                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0057n.06

                                       Case No. 17-1096

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Jan 31, 2018
MARVIN SEALES,                                    )                     DEBORAH S. HUNT, Clerk
                                                  )
        Plaintiff-Appellee,                       )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE EASTERN DISTRICT OF
CITY OF DETROIT, MICH., et al.,                   )       MICHIGAN
                                                  )
        Defendants,                               )
                                                  )
DETROIT POLICE OFFICER THOMAS                     )
ZBERKOT                                           )
                                                  )
        Defendant-Appellant.                      )


        BEFORE: CLAY, GIBBONS, and COOK, Circuit Judges.

        CLAY, Circuit Judge.     Defendant-Appellant Detroit Police Officer Thomas Zberkot

(“Zberkot”) appeals from the judgment entered by the district court denying in part his motion

for summary judgment. For the reasons set forth below, we AFFIRM the judgment of the

district court.

                                      BACKGROUND

I.      Factual History

        Thomas Zberkot is a police officer for the City of Detroit Police Department who was on

assignment to the Detroit Fugitive Apprehension Team (“DFAT”).          On January 18, 2012,
Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


Zberkot and other members of DFAT were assigned to execute an arrest warrant for Rodrick

Siner (“Siner”) for charges including assault with intent to commit murder. Apparently, Siner

used a number of aliases, including “Marvin Seals.”

       Marvin Seales was working as a technician at the Reinhart Food Service facility. The

team, including Zberkot, arrested Seales during his shift at the facility. Seales was taken to the

Detroit Police Department Northeastern District for processing.       Zberkot processed Seales.

Seales told Zberkot on several occasions that he was not Siner and they had the wrong

individual.

       Seales was transferred to the Wayne County Jail. He was incarcerated from January 18,

2012 until February 1, 2012. On February 1, during his preliminary examination, the victim in

Siner’s case saw Seales and told the prosecutor he was the wrong person. The prosecutor moved

to dismiss based on insufficient evidence. The judge signed an Order of Dismissal detailing that

Seales was not the correct defendant and that he was “wrongly arrested and detained from

1/18/12–2/1/12.” (R. 70-13, Order of Dismissal, PageID # 456.)

II.    Procedural History

       On April 9, 2013, Seales filed an Amended Complaint against the City of Detroit,

Zberkot, and Wayne County. Seales brought six counts against Defendants including: (I) a

§ 1983 claim for false detention, arrest, imprisonment, and confinement against the City of

Detroit; (II) a false/wrongful arrest and false imprisonment claim against all Defendants; (III) a

willful and wanton misconduct, deliberate indifference/gross negligence claim against all

Defendants; (IV) an intentional infliction of emotional distress claim against all Defendants;

(V) a § 1983 claim for deprivation of rights under the First, Fourth, Fifth, and Fourteenth




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


Amendments to the US Constitution and Article I, §§ 5, 6, 11 and 17 under the Michigan

Constitution against Zberkot; and, (VI) a Monell claim against the City of Detroit.

       On July 23, 2013, Defendants filed a Notice of Suggestion of Pendency of Bankruptcy

Case and Application of the Automatic Stay after the City of Detroit (“the City”) filed for

bankruptcy. On July 29, 2013, the district court entered an Order administratively closing the

case without prejudice. The Order provided that the case may be reopened upon motion should

the City emerge from bankruptcy. On October 6, 2015, Seales filed a Motion to Set Aside

Bankruptcy Stay and Reopen Case after the City emerged from Bankruptcy Court protection.

On November 17, 2015, the district court granted Plaintiff’s motion.

       On September 9, 2016, Defendants City of Detroit and Zberkot filed a Motion for Partial

Summary Judgment. On September 14, 2016, Defendants filed an Amended Motion for Partial

Summary Judgment. Wayne County was dismissed from the case after several counts were

dismissed by stipulation, and the remaining count was dismissed on summary judgment.

       On January 3, 2017, the district court issued its Opinion and Order granting in part and

denying in part Defendants City of Detroit and Zberkot’s Amended Motion for Partial Summary

Judgment. The district court granted summary judgment as to Counts I, II, III, IV, and VI

against the City, and dismissed all claims against the City. The court granted summary judgment

as to Count IV (intentional infliction of emotional distress) for Zberkot, but denied summary

judgment as to Counts II (false/wrongful arrest and false imprisonment), III (gross negligence),

and V (Section 1983) against Zberkot. The district court found that Zberkot was not entitled to

qualified immunity on the § 1983 claim, that he was not entitled to immunity under Michigan

law for the gross negligence claim, and that because he did not argue he should be shielded by

immunity, he was not entitled to immunity on the false arrest and false imprisonment claim.


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


       On January 27, 2017, Zberkot timely filed his notice of appeal. Zberkot argues that he is

entitled to qualified immunity because he did not “violate clearly established rights guaranteed

by the U.S. Constitution.” (Zberkot Br. at 4.) He also argues that he is immune from liability

under Michigan law for the claims of gross negligence and false arrest and false imprisonment.

Therefore, he argues he is entitled to summary judgment as a matter of law.

                                          DISCUSSION

I.     QUALIFIED IMMUNITY

                                       Standard of Review

       This Court reviews a district court’s denial of summary judgment on qualified immunity

grounds de novo. Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008) (citing Monette v.

Electronic Data Sys. Corp., 90 F.3d 1173, 1176 (6th Cir. 1996)). Summary judgment is proper

“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

burden of showing that no genuine issues of material fact exist. Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986). The moving party must demonstrate the “basis for its motion, and

identify[] those portions of the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes demonstrate the absence of a

genuine issue of material fact.” Id. at 323 (internal citations and quotation marks omitted). The

nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal citations and quotation

marks omitted). The reviewing court must then determine “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Id. at 251–52. A court should view the facts and draw all


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

                                              Analysis

         Under the doctrine of qualified immunity, “government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as 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).          To determine whether

government officials are entitled to qualified immunity, we ask two questions: “First, taken in the

light most favorable to the party asserting the injury, do the facts alleged show that the officer’s

conduct violated a constitutional right? Second, is the right clearly established?” Silberstein v.

City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)). Courts may address these two prongs in whichever order they choose. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). Plaintiff bears the burden of showing that defendants are

not entitled to qualified immunity. Chappell v. City Of Cleveland, 585 F.3d 901, 907 (6th Cir.

2009).

         On appeal, Zberkot argues that his actions did not constitute a constitutional violation or

violate clearly established law. He argues that based on the warrant and the DFAT investigation,

“at the time it was reasonable to conclude that Plaintiff was the person identified in the warrant”

and that Zberkot’s arrest “was not an unreasonable seizure rising to the level of a civil rights

violation.” (Zberkot Br. at 11.) Zberkot argues that based on this “particular set of facts,”

“Zberkot did not violate clearly established law.” (Id.)




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


       There are two potential constitutional violations involved in this case: first, mistakenly

arresting Seales instead of Siner when executing the arrest warrant for Siner and, second,

mistakenly detaining Seales for fourteen days after the arrest.

       A.      Mistaken Arrest

       We first consider whether Zberkot violated a clearly established constitutional right by

mistakenly arresting Seales, when the person actually named in the warrant was Siner. “Arrest

warrants in the hands of a police officer, unless facially invalid, are presumed valid.” Fettes v.

Hendershot, 375 F. App’x. 528, 532 (6th Cir. 2010). “[P]olice and correction employees may

rely on facially valid arrest warrants even in the face of vehement claims of innocence by reason

of mistaken identity or otherwise.” Masters v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989)

(citing Baker v. McCollan, 443 U.S. 137, 145 (1979)); Baker, 443 U.S. at 145–46 (“[W]e do not

think a sheriff executing an arrest warrant is required by the Constitution to investigate

independently every claim of innocence[.]”). Here, Seales does not challenge the facial validity

of the warrant. He does, however, argue that the officers unreasonably mistook Seales for Siner

and their unreasonable mistake violates the Fourth Amendment.

       “[W]hen the police have probable cause to arrest one party, and when they reasonably

mistake a second party for the first party, then the arrest of the second party is a valid arrest.”

Hill v. California, 401 U.S. 797, 802 (1971) (internal citations and quotation marks omitted); see

also Fettes, 375 F. App’x at 532 (“The Supreme Court has held that if, in executing a

presumptively valid arrest warrant, the police reasonably mistake a second person as being the

individual named in the warrant and arrest him, the arrest of the second person does not offend

the Constitution.”); Ingram v. City of Columbus, 185 F.3d 579, 595 (6th Cir. 1999) (“Where the




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


police have probable cause to arrest one party but reasonably mistake a second party for the first,

their arrest of the second party is valid.” (citing Hill, 401 U.S. at 801)).

        In Hill, the police had probable cause to arrest Hill, the man named in the warrant, but

mistakenly arrested a man with a completely different name—Miller. 401 U.S. at 802–03.

Miller told the officers he was Miller, not Hill, but the officers arrested him anyway. Id. at 803.

The Court found the mistake was reasonable because Miller generally matched Hill’s

description, was in Hill’s home, answered Hill’s door, and did not seem credible to police. Id.

803–04. That Miller produced identification did not make the arrest unreasonable because

“aliases and false identifications are not uncommon.” Id. at 803. The Court observed that

“sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth

Amendment and on the record before [the Court] the officers’ mistake was understandable and

the arrest a reasonable response to the situation facing them at the time.” Id. at 804.

        In Fettes, an arrest warrant was intended for Robert Fettes, Jr., and was issued for

“Robert Fettes.” 375 F. App’x at 532. Robert Fettes, Sr. was arrested by mistake. Id. Fettes,

Sr. protested to the police that the warrant was not for him, but he was held for about two hours

before he was released. Id. Fettes argued that the officer should have done a better job verifying

that the warrant was intended for Fettes, Jr. and not Fettes, Sr. Id. The Court found no

constitutional violation. Id. at 532–33. By contrast, in Ingram, the Court found that a genuine

issue of fact existed as to whether the officer’s mistake was a reasonable one. 185 F.3d at 596.

There, officers chased a man who tried to sell drugs to an undercover officer. Id. at 584. The

suspect ran into someone else’s house and hid under a bed. Id. Officers followed him into the

house and arrested another man they found sleeping in the basement. Id. at 585. The Court

found that there was a question of fact as to whether the officer’s mistake was a reasonable one


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


because the plaintiff was found napping in his basement and “could not have been the same man

who attempted to sell drugs to [an officer] and then outran several officers who were in ‘hot

pursuit’” and because the plaintiff did not look like the man the officers had been chasing. Id. at

596.

       Courts from outside of this circuit similarly look to the totality of the circumstances

surrounding the arrest to determine its reasonableness. See Tibbs v. City of Chicago, 469 F.3d

661, 664–65 (7th Cir. 2006) (finding the officer did not act unreasonably when he mistakenly

arrested someone with the same first and last name, race, and sex, but different middle initial as

the person listed in the warrant); Rodriguez v. Farrell, 280 F.3d 1341, 1347 (11th Cir. 2002)

(finding a mistaken arrest reasonable where police arrested a man with the same name as the

alias of another man listed in an arrest warrant and where the two also were the same sex, age,

and race, were born in neighboring towns in the same state, even though the two had a five inch

difference in height); Hill v. Scott, 349 F.3d 1068, 1073 (8th Cir. 2003) (finding it not an

unreasonable mistake when officers arrested a man with a similar name because they had

“remarkably similar descriptions”); Patton v. Przybylski, 822 F.2d 697, 699–700 (7th Cir. 1987)

(finding no unreasonable mistake where police arrested a man with the same name and of the

same race as the man listed in the arrest warrant, even though he had a driver’s license from a

different state that listed a different address and birthdate from that listed in the arrest warrant);

Brown v. Patterson, 823 F.2d 167, 169 (7th Cir. 1987) (finding the police officer did not act

unreasonably when he mistakenly arrested someone whose name matched the suspect’s alias and

who had a similar birthday, was of the same race and sex, and lived in a similar geographic area);

Blackwell v. Barton, 34 F.3d 298, 303–04 (5th Cir. 1994) (finding a mistaken arrest reasonable




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


because she was “of the same height and weight, sex, race, age, nickname, and at the location

where he expected to find [her],” even though the two had different last names).

        Turning to the specific facts of this case, on January 18, 2012, Zberkot was on

assignment to DFAT. There was an outstanding arrest warrant for Rodrick Siner, who used the

alias Marvin Seals. The warrant had been assigned to another Task Force officer. DFAT needed

another officer to help apprehend Siner and so Zberkot assisted the apprehension at the location

that had been developed.1 The team went to the location developed for Siner and they executed

the arrest warrant. Zberkot and the other members of DFAT “made contact with wanted subject”

and arrested Seales at his place of work. (R. 80-4, Arrest Report, PageID # 658; R. 28, Amended

Complaint, PageID # 123.) The officers told Seales that there was a warrant out for his arrest.

Seales said that he was not Siner and they had the wrong individual. Seales was then transported

to the police station and released to Zberkot for processing.

        Even though Seales argues that Zberkot’s mistake was unreasonable as Seales was

arrested “for no other reason other than the similarity of his name to that of Siner’s alias, ‘Marvin

Seals,’” (Seales Br. at 13, 17), Seales’ identifying information was similar to Siner’s in a number

of respects. Seales had essentially the same name as Siner’s alias,2 was the same sex, same race,

and the same age as Siner, and was working in the same geographic location in which Siner

resided. Additionally, DFAT had previously developed the address for where the team could

find Siner, and Zberkot found Seales at that address. Finally, because Zberkot believed he was

arresting a man who used an alias, Zberkot would have expected Seales to lie about his name.

Consequently, it was not unreasonable for Zberkot to mistakenly believe he was arresting Siner

        1
            There is no evidence in the record providing how this location was developed or who developed it.
        2
           The alias “Marvin Seals” is one-letter off from the name “Marvin Seales.” This minor difference in
spelling does not make Zberkot’s mistake unreasonable in light of all the other circumstances.


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


when in fact he was arresting Seales. Thus, Seales has not established that Zberkot unreasonably

mistook Seales for Siner and in doing so violated Seales’ constitutional rights.

       B.      Continued Detention

       We next consider whether Zberkot violated a clearly established right based on Seales’

continued detention. This constitutional violation is “based on his continued incarceration even

after Defendant Zberkot and Detroit employees should have known he was not the person named

in the warrant.” (R. 83, Opinion, PageID # 689.)

               i.      Violation of a Constitutional Right

       In Baker, the Supreme Court found that “one . . . could not be detained indefinitely in the

face of repeated protests of innocence even though the warrant under which he was arrested and

detained met the standards of the Fourth Amendment.” 443 U.S. at 144. “[D]epending on what

procedures the State affords defendants following arrest and prior to actual trial, 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 deprive the accused of ‘liberty . . . without due process of law.’” Id. at

145. Nonetheless, in Baker, the Supreme Court held that a detention for three days, from

December 30, 1972 to January 2, 1973, was not a constitutional violation, despite the plaintiff’s

repeated protests of mistaken identity. Id. at 144–45.

       While the Supreme Court has not since elaborated on Baker or the circumstances in

which this kind of detention would implicate constitutional due process rights, the Sixth Circuit

has. This Court held that “someone who is wrongly imprisoned as a result of mistaken identity

can state a constitutional claim against his jailers based on their failure to ascertain that they had

the wrong man.” Gray v. Cuyahoga Cty. Sheriff’s Dep’t, 150 F.3d 579, 582 (6th Cir. 1998). To

determine whether a constitutional violation has occurred, the “principal question” is whether the


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


officers “acted with something akin to deliberate indifference in failing to ascertain that the

[person] they had in custody was not the person wanted . . . on the outstanding . . . warrant.” Id.

at 583. In answering this question, this Court has considered the following factors: (1) the length

of time an individual was detained; (2) whether the individual protested his innocence; and,

(3) whether any exculpatory evidence was available to officers at the time of arrest or detention.

See id. at 582–83.

       For example, in Gray, the Court found a genuine issue of material fact as to whether

Gray’s mistaken identity detention violated his constitutional rights, where he was imprisoned

for forty-one days and where the defendant officers were in possession of a photograph of the

suspect that “bore virtually no resemblance to Gray” and a physical description that did not

match Gray. Id. The Court also noted that there was no evidence that the officers “conducted a

reasonable inquiry into the discrepancy between the photograph and the real Gray.” Id. at 583.

       On the other hand, in Flemister v. City of Detroit, the Court found that a detention of

four-and-a-half days was an insufficient period of time to amount to a constitutional violation,

even though the plaintiff repeatedly protested his innocence and both photographs and

fingerprints were available that would have cleared up the mistake. 358 F. App’x 616, 620 (6th

Cir. 2009). Finally, in Thurmond v. County of Wayne, the Court found that a detention of thirty-

five days did not violate the plaintiff’s constitutional rights, where the plaintiff never protested

his innocence and the deputies were not in possession of any potentially exculpatory evidence.

447 F. App’x 643, 649 (6th Cir. 2011).

       From these cases, it is clear that officers act with “something akin to deliberate

indifference” when they fail to verify the identity of the person they have in custody, despite

knowledge or notice that the person in custody is not the one listed in the arrest warrant.


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


Protestations of innocence or misidentification and the availability and accessibility of

exculpatory evidence are relevant considerations for deciding whether officers have notice that

they need to conduct some sort of inquiry. The duration of confinement matters insofar as it

allows officers opportunities for a reasonable inquiry.

       Other circuits have likewise recognized this constitutional right to be free from continued

detention after officers know or have notice that that the person in custody is not the one listed in

the arrest warrant. See Garcia v. Cty. of Riverside, 817 F.3d 635, 641 (9th Cir. 2016) (“No

person deserves to be incarcerated without good reason, and incarceration on a warrant without a

reasonable investigation of identity, when the circumstances demand it, is subject to review

under the Due Process Clause. The issue is whether LASD’s treatment of Plaintiff’s contention

that he was not the warrant subject was so superficial, under the circumstances, that it ignored a

duty to investigate and offended due process.”); Russo v. City of Bridgeport, 479 F.3d 196, 208

(2d Cir. 2007) (“[W]e hold that the right mentioned in Baker . . . protected [the plaintiff] from a

sustained detention stemming directly from the law enforcement officials’ refusal to investigate

available exculpatory evidence.”); Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002)

(“[Plaintiff] had a liberty interest in being free from a twelve-day incarceration without any

procedural safeguard in place to verify the warrant he was detained on was his and in the face of

his repeated protests of innocence. In light of the importance of [plaintiff’s] liberty interest, the

significant risk of deprivation of that interest through the City’s warrant procedures, and the

minimum burden to the City of instituting readily available procedures for decreasing the risk of

erroneous detention, the procedures afforded by the City to [plaintiff] failed to provide him due

process under the Fourteenth Amendment”); Lee v. City of Los Angeles, 250 F.3d 668, 683–84

(9th Cir. 2001) (finding that plaintiff’s allegations were sufficient to establish that defendant


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


officers violated plaintiff’s “liberty interest in being free from incarceration” by “recklessly and

with deliberate indifferent to [the plaintiff’s] right to due process . . . fail[ing] to take any steps to

identify him before arresting him . . . and causing his incarceration for two years”); Cannon v.

Macon Cty., 1 F.3d 1558, 1563 (11th Cir. 1993)3 (recognizing a “constitutional right to be free

from continued detention after it was or should have been known that the detainee was entitled to

release”).

        In light of the case law, the question is whether the evidence, when viewed in the light

most favorable to Seales, creates a genuine issue of material fact as to whether Zberkot “acted

with something akin to deliberate indifference” in failing to ascertain that Seales was not the

person identified in the warrant, where Seales was imprisoned for fourteen days, where officers

were in possession of exculpatory evidence, and where Seales repeatedly protested his

misidentification. We hold that it does.

        Seales has alleged that he protested his innocence to Zberkot and his fellow deputies

numerous times. This allegation finds some support in the record. See Bays v. Montmorency

Cty., 874 F.3d 264, 268 (6th Cir. 2017) (“In [making the qualified immunity determination], we

assume the truth of all record-supported allegations by the non-movant.” (citing Plumhoff v.

Rickard, 134 S. Ct. 2012, 2017 (2014))). For example, Wayne County was asked whether Seales

told “anyone in the Wayne County Jail that he was not Rodrick Siner and/or Marvin Seals or he

was not the person for which there were an outstanding warrant by the DFAT[.]” (R. 75-7,

Answer to Interrogatories, PageID # 575.) Wayne County responded that “Plaintiff filed a

grievance on January 24, 2012,” six days after his arrest, and attached a grievance log in which

        3
          Cannon also cited to Sivard v. Pulaski County, 959 F.2d 662 (7th Cir.1992) for the proposition that
“continued detention where sheriff knew it was wrongful states claim under § 1983 for due process violation” and to
Sanders v. English, 950 F.2d 1152 (5th Cir. 1992) for the proposition that “failure to release after officer knew or
should have known that plaintiff had been misidentified gives rise to cause of action under § 1983.” 1 F.3d at 1563.


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


the reason for the grievance is listed as “Wrong b[oo]king name.” (Id. at # 575, 579.) Wayne

County did not produce the actual grievance because “despite a diligent search, [it] was unable to

locate the original grievance.” (Id. at # 575.) Seales’ deposition transcript also supports his

allegation that he protested his misidentification. He said “I kept telling everyone I’m not

Roderick Siner. . . . It’s not me.”4 (R. 70-3, Seales Depo., PageID # 379, 24:24–25:9). In sum,

there is evidence indicating that Seales protested his innocence multiple times and claimed he

had been misidentified.

         Next, the record shows that significant exculpatory evidence existed and it was in the

possession of police. Seales alleges that at the time of his arrest and incarceration, a mug shot

and “further identification” of Siner were available to officers. (R. 28, Amended Complaint,

PageID # 125.) The photos show two men who look nothing alike. There is also some evidence

that recorded fingerprints for Siner were available to the officers. Finally, officers would have

possessed the information contained in Siner’s arrest warrant. For example, the Detroit Police

Department Arrest Report includes Siner’s age, date of birth, height, weight, and home address.

Though it does not appear we have evidence of Seales’ height or weight, we know that Seales

was born on a different date and presumably lived at a different address.

         Although there is record evidence that Seales continuously protested the misidentification

and that exculpatory evidence was readily available, there is no evidence that the officers made

any attempt to verify Seales’ identity. For instance, nothing suggests that officers checked


         4
            We note that only a portion of Seales’ deposition transcript made it into the record. The final question on
the pages provided—“when you were first taken, arrested and taken to the precinct, did you ask the arresting officers
why you were there, have any . . .”—also likely elicited testimony from Seales about protesting his innocence during
his arrest and initial detainment. (R. 70-3, Seales Depo., PageID # 383, 41:23–25.) Additionally, Seales’ counsel
represented at oral argument that Seales testified that he protested his misidentification to Zberkot and other officers
during his arrest on other missing pages of the deposition transcript. Unfortunately, those pages are not in the
record.


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


Seales’ fingerprints, photographs, or biographical information against the information that they

had on Siner. It appears that the officers failed to confirm Seales’ identity, even though simple

identification procedures would have revealed the mistake.

       In all, we think these facts taken together would permit a reasonable trier of fact to find

that Seales’ constitutional rights were violated.

               ii.     Clearly Established

       The next step in the qualified immunity analysis is to decide whether the right was clearly

established. We hold that it was.

       “The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202. For a right to be clearly established, “[t]he contours of

the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right. This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful, but it is to say

that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton,

483 U.S. 635, 640 (1987) (citations omitted). An official “can still be on notice that [his]

conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.

730, 741 (2002). To determine whether a constitutional right is clearly established, we “look [ ]

first to decisions of the Supreme Court, then to decisions of this court and other courts within our

circuit, and finally to decisions of other circuits.” Bell v. Johnson, 308 F.3d 594, 602 (6th Cir.

2002) (quoting Chappel v. Montgomery Fire Prot. Dist. No. 1, 131 F.3d 564, 579 (6th Cir.

1997)). Further, “an action’s unlawfulness can be apparent from direct holdings, from specific




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


examples described as prohibited, or from the general reasoning that a court employs.” Feathers

v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (citing Hope, 536 U.S. at 730).

       The Supreme Court long ago recognized that after a certain amount of time, continued

detention in the face of repeated protests deprives the accused of liberty without due process.

Baker, 443 U.S. at 145.      Since then, this Court has laid out the “principal question” for

determining whether a constitutional violation has occurred—have the defendants “acted with

something akin to deliberate indifference in failing to ascertain that the [person] they had in

custody was not the person wanted by the Michigan authorities on the outstanding . . .

warrant[?]” Gray, 150 F.3d at 583. The Court has also set forth three factors courts should

examine to determine whether a detention violates due process—(1) the length of time an

individual is detained, (2) whether the detainee protested his or her innocence, and (3) whether

potentially exculpatory evidence was available to officers at the time of arrest and detention. See

Gray, 150 F.3d at 582–83; Thurmond, 447 F. App’x at 649; Flemister, 358 F. App’x at 620.

       On top of clearly laying out the standards for determining whether a constitutional

violation has occurred, some courts in this circuit have addressed time periods similar to those in

this case. For example, Gray expressly relied on the findings of two district courts, which held,

following Baker, that two imprisonments lasting thirty days and twelve days constituted

constitutional violations. 150 F.3d at 582. Additionally, in Cleveland v. City of Detroit, the

court denied summary judgment to officer defendants after the plaintiff “spen[t] two weeks in

jail,” when there was evidence in the record that the officers were aware of the plaintiff’s

mistaken identity claim and the officers “had the ability to resolve it with the information then

available to them.” 275 F. Supp. 2d 832, 838, 840 (E.D. Mich. 2003).




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


       Several other circuits to have expounded on this issue have held that similar conduct

constitutes a violation of a clearly established right. See Russo v. City of Bridgeport, 479 F.3d

196, 208, 211 (2d Cir. 2007) (finding that the plaintiff had a clearly established right, which

protected him “from a sustained detention stemming directly from the law enforcement officials’

refusal to investigate available exculpatory evidence”); Fairley v. Luman, 281 F.3d 913, 918 (9th

Cir. 2002) (finding that the plaintiff “had a liberty interest in being free from a twelve-day

incarceration without any procedural safeguard in place to verify the warrant he was detained on

was his and in the face of his repeated protests of innocence”); Cannon v. Macon Cty., 1 F.3d

1558, 1561, 1563–64 (11th Cir. 1993) (finding that a jury could find the officer acted with

deliberate indifference to the plaintiff’s clearly established due process right where she was

detained for seven days and the officer did not attempt to verify that she was the person wanted

and exculpatory information existed).

       In light of these cases, we find Seales had a clearly established constitutional right to be

free from continued detention after officers should have known that he was not the person named

in the warrant. Accordingly, we find the district court correctly determined that Zberkot was not

entitled to qualified immunity. It is for the trier of fact to decide whether Zberkot violated

Seales’ constitutional rights.

II.    Immunity under Michigan Law

                                        Standard of Review

       “[T]his Court reviews a district court’s denial of summary judgment de novo.” Harrison,

539 F.3d at 516 (citing Monette, 90 F.3d at 1176). Summary judgment is proper “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).


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


                                             Analysis

        “An employee of a governmental agency acting within the scope of his or her authority

is immune from tort liability unless the employee’s conduct amounts to gross negligence that is

the proximate cause of the injury.” Kendricks v. Rehfield, 716 N.W.2d 623, 625 (Mich. Ct. App.

2006) (citing MICH. COMP. LAWS § 691.1407(2)). Gross negligence is “conduct so reckless as to

demonstrate a substantial lack of concern for whether an injury results.” MICH. COMP. LAWS §

691.1407(8)(a).

       Under Michigan law, courts look to whether:

       (a) the individual was acting or reasonably believed that he was acting within the
       scope of his authority,
       (b) the governmental agency was engaged in the exercise or discharge of a
       governmental function, and
       (c) the individual's conduct amounted to gross negligence that was the proximate
       cause of the injury or damage.

Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008). The dispute in the instant case is over

the third prong—whether Zberkot’s conduct was grossly negligent. “[Gross negligence] has

been characterized as a willful disregard of safety measures and a singular disregard for

substantial risks.” Oliver v. Smith, 810 N.W.2d 57, 62 (Mich. Ct. App. 2010) (citing Tarlea v.

Crabtree, 687 N.W.2d 333, 339 (Mich. Ct. App. 2004)). “It is as though, if an objective

observer watched the actor, he could conclude, reasonably, that the actor simply did not care

about the safety or welfare of those in his charge.” Tarlea, 687 N.W.2d at 339–40.

       “[T]he burden is upon a plaintiff to plead facts in avoidance of immunity.” Michonski v.

City of Detroit, 413 N.W.2d 438, 441 (Mich. Ct. App. 1987) (citing Furness v. Public Service

Comm., 299 N.W.2d 35 (Mich. Ct. App. 1980)). “Summary disposition is precluded where

reasonable jurors honestly could have reached different conclusions with respect to whether a


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


defendant’s conduct amounted to gross negligence.”           Stanton v. City of Battle Creek, 603

N.W.2d 285, 289 (Mich. Ct. App. 1999), aff'd, 647 N.W.2d 508 (Mich. 2002). On the other

hand, if “on the basis of the evidence presented, reasonable jurors could not differ with respect to

whether a defendant was grossly negligent, summary disposition should be granted.” Id.

        The district court concluded that “it is not appropriate to grant Defendant Zberkot

immunity at the summary judgment stage, when reasonable jurors could find that Zberkot’s

conduct amounted to gross negligence.” (R. 83, Opinion, PageID # 703.) Zberkot argues that

the district court erred because “there is no evidence that the actions of Defendant Zberkot were

so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

(Zberkot Br. at 13.) Zberkot appears to argue that this is because the warrant and “information

supplied by DFAT” demonstrated that “Plaintiff was the proper person to be arrested.” (Id.)

        In coming to its conclusion, the district court relied on Kendricks. In Kendricks, the

plaintiff was incarcerated for seven months, despite protestations of innocence claiming that his

twin brother was the person they sought and the existence of exculpatory photographic and

fingerprint evidence. 716 N.W.2d at 682–83. The Michigan court found that “reasonable jurors

could reach the conclusion that defendants were grossly negligent” and so “[t]he question of

whether the officers’ conduct demonstrated a sufficient lack of concern to constitute gross

negligence is a question for a trier of fact.” Id. at 683.

        Zberkot distinguishes this case from Kendricks. He notes that the opinion admits that

“[w]e agree that the mistake was reasonable at the point of arrest, and might be inclined to agree

that a delay of a day or even several days before investigating plaintiff’s claim of mistaken

identity could have been reasonable under these circumstances.” Kendricks, 716 N.W.2d at 682.




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


The court said, however, “we cannot agree that holding plaintiff without investigating the claim

for seven months was even remotely reasonable.” Id. (emphasis in original).

        Even with this distinction in mind, we find that there is still “sufficient indicia of gross

negligence to create a genuine issue of material fact.” Id. Because of Zberkot’s alleged role in

denying Seales his constitutional right, as discussed above, we believe that reasonable jurors

could reach the conclusion that Zberkot was grossly negligent. Consequently, Zberkot is not

entitled to governmental immunity and the district court correctly denied Zberkot’s motion for

summary judgment on this claim.

III.   FALSE ARREST AND FALSE IMPRISONMENT CLAIM

       “This court does not normally address issues raised for the first time on appeal.” Elkins

v. Richardson-Merrell, Inc., 8 F.3d 1068, 1072 (6th Cir. 1993) (citations omitted).

       Propounding new arguments on appeal in attempting to prompt us to reverse the
       trial court—arguments never considered by the trial court—is not only somewhat
       devious, it undermines important judicial values. . . . In order to preserve the
       integrity of the appellate structure, we should not be considered a “second shot”
       forum, a forum where secondary, back-up theories may be minted for the first
       time.

Isaak v. Trumbull Sav. & Loan Co., 169 F.3d 390, 396 n.3 (6th Cir. 1999) (quoting Estate of

Quirk v. C.I.R., 928 F.2d 751, 758 (6th Cir. 1991)).

       The Court adheres to this rule except in “‘exceptional cases or particular circumstances’

or when the rule would produce ‘a plain miscarriage of justice.’” Elkins, 8 F.3d at 1072 (quoting

Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988)).

       In his motion for summary judgment, Zberkot argued that he was entitled to immunity on

Seales’ gross negligence claim, but he did not argue that he was immune from liability with

respect to the false arrest and/or false imprisonment claim. On appeal, however, Zberkot argues


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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


that he is still entitled to immunity on this claim because in his motion for summary judgment he

argued that “he was immune from liability as to intentional tort claims,” which “applies to the

claims of false arrest and imprisonment.” (Zberkot Br. at 15.) More specifically, in his motion

for summary judgment, Zberkot says, “Plaintiffs allegations of intentional tort, under the factual

circumstances, were also not sufficient to remove the individual Defendant's immunity because

Plaintiff failed to plead or prove facts which amounted to gross negligence as required under the

governmental immunity act.” (R. 74, Motion, PageID # 504.) Even though Zberkot uses the

phrase “intentional tort,” he does not argue that he should be shielded by immunity for Seales’

false arrest and false imprisonment claim. The section header and the sentence itself only

reference gross negligence, or Count III in Seales’ amended complaint. Additionally, the statute

Zberkot cites in support of his argument (MCL 691.1407.(2)(C)) refers only to gross negligence,

and the case law he cites involve claims of gross negligence. Nowhere in the two pages

dedicated to this argument does Zberkot discuss immunity with regard to the false arrest and/or

imprisonment claim. He exclusively discusses immunity as to the gross negligence claim.

Therefore, because this argument for immunity on the false arrest and/or false imprisonment

claim was not presented to the district court, it is not properly before this Court.

       Even on appeal, Zberkot’s brief barely makes the argument that he is entitled to

immunity under Michigan law. Zberkot spends approximately two sentences on this issue. In

the first sentence he describes a Michigan case where the Michigan Court of Appeals found a

detective was immune to a claim of false imprisonment. In the second sentence, Zberkot makes

the conclusory assertion that “[s]imilarly in our case, there is no evidence of any malicious intent

on the part of Officer Zberkot.” (Zberkot Br. at 15.) Thus, not only did Zberkot not argue that




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Case No. 17-1096, Seales v. City of Detroit, Mich., et al.


he was entitled to immunity on this specific claim in his motion for summary judgment before

the district court, but he hardly makes this argument on appeal either.

       We do not believe this case presents the kind of exceptional circumstances that would

“warrant disregarding the general rule.”      Elkins, 8 F.3d at 1072; see also Harris v. TD

Ameritrade, Inc., 805 F.3d 664, 667–68 (6th Cir. 2015) (declining to review a claim when it was

raised for the first time in an appellate brief and when the argument contained in the brief was

not “presented with sufficient clarity and completeness for [the Court] to resolve”).

       Consequently, Zberkot cannot argue on appeal that this Court should reverse the district

court’s denial of summary judgment with regard to the claim of false arrest/imprisonment based

on immunity because Zberkot did not raise this claim before the district court and does not

sufficiently present the argument before this Court.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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