563–64 (6th Cir. 2007)

(quotations omitted). While the police may not ignore known exculpatory evidence in judging

probable cause, they are “under no obligation to give any credence to a suspect’s story” and need not




                                                -7-
halt the investigation just because the suspect gives “a plausible explanation” for her conduct. Criss

v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988).

       In this case, the evidence provides probable cause as a matter of law: the statements by the

victim and her friend implicating Manley in the theft; Manley’s flight in the course of PKI’s

investigation of the theft; and finally, the security video showing Manley pointing to the purse and

a juvenile believed to be her daughter taking the purse and leaving with Manley. Before specifically

addressing each of these elements, it is important to underscore how the case at bar differs from a

“she-said/she-said” case in which officers may not have probable cause. This court has previously

found that an officer cannot arrest a person pursuant to the “bare allegation” of one party. Parsons

v. City of Pontiac, 533 F.3d 492, 500–01 (6th Cir. 2008). At the very least, a court must refrain from

finding as a matter of law that probable cause exists when the arresting officer has not undertaken

any investigation or collected any evidence to corroborate the report of a single person. Rothhaupt

v. Maiden, 144 F. App’x 465, 469–70 (6th Cir. 2005).

       Despite Manley’s effort to portray this case as very similar to Rothhaupt, the facts can be

distinguished on several grounds. First, rather than a single bare allegation, there are detailed

accounts from two people. This court has previously found statements by two separate individuals

can be sufficient to establish probable cause. Williams v. Cambridge Bd. of Educ., 370 F.3d 630,

637-38 (6th Cir. 2004) (relying primarily on statements from two students to find probable cause to

detain other students suspected of plotting a school shooting). In this case, the two witnesses are

particularly credible, because their oral and written accounts are detailed and remained consistent

over time and corroborated one another. See JA 37–40, 48–49; Williams, 370 F.3d at 637 (noting

that the “three girls all conveyed the same essential information to [the police], and their written


                                                -8-
statements matched their oral statements”). Although such reports may on their own support

probable cause, there is still other undisputed evidence before the court, such as the fact Manley ran

when confronted by a PKI officer investigating the theft. Wardlow, 528 U.S. at 124.

       The most critical evidence, however, is the security video PKI obtained after briefly

questioning Manley in the parking lot and letting her leave. Before filing a criminal complaint, a

PKI officer watched video footage that showed Manley pointing toward the purse and showed a

“juvenile” in her party, believed to be Manley’s daughter, picking up the purse and leaving with

Manley. JA 42, 50. The officer’s own observation of the tape strongly supports the finding of

probable cause, and the tape further corroborated the account of the victim’s friend, who described

seeing “nervous” children in the bathroom when the cell phone began to ring. Manley emphasizes

that the video does not show her taking the purse, but this does not alter our analysis both because

of the other evidence in the case and because Manley does not dispute the fact that the purse was

stolen by a “juvenile” who then left with her. Looking at the record in the light most favorable to

Manley does not bar this court from considering evidence suggestive of her guilt, and the video

provides weighty support for finding probable cause.

       The district court’s finding that probable cause was present—indeed, that a reasonable jury

could not conclude to the contrary—is complicated by the state court’s dismissal of the complaint

against Manley. Manley contends that the district court was estopped from finding probable cause,

because a state court dismissed the complaint against her. In the alternative, the state court’s

decision could be read as highly persuasive evidence that a reasonable jury could find probable cause

lacking, and therefore that summary judgment was not appropriate. The state court’s dismissal is

curious in light of the significant evidence against Manley, and the Ohio court’s terse opinion does


                                                -9-
not explain either the reasons for its decision or the standard under which the decision was reached.

JA 216. However, under Ohio law, the standard for a preliminary hearing is “probable cause.” If

the judge finds probable cause to believe that the defendant committed a crime, the defendant is

bound over to the Ohio Court of Common Pleas for trial; if the judge does not find probable cause,

the defendant is released. Ohio R. Crim. P. 5(B)(4); see also State v. Miller, 772 N.E.2d 175, 180

(Ohio App. 2002) (“[A] preliminary hearing has but one purpose, to determine whether there is

probable cause to believe a crime has been committed by the accused.”).

       Judges can and do disagree over whether evidence compels the conclusion that the

defendants in a § 1983 case had probable cause. Moreover, the law is clear: an arrest grounded in

probable cause does not become invalid simply because the charges are later dropped or the

defendant is acquitted. Williams v. Cambridge Bd. of Educ., 370 F.3d 630, 638 (6th Cir. 2004).

Since res judicata would have barred Manley’s § 1983 suit had the state judge found probable cause

existed, Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir. 1998) (citing Coogan v. City of Wixom,

820 F.2d 170, 175 (6th Cir. 1987), some plaintiffs in § 1983 cases will assume a double standard is

being applied. However, this rule makes sense since an arrest may be grounded on probable cause

even if charges are later dropped or the defendant is acquitted. Williams v. Cambridge Bd. of Educ.,

370 F.3d 630, 638 (6th Cir. 2004).

       Our court has independently evaluated the existence of probable cause in at least two § 1983

cases where the plaintiff brought Fourth Amendment claims after a state court dismissed the charges

at a preliminary hearing. Voyticky v. Village of Timberlake, 412 F.3d 669, 673–74 (6th Cir. 2005);

Jacobs v. Village of Ottawa Hills, 5 F. App’x 390, 391, 394 (6th Cir. 2001) (affirming the district

court’s denial of qualified immunity for an officer who did not have sufficient justification for a


                                               - 10 -
Terry seizure). In Voyticky, a police officer was accused of mishandling city funds. An Ohio

magistrate judge found probable cause to issue an arrest warrant, but after the arrest was made,

another Ohio judge dismissed the charges for lack of probable cause. The officer sued the city for

violating his Fourth Amendment rights. We affirmed a grant of summary judgment to the city,

holding that the arrest was supported by probable cause, and that an arrest supported by a facially

valid warrant is a complete defense to the plaintiff’s claims under both federal law and Ohio law.

Id. at 675–76. Both in Voyticky and the case at bar, the defendant was arrested pursuant to a valid

warrant, but the charges were dismissed for lack of probable cause. The panel did not discuss the

relevance of the state court’s dismissal, but in granting summary judgment, Voyticky held that a state

court’s dismissal does not bind a federal court in a later § 1983 action.

       Other federal courts have reached the same conclusion as the Sixth Circuit: even when a

state court dismissed a charge for lack of probable cause to prosecute, a federal court in a subsequent

§ 1983 action for Fourth Amendment violations should not entertain a § 1983 suit if it finds no

genuine issue of material fact as to probable cause to arrest. Rodriguez-Mateo v. Fuentes-Agostini,

66 F. App’x 212, 213 (1st Cir. 2003); Cameron v. Payne, No. 93-6528, 1994 WL 144260, at *3 (4th

Cir. Apr. 25, 1994) (concluding that despite the state court’s dismissal for lack of probable cause,

Officer Payne was entitled to qualified immunity because he could have reasonably believed

probable cause existed); Williams v. Kobel, 789 F.2d 463, 468-69 (7th Cir. 1986) (noting the

question of probable cause to arrest and probable cause to bind over for trial at a preliminary hearing

are distinct); Shea v. Muensterman, 2 F. App’x 528, 529 (7th Cir. 2001) (affirming the dismissal of

a § 1983 suit because probable cause for plaintiff’s arrest “clearly existed” despite the state judge’s




                                                - 11 -
contrary finding and dismissal of charges). Therefore, despite the state court’s dismissal of the

charges against Manley, the district court’s grant of summary judgment was correct.

                                               III

       Reviewing the evidence in a light most favorable to plaintiff, PKI security guards had a

reasonable suspicion of Manley when detaining her in the parking lot and probable cause when PKI

filed a criminal complaint leading to her arrest. The judgment of the district court is AFFIRMED.




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