Also See:
http://michiganoidv.blogspot.com/2004/12/officer-doug-graham-battle-creek-pd.html
An OIDV victim's horror story at the hands of Detective Guy Picketts Jr. [Calhoun SD]
December 16, 2004: Dispatcher Sonte Rounda Everson [Battle Creek PD] was sexually assaulted by her ex-boyfriend, Officer Doug Graham [also of the Battle Creek PD]. However, Sonte was afraid to report the incident, and did not report it for almost a year and only at the urging of her counselor.
September 2005: Dispatcher Everson reported the December assault to Detective Guy Picketts Jr. [Calhoun SD], who failed to properly investigate her complaint.
August 16, 2006: Everson filed a complaint against Detective Picketts for his failure to properly investigate her complaint.
August 22, 2006: Detective Picketts had Everson charged and arrested for filing a false police report [December 16, 2004 assault].
May 2007: At a court hearing, the charges for filing a false police report against Everson were dropped.
May 2007: As Everson was leaving the courthouse from having the charges dropped, Detective Pickett had her re-charged and re-arrested on new charges for filing a false police report.
February 2008: Charges of filing a false police report were once again dismissed against Everson.
August 12, 2012: Everson won a $1,000,000 lawsuit for the retaliation she was subjected to at the hands of Detective Guy Picketts.
"This has been a long ordeal. To survivors of sexual assault and domestic violence, know that you have the right to stand up for your life, no matter who the perpetrator is. Justice will eventually prevail." Sonte Rolina Everson.
Linda Everson, Named As "Linda (Sonte) Everson," Aka Sonte v. Calhoun County, et al
http://www.law.com/jsp/decision_friendly.jsp?id=1202489051659
6th Cir.
01-24-2011
Cole, Circuit Judge.
09-2183
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0053n.06
BEFORE: BOGGS, COLE, and CLAY, Circuit Judges.
OPINION
In this 42 U.S.C. § 1983 action for First Amendment retaliation, Defendant-Appellant Gary Picketts appeals on qualified immunity grounds the district court's order granting in part and denying in part his motion to dismiss and alternative motion for summary judgment.*fn1 For the following reasons, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual History
1. The Police Report & Initial Investigation of Graham In September 2005, Plaintiff-Appellee Linda Everson reported to the Calhoun County Sheriff's Office that, on December 16, 2004, her then-boyfriend Officer Doug Graham of the Battle Creek Police Department forcibly sodomized her during an otherwise-consensual sexual encounter. She stated that she had broken up with Graham and, unsure how to proceed, confided in friends, a counselor, and her physician about the sexual assault before finally deciding to file a police report.
Calhoun County Detective Guy Picketts handled the investigation into Graham's conduct. He interviewed Everson; several of Everson's friends and coworkers in the police department, all of whom confirmed that Everson reported being sexually assaulted by Graham; and Everson's doctor. He also interviewed Graham, who denied that the sodomy occurred and suggested that Everson filed the report out of spite when she found out that he was marrying another woman. Picketts interviewed Everson's friend Sheri Lemonious as well. Although Picketts reported in 2005 that Lemonious said Everson described the sodomy as consensual, Lemonious attested in 2009 that she told Picketts the opposite. Everson alleges that Picketts failed to interview several important witnesses during his investigation.
Picketts submitted a report of his investigation to the Calhoun County Prosecutor's Office, which recused itself on conflict-of-interest grounds. In January 2006, the Branch County prosecutor reviewed Picketts's report and declined to prosecute Graham for sexual assault.
2. Everson's Speech
Upset by the decision not to prosecute, Everson publicly criticized Picketts loudly and repeatedly, accusing him of not doing his job and being "just part of the good ole boy system." She mentioned her complaints to colleagues in law enforcement, at least one of whom relayed her statements to Picketts. Everson also met with Picketts's boss on August 16, 2006, to initiate a formal complaint against Picketts and sent a letter to the Calhoun County prosecutor on August 31, 2006, asking him to take action about her concerns regarding Picketts's investigation of Graham.
3. Picketts's Investigation & Arrest of Everson
Picketts began documenting Everson's comments in a new investigative report-this time against Everson. On August 22, 2006, Picketts interviewed Ethel Fitzpatrick ("Mrs. Fitzpatrick"), Everson's former friend, who stated that Everson had told her that the sexual assault had never occurred. Picketts did not confront Everson about the allegations, and eight days later, he requested an arrest warrant for Everson for the felony of filing a false police report. Everson alleges that Picketts opened the investigation against her before he interviewed Mrs. Fitzpatrick. Everson also alleges that Picketts lied about the first time he met Mrs. Fitzpatrick. Keith Fitzpatrick ("Mr. Fitzpatrick"), Mrs. Fitzpatrick's husband, asserts that at some point Picketts came to their house, told them that he had a personal dispute with Everson, and spoke with Mrs. Fitzpatrick at length and in private. Mr. Fitzpatrick attested that he could not remember whether the in-home meeting took place before or after the August 22, 2006 interview. But he also stated that he had never seen Picketts before the in-home meeting, and both Fitzpatricks were present for the August 22, 2006 interview.
Calhoun County did not recuse itself from the case against Everson, but rather charged her with filing a false police report. After a preliminary hearing, the Michigan district court found probable cause that Everson had committed the crime and bound her over to the circuit court for trial. The circuit court quashed the bind-over and dismissed the case for lack of evidence. Everson was then rearrested on the same charges, and the case was transferred to Kalamazoo County. On February 1, 2008, the Kalamazoo County Prosecutor dismissed all charges against Everson "in the best interests of justice."
B. Procedural History
Everson filed a complaint against Calhoun County, the prosecutor, and Picketts (collectively, "Defendants") under § 1983, alleging that their actions (1) violated her equal protection rights; and (2) constituted illegal retaliation for the lawful exercise of her First Amendment rights. In response, Defendants filed a motion to dismiss and, in the alternative, a motion for summary judgment. After oral argument, the district court issued an order (1) dismissing the equal protection claim; (2) dismissing the retaliation claim against the prosecutor on absolute prosecutorial immunity grounds; (3) denying the motion in all other respects as to Picketts; and (4) denying the motion in all other respects as to Calhoun County without prejudice to renewal of the motion after the close of all discovery. Picketts filed this appeal, alleging that the district court erred in failing to dismiss all claims against him on qualified immunity grounds.
II. DISCUSSION
A. Standard of Review
This court reviews a district court's denial of summary judgment on qualified immunity grounds de novo. Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006). "We may only review the denial of qualified immunity to the extent that the 'appeal involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.'" Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008) (quoting Gregory, 444 F.3d at 742). The defendant must "be willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Moldowan v. City of Warren, 578 F.3d 351, 370 (6th Cir. 2009).
B. Analysis
In determining whether qualified immunity applies, this court employs a two-step test, considering (1) whether, viewing the allegations in the light most favorable to the injured party, a constitutional right has been violated; and (2) whether that right was clearly established. Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). We have discretion to undertake the steps in either order. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
It is clearly established that "the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a prima facie First Amendment retaliation claim, Everson must establish (1) protected speech; (2) injury as a result of defendant's actions; and (3) causation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
Picketts first argues that Everson's allegations do not constitute a prima facie retaliation claim because they fail to establish a lack of probable cause, an element of causation. He is correct that § 1983 claims for retaliatory prosecution and arrest fail as a matter of law if the defendant had probable cause. See Hartman, 547 U.S. at 261-62 (Bivens claim for retaliatory prosecution); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (retaliatory arrest). Probable cause exists when an officer has reasonably trustworthy information sufficient to warrant a prudent person in believing that a suspect has committed a crime. Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000). In determining whether probable cause existed in this case, we examine the totality of the circumstances from the perspective of the arresting officer at the time of the arrest. Parsons v. City of Pontiac, 533 F.3d 492, 501 (6th Cir. 2008). In § 1983 actions, the existence of probable cause is a jury question unless only one reasonable determination is possible. Id. (citing Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002)).
In this case, there are genuine disputes of material fact about whether Picketts intentionally changed Lemonious's statement in his report, spoke privately with Mrs. Fitzpatrick in her home at length before she gave her formal statement, and influenced the content of Mrs. Fitzpatrick's statement. Viewing the facts in the light most favorable to Everson, a reasonable jury could find that, at the time Picketts sought an arrest warrant for Everson, the information he had collected against her was not reasonably trustworthy. Because more than one reasonable determination as to probable cause is possible, it is therefore appropriate to allow the case to proceed to trial.
Picketts's argument that this court should accept the prosecutor's and state court's findings of probable cause as evidence that probable cause existed is inapposite. Because these probable cause determinations were based only on the evidence that Picketts included in his report-which did not describe the circumstances, as alleged by the plaintiff, surrounding Lemonious's and Mrs. Fitzpatrick's statements-we do not find them probative to the issue of whether Picketts had sufficient reasonably trustworthy information at the time of the arrest.
Picketts also contends that the district court's finding that genuine issues of material fact exist was erroneous because it relied on a series of unreasonable adverse inferences and omitted a number of relevant facts. But the "contention that the district court erred in finding a genuine issue of fact for trial is not the type of legal question which we may entertain on an interlocutory basis." Gregory, 444 F.3d at 743. Although this court has recognized an apparent exception "'where the trial court's determination that a fact is subject to reasonable dispute is blatantly and demonstrably false,'" Moldowan, 578 F.3d at 370 (quoting Wysong v. Heath, 260 F. App'x 848, 853 (6th Cir. 2008)) (internal quotation marks omitted), that exception does not apply here. The district court noted the following disputed facts, among others: (1) when Picketts opened his investigation into Everson; (2) whether Lemonious told Picketts that Everson said she had not been raped; and (3) when and how Mrs. Fitzpatrick surfaced as a witness. All of these facts are material to the existence of probable cause. These facts are also genuinely in dispute: each party answers these questions differently, each party's allegations of fact are supported by witness statements, and no objective evidence makes one party's allegations obviously false. Cf. Scott v. Harris, 550 U.S. 372, 380-81 (2007) (finding no genuine dispute of material fact where video evidence blatantly contradicted the plaintiff's allegation that he was driving carefully). Because the district court's finding of genuine issues of material fact was not blatantly and demonstrably false, we lack jurisdiction to undertake further review in this regard.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the judgment of the district court denying Picketts's motion for summary judgment.
Opinion Footnotes
*fn1 Defendant Calhoun County appealed the district court's determination that it was not entitled to sovereign immunity, but withdrew its appeal of this issue at oral argument.
Sunday, August 12, 2012
Monday, August 6, 2012
08062012 - Deputy Joseph Clewley - Sentenced - Ingham SD
Also See:
Deputy Joseph Clewley - Charged with child abuse [May 05, 2012]
Attorney: Former Ingham County Sheriff's detective's hitting teenage son was 'a 30- or 45-second event that changed the course of his life'
Published: Monday, August 06, 2012, 3:39 PM
Updated: Monday, August 06, 2012, 3:41 PM
Brandon Howell
MLive.com
http://www.mlive.com/lansing-news/index.ssf/2012/08/attorney_former_ingham_county.html
"I've had 50 percent custody of my boys since they were 3 and 5," he said at his sentencing hearing Monday. "I've raised them essentially as a single parent from 2004 to 2011 -- I just recently got remarried.
"I love my boys. I would do anything for my boys," Clewley said, fighting back tears.
Ingham District Judge Donald Allen sentenced Clewley to six months probation,$760 in fines and costs, anger management and counseling and five days of community service. Clewley is not allowed to patronize locations where alcohol or controlled substances are consumed.
Clewley, 46, of Leslie, struck his son on May 5, court records show. On May 24, he was charged with third-degree child abuse, a two-year felony, and suspended from the Ingham County Sheriff's Office.
"This incident I'm very sorry for," Clewley told Allen. "I reacted to an incident between the two of them (his sons)... I've taken extensive parenting classes. I have listened to audio, read two books, been to group therapy for parental concerns and how to raise children. I have learned a lot.
"I'm open to new theories and information on how handle stress, stress management, anger, and anger management. Continuing to search out answers on how to prevent this from happening again."
Clewley pleaded to a lesser charge of aggravated domestic violence, a three-year misdemeanor, in late June. He was terminated from the Sheriff's Office on July 19, according to Major Sam Davis. Clewley had served with the agency for 12 years, most recently as a detective.
Prior to Allen's ruling, Clewley's attorney, Nick Bostic, asked the judge to avoid jail time for his client. Bostic urged Allen to consider Clewley's circumstances.
"Obviously, people don't come into court as police officers and have any expectation of being treated special or getting a special break," Bostic said. "But we have a situation where Mr. Clewley has lost his employment...and it's the kind of job it's what you are, it's not just what you do. That's devastated him.
"(It was) a 30- or 45-second event that changed the course of his life."
Bostic also noted Clewley opted against invoking reasonable parental discipline as a defense.
"He dismissed it...because he did not want to put his children through that," Bostic said. "If you think that Joe Clewley is the kind of guy that would add stress and anxiety and burden his children for himself, then you don't know Joe Clewley."
Allen said he was not prepared to incarcerate Clewley, adding he had read "half a dozen or more" letters submitted in Clewley's defense. Some were from former law enforcment coworkers, and one was from Clewley's brother, explaining their upbringing, the judge said.
Allen asked what Clewley has learned thus far in his parenting counseling.
"Parenting is always a perpetual learning curve," Clewley responded. "I'm going to put the parenting styles I've learned into action as I slowly get more visitation with my boys and try to fix and repair the damage that I have done. I'm going to continue to seek help in trying to manage my life, the stress."
"So that's kind of where you're at, just a continued work in progress?" Allen asked.
"Yes sir," Clewley replied. "I assure the court that this will never happen again."
Allen said the sentence he imposed aims to bring Clewley's assertion to fruition.
"I want to make sure that this does not replicate itself," Allen said. "I'm encouraged by the fact that you're saying that it will not happen, but I want to make sure that we put in place safeguards to try and keep it from happening as well."
The conviction will be stricken from Clewley's record, Allen ruled, if he successfully completes the probation term. Clewley is scheduled for review in February 2013, court records show.
Former Ingham County sheriff's detective sentenced to probation for striking son
Published: Monday, August 06, 2012, 2:24 PM Updated: Monday, August 06, 2012, 3:34 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/08/former_ingham_county_sheriffs.html
Joseph Clewley, 45, of Leslie, was sentenced to six months probation, $760 in fines and costs, and anger management and counseling. Ingham District Judge Donald Allen also ruled Clewley is not allowed to patronize locations where alcohol or controlled substances are consumed.
Clewley was originally charged with third-degree child abuse, a two-year felony, but pleaded to a lesser chargeof aggravated domestic violence, a three-year misdemeanor, in late June.
Clewley served with the Ingham County Sheriff's Office for 12 years. He was suspended from the agency on May 24, the same day charges against him were authorized.
The case was prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office.
Allen ruled the criminal conviction will be removed from Clewley's record if he successfully completes probation. A violation of said probation could result in jail time.
Prosecutor: Plea deal for Ingham sheriff's detective originally charged with child abuse a 'fair and appropriate resolution'
Published: Tuesday, June 26, 2012, 5:29 PM
Updated: Tuesday, June 26, 2012, 5:31 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/06/prosecutor_plea_deal_for_ingha.html
Ingham County sheriff's Detective Joseph Clewley on Tuesday agreed to a plea deal reducing a felony charge resulting from his alleged abuse of his 13-year-old son in May to a misdemeanor.
The deal struck at a pretrial conference lessened a charge of third-degree child abuse, a two-year felony, to aggravated domestic violence, a one-year misdemeanor, according to Eaton County Senior Assistant Prosecutor Neil O'Brien.
Prosecutors offered Clewley, 46, of Leslie, the plea bargain after considering several important factors, O'Brien said.
"After we consulted with the child's mother and reviewed the facts, we believed that this was a fair and appropriate resolution to the case," he said. "In any case when you're talking about assaultive crimes, we're concerned from a law enforcement perspective of trying to make sure that there's going to be an impact that this prosecution has on people's behavior, and that's no different in this case."
Clewley, who has served with the Ingham County Sheriff's Office for the past 12 years, was arraigned on the child abuse charge on May 24, the same day the charge was authorized by prosecutors.
Ingham County sheriff's Chief Dep. Greg Harless previously said Clewley was suspended without pay from the department on May 24 before he was arraigned. Clewley remains suspended from work, Ingham County sheriff's Major Joel Maatman confirmed Tuesday.
The case was prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office.
O'Brien added prosecutors were wary of calling on Clewley's son to testify against his father.
"The defendant, based on whether the case is resolved in a matter satisfactory to him, may have forced us into putting this boy on the stand, testifying against his dad to accomplish about the same outcome that we could have in this plea agreement," O'Brien said.
"There wasn't a major difference (between the two charges) in my mind. It was six of one, half a dozen of the other," he added, noting Clewley and his attorney, Nicholas Bostic, agreed to the plea deal.
O'Brien said Clewley was offered no special consideration due to his position in a law enforcement capacity.
"We are concerned with public perception of how the criminal justice system handles these matters," he said. "We're the public's agent on the side of law enforcement, but we still have to make decisions as to what the appropriate initial charge was and how to resolve it, regardless of who the defendant is.
"In this case, I don't believe it is different than just what a regular layperson defendant's outcome would have been. It's the media who seems to be focusing on who this defendant is."
Clewley is scheduled for sentencing before Ingham District Judge Donald Allen on Aug. 6 at 1:30 p.m.
Ingham County sheriff's detective pleads guilty to lesser charge stemming from alleged abuse of 13-year-old son
Published: Tuesday, June 26, 2012, 3:24 PM
Updated: Tuesday, June 26, 2012, 3:43 PM
Brandon Howell
MLive
http://www.mlive.com/lansing-news/index.ssf/2012/06/ingham_county_sheriffs_deputy.html
MASON, MI -- An Ingham County sheriff's detective pleaded guilty to a lesser charge stemming from an incident that originally resulted in his being charged with third-degree child abuse of his 13-year-old son.
Joseph Clewley, 46, of Leslie, on Tuesday pleaded guilty to aggravated assault before Ingham District Judge Donald Allen, court records show. The charge is a misdemeanor punishable by up to one year imprisonment and a $1,000 fine.
Clewley, who has served with the Ingham County Sheriff's Office for the past 12 years, was arraigned on the child abuse charge on May 24, the same day the charge was authorized by prosecutors.
Ingham County sheriff's Chief Dep. Greg Harless previously said Clewley was suspended without pay from the department on May 24 before he was arraigned.
"As soon as we found out the charge was going to be issued he was suspended," Harless said earlier this month.
Clewley remains suspended from work, the Sheriff's Office confirmed Tuesday afternoon.
The alleged incidence of abuse occurred in May, court records show.
The case is being prosecuted by the Eaton County Prosecutor's Office. The Ingham County Prosecutor's Office recused itself due to Clewley's position with the county Sheriff's Office, Harless said.
Clewley is scheduled for sentencing on Aug. 6 at 1:30 p.m.
Calls placed to the Eaton County Prosecutor's Office and Clewley's attorney, Nicholas Bostic, were not immediately returned.
Subscribe to:
Posts (Atom)