Ahmed v. Detroit

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MUBAREZ AHMED,

Plaintiff,

Case No. 18-13849

v.

Hon. George Caram Steeh

ERNEST WILSON,

Defendant.

___________________________/

OPINION AND ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT (ECF NO. 38)

Defendant Ernest Wilson seeks partial summary judgment in this

action brought pursuant to 42 U.S.C. § 1983. The court has reviewed the

record and has determined that its decision would not be aided by oral

argument.

BACKGROUND FACTS

In 2002, Plaintiff Mubarez Ahmed was convicted of murdering Lavelle

Griffin and LaTanya White in a drive-by shooting. He was sentenced to 30-

60 years in prison. In 2018, Ahmed’s conviction was revisited by the

Wayne County Conviction Integrity Unit and the University of Michigan Law

School’s Innocence Clinic. After this investigation revealed new evidence

that cast doubt on the integrity of the proceedings, the Wayne County

Prosecutor’s Office moved to vacate Ahmed’s conviction and dismiss the

charges. Ahmed was released from prison in 2018 after serving more than

seventeen years.

The facts leading up to Ahmed’s conviction are as follows. On

February 9, 2001, White and Griffin were shot in their vehicle while at an

intersection in the City of Detroit. The shooting was witnessed by Izora

Clark, who was also at the intersection in her car. She described the

shooter as looking Hispanic, with long sideburns, and stated that he was in

a burgundy vehicle. Another witness, Gerald Henderson, described the

vehicle as a red 1997-99 Ford Taurus.

The officer in charge of the murder investigation was Defendant

Ernest Wilson. The day after the shooting, he received an anonymous tip

that the shooter was an Arabic man nicknamed “Spaghetti.” Wilson

learned from police sources that “Spaghetti” was Mubarez Ahmed.

Days later, Ahmed’s former girlfriend, Bobbi Ruff, met with Wilson

and evidence technician Eugene Fitzhugh. Wilson asked Fitzhugh to

perform a gunshot residue test on Ruff’s vehicle, a red 2000 Ford Taurus.

The test result was negative.

As part of the 2018 Conviction Integrity Unit investigation, Ruff

provided a statement. According to Ruff, she told the police officer at the

vehicle inspection that she and Ahmed had stopped dating two months

before the shooting, that they had a “very bad break-up,” and that he did

not have access to her car. ECF No. 40-8.

Wilson did not mention Bobbi Ruff in his progress notes. Rather, he

incorrectly identified Ahmed’s girlfriend, and the owner of the tested

vehicle, as Julie Wheeler. Wilson testified that he obtained this information

from another officer, who learned it from an FBI task force member.

Wheeler states that she never met Ahmed or loaned him her vehicle, which

was a red, 1998 Ford Contour. Wheeler also denies meeting with police or

ever having her car inspected as part of a homicide investigation. ECF No.

40-11.

On February 14, 2001, Wilson had Ahmed arrested. Izora Clark was

brought to the police station to view a lineup with Ahmed in it. First, Clark

was provided with mugshots to review. While she was doing so, Wilson

showed her a photograph of Ahmed: “All of a sudden he walked over to

me and he say, here, you don’t have to look no more, you don’t have to

look no more. This is the motherfucker. He’s the motherfucker that did it,

and he showed me the picture and he say, I know this motherfucker did it,

because I have another witness that said he did it.” ECF No. 40-10 at

PageID 700. Wilson told Clark not to tell anyone that he showed her the

photo of Ahmed. Id. Clark subsequently picked Ahmed out of the lineup.

Id. at PageID 701.

Clark testified that she would not have picked Ahmed out of the

lineup if she had not seen his photo and had not been pressured by Wilson.

Id. Clark shared her concerns with Wilson before Ahmed’s preliminary

examination, but he told her that she needed to “stay with the program.” Id.

According to Clark, Wilson stopped by her house once every week or two

weeks prior to Ahmed’s trial. Id. at PageID 702. “He said he was just

coming to check on me, make sure I was okay . . . .” Id. Clark testified that

she was afraid of Wilson and that she lied when she identified Ahmed as

the shooter at his preliminary examination and trial. Id. at PageID 702,

708.

Prior to trial, Ahmed moved to suppress the lineup identification,

arguing that he had been arrested without probable cause. Wilson testified

at the hearing, over which Judge Vonda Evans presided. Wilson stated

that the information leading to Ahmed’s arrest included Clark’s description,

the tip about “Spaghetti,” and the fact that Ahmed’s girlfriend, Julie

Wheeler, owned a red car similar to the one driven by the shooter. ECF

No. 40-12 at PageID 726-30, 735-36. Recognizing that the anonymous tip

did not in itself establish probable cause, Judge Evans relied heavily on the

fact that Ahmed had access to Wheeler’s vehicle to deny his motion. Id. at

PageID 750, 756-57 (“Then how is it, is that just coincidence that it’s found

out that Ms. Wheeler, who is the girlfriend of the Defendant, also drives this

type of red or reddish type car?”). She testified that the alleged relationship

between Ahmed and Wheeler and the description of Wheeler’s car “was

central to me at that time in allowing that case to go forward.” ECF No. 40-

17 at PageID 827.

After a jury trial, Ahmed was convicted of two counts of second-

degree murder and two counts of felony firearm. Once the conviction was

vacated and the charges were dismissed, Ahmed brought this action

against Wilson in his individual capacity. The complaint alleges four

causes of action against Wilson: Count I, Brady violations; Count II,

malicious prosecution; Count III, violation of due process as a result of

single-photo identification process; and Count IV, fabrication of evidence.

Wilson seeks partial summary judgment on Counts I, II, and IV.

LAW AND ANALYSIS

I. Summary Judgment Standard

Summary judgment is appropriate if “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). In reviewing a motion for summary

judgment, the court must 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.’” Amway Dist.

Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

The facts and any reasonable inferences drawn from the facts must be

viewed in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

response to a properly supported motion for summary judgment, the

opposing party must come forward with specific evidence showing there is

a genuine issue of fact for trial. A “mere scintilla” of evidence is insufficient

to meet this burden; the evidence must be such that a reasonable jury

could find in favor of the nonmoving party. Anderson, 477 U.S. at 252.

II. Analysis

Defendant acknowledges that there is a question of fact regarding the

photo identification procedure and does not pursue summary judgment with

respect to Count III. Defendant seeks summary judgment on three issues:

1) the physical lineup was not unduly suggestive as a matter of law; 2)

Wilson did not intimidate Clark; and 3) Wilson did not fabricate the Julie

Wheeler evidence.1 In doing so, Defendant chooses pieces of evidence to

challenge, rather than addressing the legal claims pleaded by Plaintiff. The

flaw of this approach is that none of Plaintiff’s claims are solely premised

on the evidence Defendant seeks to challenge. In other words, assuming

Defendant is correct that the physical lineup is not unduly suggestive, that

Wilson did not intimidate Clark, and that Wilson did not fabricate the Julie

Wheeler evidence, Defendant does not explain how it follows that Plaintiff’s

claims of malicious prosecution, Brady violations, and fabrication of

evidence are subject to dismissal. Plaintiff relies on other evidence to

support these claims, including the Clark photo identification process and

the Bobbi Ruff evidence, which Defendant does not address. Defendant’s

motion does not acknowledge all of the material facts alleged by Plaintiff.

As a result, Defendant has failed to sustain his burden to demonstrate that

he is entitled to summary judgment.

Defendant also resists Plaintiff’s presentation of four different causes

of action, arguing that Plaintiff’s complaint boils down to one legal claim.

Defendant cites no persuasive or binding authority for this proposition,

relying on Burley v. Baltimore Police Dep’t, 422 F. Supp.3d 986, 1030 (D.

1 In his response brief, Plaintiff states that he will not pursue the allegation that

the physical lineup was unduly suggestive at trial. Therefore, the court will consider the

claim abandoned.

Md. 2019). In Burley, the court determined that the plaintiff’s allegation that

the police had planted evidence was better understood as a fabrication of

evidence claim rather than a Brady claim, and found the two claims

“duplicative.” Id. The Sixth Circuit has rejected such an approach,

however, noting that different causes of action may share the same factual

premise. Gregory v. City of Louisville, 444 F.3d 725, 750 (6th Cir. 2006) (“It

is not the role of this Court to restrict Plaintiff's choice of viable legal

theories.”). See also Mills v. Barnard, 869 F.3d 473, 485 (6th Cir. 2017)

(“The district court combined the fabrication claim and the withholding claim

into one, but this was in error.”). Indeed, the Sixth Circuit has analyzed

Brady, fabrication, and malicious prosecution claims separately, as they

each involve different legal elements. See id.; Jackson v. City of

Cleveland, 925 F.3d 793, 813-20 (6th Cir. 2019), cert. denied, 140 S.Ct.

855 (2020) (fabricated witness statement supported Brady, fabrication of

evidence, and malicious prosecution claims). Defendant’s failure to

undertake an analysis of each of Plaintiff’s claims is fatal to his motion.

A. Brady Claim

For example, Defendant does not squarely address Plaintiff’s Brady

claim. In Brady v. Maryland, the Supreme Court held that the prosecution’s

suppression of material evidence favorable to the accused violates due

process. 373 U.S. 83 (1963). The duty to disclose favorable evidence

includes exculpatory and impeachment evidence, and applies to the police

as well as the prosecutor. Strickler v. Greene, 527 U.S. 263, 280-81

(1999). “Brady claims have three elements: ‘[1] the evidence at issue must

be favorable to the accused, either because it is exculpatory, or because it

is impeaching; [2] that evidence must have been suppressed by the State,

either willfully or inadvertently; and [3] prejudice must have ensued.’”

Jackson, 925 F.3d at 814 (quoting Strickler, 527 U.S. at 281-82). “To show

prejudice, Plaintiffs must show that the allegedly suppressed evidence was

‘material;’ in other words, ‘that there is a reasonable probability that the

suppressed evidence would have produced a different verdict.’” Id. at 815

(quoting Strickler, 527 U.S. at 280-81). “The question is not whether the

defendant would more likely than not have received a different verdict with

the evidence, but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514

U.S. 419, 434 (1995). In determining the materiality of the suppressed

evidence, the court considers it “collectively, not item by item.” Id.

Plaintiff contends that the following exculpatory or impeachment

evidence was withheld by Wilson: (1) Wilson showed Clark a photo of

Ahmed and told her he was the one who committed the murders; (2)

Wilson drove by Clark’s house on almost a weekly basis to “check on her”

before the trial; (3) Julie Wheeler was not Ahmed’s girlfriend and her

vehicle was not examined by police; and (4) Ahmed’s former girlfriend

Bobbi Ruff brought her vehicle in to be examined by police and told them

that Ahmed did not have access to her car.

Defendant argues that Wilson driving by Clark’s house to check on

her does not amount to witness intimidation. But Plaintiff is not alleging a

stand-alone witness intimidation claim. Rather, Plaintiff asserts that this

evidence, in combination with other evidence withheld by Wilson, reflects

on his credibility and should have been disclosed. Wilson’s practice of

“checking on” Clark – after he showed her a photo of Ahmed, told her

Ahmed was the murderer, and said not to tell anyone that he showed her

the photo – could reasonably be viewed as an attempt by Wilson to ensure

that Clark stayed on message.

Defendant also argues that the Julie Wheeler evidence is not subject

to disclosure under Brady, because Ahmed would have known that

Wheeler was not his girlfriend and that he did not have access to her car.

“[T]here is no Brady violation if the defendant knew or should have known

the essential facts permitting him to take advantage of the information in

question, or if the information was available to him from another source.”

Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). Ahmed would not have

known, however, that Wheeler was not the one investigated – a fact

bearing on Wilson’s credibility and the soundness of the investigation.

Moreover, even assuming that the failure to disclose the falsity of the Julie

Wheeler evidence was not a Brady violation, Plaintiff’s Brady claim

nonetheless survives. Defendant does not dispute that neither the Izora

Clark photo identification evidence nor the Bobbi Ruff evidence was

produced, that this evidence was favorable to Ahmed, or that it was

material. Accordingly, Defendant has not satisfied his burden of

demonstrating that summary judgment is proper on Plaintiff’s Brady claim.

B. Fabrication of Evidence

The Due Process Clause of the Fourteenth Amendment is also

“violated when evidence is knowingly fabricated and a reasonable

likelihood exists that the false evidence would have affected the decision of

the jury.” Jackson, 925 F.3d at 815 (citation omitted). Plaintiff alleges that

Wilson fabricated evidence by steering Clark toward identifying Ahmed in

the lineup and by testifying that Wheeler was Ahmed’s girlfriend and owned

a red car similar to the one driven by the shooter. Wilson responds by

arguing that he did not “invent” Julie Wheeler, but relied upon information

he received from the FBI. There is a question of fact, however, regarding

whether Wilson knew that the information he received was incorrect. The

evidence technician testified that Wilson was present, along with the owner

of the car, at the vehicle inspection. ECF No. 40-7 at PageID 667. The

owner of the car was Bobbi Ruff, who told the police officers present that

Ahmed did not have access to her car. ECF No. 40-8. Although Wilson

testified that he did not meet the vehicle owner, it is for the jury to assess

his credibility in this regard.

Moreover, for the purpose of this motion, Defendant does not dispute

Plaintiff’s allegation that he fabricated evidence by steering Clark toward

identifying Ahmed in the lineup. Clark’s identification of Ahmed was the

centerpiece of the prosecution’s case and clearly affected the decision of

the jury. Defendant has not demonstrated that summary judgment is

proper with respect to Plaintiff’s fabrication of evidence claim.

C. Malicious Prosecution

A malicious prosecution claim has its underpinnings in the Fourth

Amendment. The Fourth Amendment right to be free of unreasonable

searches and seizures includes “the right to be free of unjust prosecution.”

Jackson, 925 F.3d at 820. A malicious prosecution claim has four

elements: “(1) that a criminal prosecution was initiated against the plaintiff

and that the defendant ma[d]e, influence[d], or participate[d] in the decision

to prosecute; (2) that there was a lack of probable cause for the criminal

prosecution; (3) that, as a consequence of a legal proceeding, the plaintiff

suffered a deprivation of liberty . . . apart from the initial seizure; and (4)

that the criminal proceeding must have been resolved in the plaintiff’s

favor.” Id.

Plaintiff alleges that these elements are met because Wilson

participated in or influenced the decision to prosecute Ahmed; there was no

probable cause for his prosecution, which was based upon fabricated

evidence; he suffered a deprivation of liberty; and the prosecution was

resolved in his favor. Defendant presents no analysis whatsoever

regarding the elements of Plaintiff’s malicious prosecution claim and does

not contest Plaintiff’s allegations. As such, he has failed to sustain his

burden and the court will deny summary judgment as to this claim.

D. Qualified Immunity

Defendant also argues that he is entitled to qualified immunity, which

shields officials from civil liability if their conduct “does not violate clearly

established rights of which a reasonable person would have known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). In determining whether a defendant

is entitled to qualified immunity, the court analyzes “(1) whether,

considering the allegations in the light most favorable to the party injured, a

constitutional right has been violated, and (2) whether that right was clearly

established.” Richmond v. Huq, 885 F.3d 928, 947 (6th Cir. 2018) (citation

omitted).

As discussed above, Plaintiff has alleged sufficient facts to support

his Brady, fabrication of evidence, and malicious prosecution claims.

Therefore, the court must consider whether the rights at issue were clearly

established “such that a reasonable official would have understood that his

conduct violated the right.” Comstock v. McCrary, 273 F.3d 693, 711 (6th

Cir. 2001). “As the Supreme Court has instructed, we need not find a case

in which ‘the very action in question has previously been held unlawful,’

but, ‘in the light of pre-existing law[,] the unlawfulness must be apparent.’”

Id. at 711 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Defendant does not articulate why he is entitled to qualified immunity

with respect to Plaintiff’s Brady, fabrication of evidence, or malicious

prosecution claims. Rather, he asserts that it was not clearly established

that he violated the constitution by “checking on” Clark and driving by her

house repeatedly prior to trial. Again, Defendant mischaracterizes

Plaintiff’s claims; Plaintiff does not assert a stand-alone claim for witness

intimidation. Rather, Plaintiff alleges that the evidence of Wilson “checking

on” Clark is relevant to his Brady and fabrication claims.

Defendant also argues that he is immune because he was entitled to

rely on information from the FBI regarding Julie Wheeler. As discussed

above, however, there is a question of fact regarding whether Wilson knew

that the information he received from the FBI was incorrect.

The question is whether a reasonable official in Wilson’s position,

faced with the facts as alleged by Plaintiff, would have understood that it

was unconstitutional to withhold exculpatory or impeachment evidence and

to fabricate evidence. The Sixth Circuit has held that these rights are

clearly established and have been for decades. Jackson, 925 F.3d at 822-

27. In Jackson, for example, the court denied qualified immunity for

withholding evidence, fabricating evidence, and malicious prosecution,

based upon the allegation that the officer had coerced a witness into

making a false statement. Id. (finding that the rights at issue were clearly

established in 1975); see also Mills, 869 F.3d at 486-87 (denying qualified

immunity on malicious prosecution, fabrication, and withholding evidence

claims to DNA analyst who prepared false report). Wilson does not

articulate why the result should be different here, when Plaintiff alleges that

he pressured Clark into making a false identification, withheld evidence

regarding Bobbi Ruff, and provided false evidence regarding Julie Wheeler.

Accordingly, Wilson is not entitled to qualified immunity.

CONCLUSION

Defendant’s motion fails to fulfill the basic requirements of a properly

supported motion for summary judgment: to view the facts in the light most

favorable to Plaintiff and to address each of the legal elements of Plaintiff’s

claims. As a result, Defendant has not sustained his burden of

demonstrating that no genuine issue of material fact exists for trial, and

Plaintiff has demonstrated that Defendant is not entitled to qualified

immunity.

IT IS HEREBY ORDERED that Defendant’s motion for summary

judgment (ECF No. 38) is DENIED.

Dated: July 17, 2020

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 17, 2020, by electronic and/or ordinary mail.

s/Brianna Sauve

Deputy Clerk