# Brown v. Knapp

> District Court, E.D. Michigan · September 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10219332

## Case

- **Court:** District Court, E.D. Michigan
- **Decided:** September 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JANICE BROWN,
Plaintiff, Case No. 20-cv-12441
Honorable Shalina D. Kumar
v. Magistrate Judge David R. Grand

ANDREW KNAPP et al.,
Defendants.

OPINION AND ORDER DENYING MSP DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF NO. 44), DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 41),
GRANTING DEFENDANT ROSE’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 43), GRANTING DEFENDANT GENESEE
COUNTY’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 45), AND
GRANTING DEFENDANT GOULD’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 68)

I. Introduction

This case against several state and county officials arises from
plaintiff Janice Brown’s September 2018 arrest and ninety-six-hour
detention in Genesee County jail facilities. Brown asserts that Michigan
State Police troopers Andrew Knapp, Bryce Willoughby, Kenneth
Shingleton, and Thomas Dhooghe (collectively, the MSP defendants), and
Genesee County and Genesee County Jail Administrator Jason Gould
(collectively the Genesee County defendants) violated her Fourth
Amendment rights by detaining her for approximately four days without a
probable cause determination. ECF No. 49. The MSP defendants and the

Genesee County defendants move for summary judgment, asserting that
they did not violate Brown’s Fourth Amendment rights and are entitled to
qualified immunity from Brown’s claims. ECF Nos. 44, 45, 68. Brown also

moves for partial summary judgment against the MSP and Genesee
County defendants, contending there is no question of material fact that
defendants violated her Fourth Amendment rights. ECF No. 41.
Brown’s operative complaint also asserts that she was subject to an

unconstitutional strip search by Officer Mackenzie Rose prior to her release
from the Genesee County jail. ECF No. 49, PageID.1653, 1659. Defendant
Rose moves for summary judgment of Brown’s claims relating to the

alleged strip search, contending that Brown has not adduced evidence that
Rose was the officer who allegedly conducted the strip search. ECF No.
43.
The motions were fully briefed, this Court heard oral argument at

hearing held on August 11, 2022, and this matter is ripe for determination.
ECF Nos. 41, 43, 44, 45, 68, 55, 56, 57, 58, 61, 62, 63, 64, 66, 69, 70.
II. Factual Background

In September 2018, Brown traveled from her home in Arkansas to
Michigan to attend a court proceeding for her son, Dale Reed, Jr., who had
been charged with murder and was being detained in the Genesee County

jail in Flint. ECF No. 49, PageID.1647. On September 11, 2018, Brown was
visiting her granddaughter (Reed’s daughter), whose mother, Shaneen
Jones, was named as a witness against Reed. Id. While at Jones’s home,

Shingleton and Dhooge arrived to serve a subpoena on Jones. Id. at
PageID.1648. Shingleton and Dhooge, who saw Brown at the courthouse
earlier that day, asked her why she was at Jones’s house, and she
responded that she was visiting her granddaughter. Id. Brown left Jones’s

house and returned after the troopers left. Id. at PageID.1649. Brown
alleges that while she was gone, Shingleton and Dhooge asked Jones if
Brown was bothering her or if she had offered her money not to testify

against Reed. Id. Jones denied both questions. Id. Brown alleges that
Shingleton and Dhooge believed she was responsible for Jones’s lack of
cooperation and refusal to testify against Reed. Id. at PageID.1649-50.
On September 14, 2018, Brown arrived at the courthouse, with her

granddaughter and Jones, as well as a friend of Jones, for another
proceeding against Reed. Id. at PageID.1650. Brown took her
granddaughter into the courtroom while Jones and her friend went to speak

to the prosecutor. Id. Jones apparently told the prosecutor she was unable
to provide implicating testimony against Reed, preventing the prosecution
from proceeding with its probable cause hearing against Reed. Id. at

PageID.1650-51. Brown and her granddaughter prepared to leave the
courthouse, believing Jones and her friend had already exited. Id. at
PageID.1651. As Brown was walking out, the prosecutor began to yell that

she was bothering Jones. Id. Brown saw Reed’s attorney entering the
courtroom, so she decided to go back inside. Id. While sitting in the
courtroom, Shingleton and/or Dhooge1 confronted her, alleging that she
had not been visiting her granddaughter the day they saw her with Jones

because the granddaughter had been at school. Id. at PageID.1652.
Shingleton and/or Dhooge left the courtroom. Id.
Approximately five minutes later, at 9:50 a.m., Willoughby and Knapp

entered the courtroom and arrested Brown for witness intimidation. Id.
Brown was transported and booked into the Flint City jail and later
transferred to Genesee County jail. Id. at PageID.1653. Brown was
released on September 18, 2018, some ninety-six hours after her arrest. Id.

Brown, who never had a probable cause hearing, was released “pending
further investigation” “per Singleton [sic] MSP.” Id.

1 Brown believes that Shingelton was in the courtroom on September 14th,
but the MSP defendants contend that only Dhooge was present in court
that day. ECF Nos. 44-3, PageID.1211; 44-5, PageID.1244.
Brown alleges that, as she was being released, she was subject to a
strip search by a Genesee County deputy. Id. In her operative complaint,

she identified and named Mackenzie Rose as the guard conducting the
strip search, but Brown testified at deposition that she could remember no
distinguishing physical characteristics of the guard who allegedly strip

searched her. ECF No. 43-2, PageID.983. Brown testified that she did not
“think [the guard] was any taller than her, at 5’6”.” Id. at PageID.983-84.
When asked if the guard had a heavier, slender, or regular build, Brown
responded that “[s]he wasn’t heavy.” Id. at PageID.984. Brown could not

indicate her hair color, or any identifying feature such as glasses, jewelry,
tattoos, moles, or markings. Id.
III. Analysis

A. Standard of Review
When a party files a motion for summary judgment, it must be
granted “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). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to particular
parts of materials in the record . . .; or (B) showing that the materials cited

do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1). The standard for determining whether summary

judgment is appropriate is 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. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986)). Additionally, the evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).

Where the movant establishes the lack of a genuine issue of material
fact, the burden of demonstrating the existence of such an issue shifts to
the non-moving party, who must come forward with “specific facts showing

that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). That is, the party opposing a motion for summary
judgment must make an affirmative showing with proper evidence and must
designate specific facts in affidavits, depositions, or other factual material

showing “evidence on which the jury could reasonably find for the [non-
movant].” Anderson, 477 U.S. at 252. However, mere allegations or denials
in the non-movant’s pleadings will not satisfy this burden, nor will a mere

scintilla of evidence supporting the non-moving party. Id. at 248, 251.
If the nonmoving party fails to make a sufficient showing on an
essential element of its case with respect to which it has the burden of

proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at
323. The court must construe Rule 56 with due regard not only for the
rights of those “asserting claims and defenses that are adequately based in

fact to have those claims and defenses tried to a jury,” but also for the
rights of those “opposing such claims and defenses to demonstrate in the
manner provided by the Rule, prior to trial, that the claims and defenses
have no factual basis.” Id. at 327.

B. Detention without Probable Cause Determination
Brown asserts that her Fourth Amendment rights were violated when
the defendants detained her, first in the Flint City lock-up and then in the

Genesee County jail, for roughly ninety-six hours before releasing her
without a probable cause hearing. “The Fourth Amendment requires a
timely judicial determination of probable cause as a prerequisite to
detention.” Gerstein v. Pugh, 420 U.S. 103, 126 (1975). “[J]udicial

determinations of probable cause within 48 hours of arrest” generally
comply with that promptness requirement; when “an arrested individual
does not receive a probable cause determination within 48 hours, . . . the

burden shifts to the government to demonstrate the existence of a bona
fide emergency or other extraordinary circumstance.” County of Riverside
v. McLaughlin, 500 U.S. 44, 56-57 (1991).

Here, Brown’s ninety-six-hour detention exceeded the permissible
holding period. She advances a Section 1983 claim challenging the
excessive detention without a probable cause determination, also known as

a Riverside violation, against the MSP defendants who apprehended her
and took her into custody without a warrant, as well as the Genesee
County defendants who, pursuant to a county policy permitting release of
detainees only upon the instruction of the arresting agency or the court,

continued to detain Brown well after the permissible forty-eight-hour period.
1. MSP Defendants
The MSP defendants, acknowledging a Riverside violation, move for

summary judgment, asserting that qualified immunity shields them from
liability to Brown. ECF No. 44. Specifically, they argue that they are
collectively entitled to qualified immunity because they did not intentionally
violate Brown’s right for a prompt probable cause determination and that

their conduct did not violate clearly established constitutional rights of
which a reasonable person would have known. Id. The Court disagrees.
Courts employ a two-tiered inquiry in analyzing a defendant’s

assertions of qualified immunity. Courtright v. City of Battle Creek, 839 F.3d
513, 518 (6th Cir. 2016). “The first step is to determine if the facts alleged
make out a violation of a constitutional right. The second is to ask if the

right at issue was ‘clearly established’ when the event occurred such that a
reasonable officer would have known that his conduct violated it.” Id.
(quoting Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir.

2013)) (internal marks omitted). These inquiries may be addressed in any
order, but both must be resolved in the affirmative for the plaintiff's claim to
survive. Id. “If either step is not satisfied, then qualified immunity shields the
government officer from civil damages.” Id. Evaluating the defense of

qualified immunity on a motion for summary judgment requires the court to
adopt the plaintiff's version of the facts. Drogosch v. Metcalf, 557 F.3d 372,
377 (6th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372 (2007)) (marks

omitted).
The MSP defendants assert that their limited involvement with
Brown’s detention did not require them to ensure that Brown received a
prompt probable cause hearing. But courts “look to state law to determine

who is responsible for ensuring that a judicial determination of probable
cause is made within 48 hours after an arrest.” Cherrington v. Skeeter, 344
F.3d 631, 644 (6th Cir. 2003); see also Drogosch, 557 F.3d at 379.

Michigan law provides that
[a] peace officer who has arrested a person for an offense
without a warrant shall without unnecessary delay take the
person arrested before a magistrate of the judicial district in
which the offense is charged to have been committed, and shall
present to the magistrate a complaint stating the charge against
the person arrested.

Drogosch, 557 F.3d at 379 (quoting M.C.L. 764.13) (internal quotation marks
omitted). State law thus indicates that the arresting officer(s) must take a
warrantless detainee before a magistrate. Id.
Here, the MSP defendants admit that Dhooghe was instructed by the
prosecutor to arrest Brown for witness intimidation. ECF No. 44-3,
PageID.1211-1212. Dhooghe, who was dressed for his court appearance
and without handcuffs, asked his supervisor, Willoughby, to make the
arrest. Id. at PageID.1223. Willoughby, along with Knapp, arrested Brown
at the 67th District Court and transported her to the Flint Police
Department. ECF Nos. 44-7, PageID.1282-83, 44-8, PageID.1290.

Shingleton authored a supplemental police report detailing Brown’s alleged
witness intimidation and her arrest. ECF No. 41, PageID.534. The parties
dispute whether Shingleton was present at the hearing or arrest on
September 14, 2018. ECF No. 44, PageID.1132, n.4. During Brown’s

detention, Shingleton also took over for Dhooghe, who had transferred out
of the unit responsible for the Reed investigation,2 and, according to
Brown, received the reports from Genesee County jail indicating that Brown

remained in custody without a warrant or probable cause hearing for well
beyond forty-eight hours.3 The MSP defendants do not contend that they
applied for a warrant or took any action toward securing a probable cause

hearing for Brown. ECF No. 44.
Despite the MSP defendants’ subjective beliefs that they were not
Brown’s arresting officers, on this record, some combination of the MSP
defendants, or perhaps all of them, are officers who arrested Brown without

a warrant and, as such, were obligated to secure a probable cause hearing
within forty-eight hours of detaining her. Drogosch, 557 F.3d at 379;
Cherrington, 344 F.3d at 644. Brown’s alleged facts show the MSP

defendants’ conduct violated her constitutional right.
“An officer cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite that any reasonable
official in [his] shoes would have understood that he was violating it,

2 ECF No. 44-3, PageID.1213-14.
3 Brown cites to pages 81-82 of Jason Gould’s deposition, but these pages
are not attached to the briefing. The emails listing warrantless arrests sent
by Genesee County to the arresting agencies do not appear to have been
sent to Shingleton (or any of Brown’s arresting officers) directly, but they
were sent to other MSP recipients. ECF No. 41-6, PageID.794-97.
meaning that existing precedent placed the statutory or constitutional
question beyond debate.” City and County of San Francisco v. Sheehan,

575 U.S. 600, 611 (2015) (internal quotations and marks omitted). Courts
“must not define clearly established law at a high level of generality, since
doing so avoids the crucial question whether the official acted reasonably in

the particular circumstances that he or she faced.” D.C. v. Wesby, 138 S.
Ct. 577, 590 (2018). Conversely, a “plaintiff need not always put forth ‘a
case directly on point’ to show that his claimed rights were indeed clearly
established at the time of the conduct.” Shumate v. City of Adrian, Mich., 44

F.4th 427, 449 (6th Cir. 2022) (quoting Rivas-Villegas v. Cortesluna, 142 S.
Ct. 4, 7 (2021)). “Plaintiff need not show that the very action in question has
previously been held unlawful, but in light of pre-existing law, the

unlawfulness of the official action must be apparent.” Id. (internal quotation
and marks omitted).
The Sixth Circuit recognized that, as of 2003, arresting officers are on
notice that they are responsible for safeguarding defendants’ right to a

probable-cause hearing within forty-eight hours. See Rayfield v. City of
Grand Rapids, 768 F. App’x 495, 509 (6th Cir. 2019) (citing Cherrington,
344 F.3d at 644)). Nevertheless, the MSP defendants argue that

Cherrington and Drogosch are not sufficiently particularized to establish
Brown’s rights in these circumstances as clearly established. ECF No. 44,
PageID.1150-52. Citing the Sixth Circuit’s recent unpublished decisions in

Rayfield and Roberson v. Wykoop, they argue that the “unique” facts of
Brown’s case sufficiently distinguish it from Drogosch and Cherrington so
as to undermine the clearly established nature of Brown’s right to be free of

detention without a timely probable cause hearing. Rayfield, 768 F. App’x
at 508; Roberson, 2021 WL 5190902 (6th Cir. Nov. 9, 2021). The Court
finds these cases distinguishable and the MSP defendants’ argument
unavailing.

First, in Rayfield, the plaintiff alleged that the arresting officers caused
his three-day detention without a probable cause hearing by failing to note
the length of his detention in the Grand Rapids lock-up to county officials

upon his transfer to the Kent County jail. 768 F. App’x at 508. The court
ruled the officers were entitled to qualified immunity because “this right was
not ‘clearly established’ as applied to Rayfield's case.” Id. at 509 (emphasis
added).

Although we have recognized that … officers are on notice that
defendants have a right to a probable-cause hearing within 48
hours, [precedent] does not deal with the factually and legally
distinct situation presented by Rayfield's case, namely when two
municipalities, both of which have authority to process a
detainee, jointly manage the custody of a pre-hearing detainee.
Id. (internal citation omitted). In contrast here, Brown alleges that the
arresting officers committed a conventional Riverside violation by failing to

take any action that would result in a prompt hearing before a magistrate
judge to determine if her arrest was supported by probable cause. ECF No.
49, PageID.1655, ¶ 63. As was clearly established by Drogosch and

Cherrington, Brown’s arresting officers were obligated to present her to the
magistrate judge to assess probable cause for her warrantless arrest.
Drogosch, 557 F.3d at 379-380; Cherrington, 344 F.3d at 644.
The court’s ruling in Roberson is equally inapposite. The Roberson

court granted the defendant state trooper qualified immunity based on a
lack of binding precedent to clearly establish that the trooper’s actions
violated Roberson’s Fourth Amendment rights. Roberson, 2021 WL

5190902 at *2. The court held that: “Riverside and its progeny do not
clearly establish that an officer in Trooper Wykoop's position will be liable in
particularized circumstances like these.” Id. (emphasis added).
Roberson, a felon, was arrested when Wykoop, responding to a

domestic dispute call, discovered a firearm and drug paraphernalia in the
residence based on information from the reporting girlfriend. Id. at *1.
Wykoop booked Roberson into the Saginaw County jail in the early hours

of October 5th and requested a search and arrest warrant on the morning
of October 6th. Id. The prosecutor signed the warrants that same day, but a
judicial officer did not hold a probable cause hearing or execute the arrest

warrant until the morning of October 7th, a few hours beyond the forty-
eight-hour window. Id. Notably, Roberson did not dispute that there was
probable cause for his arrest, and he eventually pleaded guilty to several

charges for drugs and possession of a firearm. Id.
The court noted that “once the report and warrant packet is placed in
the in-custody bin, it is out of [the arresting officer’s] hands and in the
hands of the court officer, who then would handle getting the local

prosecutor to review the request.” Id. (internal marks omitted). On these
facts, the court determined “it was not objectively unreasonable for
Wynkoop to expect the process to occur in a timely manner as it normally

does” and granted him qualified immunity for any violation of Roberson’s
Fourth Amendment rights. Id. at *3.
In the case at bar, Brown contests that there was probable cause to
arrest her, and no criminal charges were filed against her. Crucially, the

MSP defendants admit that they never requested a warrant for Brown’s
arrest or took any action relating to Brown or her detention after depositing
her in lock-up. ECF Nos. 44-3, PageID.1219, 44-7, PageID.1283-84, 44-8,

PageID.1292. Under the Riverside progeny, specifically Drogosch and
Cherrington, the arresting officers’ obligation to make some effort to secure
a probable cause hearing within forty-eight hours of detention was clearly

established. See Drogosch, 557 F.3d at 379-380 and Cherrington, 344
F.3d at 644.
Even under Roberson, the MSP defendants’ complete lack of effort in

presenting Brown for a probable cause hearing within forty-eight hours was
objectively unreasonable and outside the protection of qualified immunity.
The Court rejects MSP defendants’ argument that the underlying facts and
circumstances of this case are so particularized to be outside the bounds of

clearly established authority. As noted above, a “[p]laintiff need not show
that ‘the very action in question has previously been held unlawful, but in
light of pre-existing law, the unlawfulness of the official action] must be

apparent.’” Shumate, 44 F.4th at 449-50 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
In sum, the Court finds that Brown experienced a Riverside violation
and that the MSP defendants’ obligation, as arresting officers, to take

action to obtain a probable cause determination for Brown within forty-eight
hours was clearly established. Accordingly, qualified immunity does not
apply and the MSP defendants’ motion for summary judgment on Brown’s

Fourth Amendment claim is denied.
Notwithstanding the Court’s finding that the MSP defendants
collectively violated Brown’s clearly established Fourth Amendment right to

a prompt probable cause determination, the complicated factual scenario
surrounding Brown’s arrest precludes granting her motion for partial
summary judgment. Given the MSP defendants’ fragmented participation in

Brown’s arrest, the question of which of the MSP defendants bear
responsibility for the Riverside violation as an arresting officer must be
presented to the jury.
2. Genesee County Defendants

Brown asserts that by failing to release her from jail within forty-eight
hours after she was arrested without a warrant or a probable cause
hearing, the Genesee County defendants are also liable for the Riverside

violation. The Genesee County defendants argue that the arresting officers,
here the MSP defendants, and not the jail, are responsible for securing a
warrantless arrestee’s probable cause determination and that there is no
direct authority for holding jailors liable for a Riverside violation.

To support this argument, the Genesee County defendants direct the
Court to Leschorn v Fitzgerald, 142 F.3d 434, 1998 WL 69036 (6th Cir.
1998). In Leschorn, the plaintiff was transferred from one county’s jail to

another county’s facility due to overcrowding. 1998 WL 69036, at *2.
Plaintiff waited sixty hours for his probable cause hearing and sued the
transferee jailor under Section 1983 for the Riverside violation. Id. Based

on the overwhelming body of law that the person effecting a warrantless
arrest of a suspect, i.e., the arresting officer, is the individual responsible
for promptly delivering the arrestee to a probable cause hearing and the

lack of authority deeming jailors liable for a Riverside violation, the court
declined to hold the transferee jail accountable for the delayed hearing. Id.
In so ruling, the court found that, “[b]y passing [the detainee’s] request for a
hearing on to the proper Harrison County authorities, the Carroll County

defendants did all that they could reasonably be expected to do in this
situation.” Id.
Brown, citing Caddell v. Campbell, argues that officials other than

arresting officers, including jailors whose customs or policies cause a
Riverside violation, can be liable even though state law requires the
arresting officer to effect a timely probable cause hearing. 2021 WL
2176597, at *13 (S.D. Ohio May 28, 2021). Indeed, the Caddell court held

that a jailor may be liable for a Riverside violation if it “knowingly employed
customs ensuring that an arrestee would not receive a timely probable
cause hearing.” Id. (emphasis added).
Brown asserts that Genesee County is liable for the Riverside
violation at issue here based upon its policy of only releasing a warrantless

detainee if the arresting agency or the court instructs it to do so. Of course,
but for Genesee County’s continued detention after the forty-eight hours
elapsed, Brown could not have been detained for more than forty-eight

hours without a hearing. But the jail’s policy did not cause the Riverside
violation, it merely failed to prevent it. Thus, even if Caddell were binding
precedent, the Genesee County policy does not ensure an arrestee would
not receive a timely hearing; it does not impede an arresting officer from

taking the detainee before a magistrate for a probable cause determination.
The release policy itself does not subject the Genesee County defendants
to liability to Brown.

Release policy aside, the Genesee County defendants’ part in
Brown’s over-detention does not subject them to liability for her Riverside
violation. Indeed, the Genesee County jail sent daily reports to Brown’s
arresting agency, reminding it that Brown continued to be held on a

warrantless arrest without a probable cause hearing, and when those daily
reports did not generate any action, the jail contacted Shingleton, who
authorized Brown’s release. ECF No. 41-6, PageID.768, 794-97. Like the
jailors in Leschorn, the Genesee County defendants “did all that they could
reasonably be expected to do in this situation.” 1998 WL 69036, at *2.

C. Malicious Prosecution
Courts recognize “a separate constitutionally cognizable claim of
malicious prosecution under the Fourth Amendment based on a defendant

officer’s wrongful investigation, prosecution, conviction, and incarceration of
a plaintiff.” DiPasquale v. Hawkins, 748 F. App’x 688, 693 (6th Cir. 2018)
(quoting Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006) (quotation
marks omitted)). “The ‘tort of malicious prosecution’ is ‘entirely distinct’ from

that of false arrest, as the malicious-prosecution tort ‘remedies detention
accompanied not by absence of legal process, but by wrongful institution of
legal process.’” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010)

(quoting Wallace v. Kato, 549 U.S. 384, 390 (2007) (emphasis in original)).
As discussed at length previously, the gravamen of Brown’s complaint was
her detention without any probable cause determination or, in other words,
the absence of legal process.

In any event,
[t]o succeed on . . . a [malicious prosecution] claim, a plaintiff
must establish that (1) a criminal prosecution was initiated
against the plaintiff and that the defendant made, influenced, or
participated in the prosecution decision; (2) there was no
probable cause to support the charges; (3) as a result of the legal
proceedings, the plaintiff suffered a deprivation of liberty apart
from the initial seizure; and (4) the criminal proceedings ended
in the plaintiff’s favor.

DiPasquale,747 F. App’x at 693 (quoting Miller v. Maddox, 866 F.3d 386,
389 (6th Cir. 2017)). Here, Brown’s claim for malicious prosecution fails as
a matter of law under the first element; no criminal prosecution was initiated
against her.
D. Strip Search (Defendant Rose)

Defendant Rose asserts that Brown has not presented sufficient
evidence that Rose was the officer who conducted the alleged strip search.
An officer’s liability must be based upon his or her own direct actions.
Dorsey v. Barber, 517 F.3d 389, 399 n.4 (6th Cir. 2008) (citing Ghandi v.

Police Dep’t of City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984)). To
survive summary judgment, the non-moving party must provide evidence
on which a jury could reasonably find for the non-movant. Bard v. Brown

County, 916 F.3d 738, 748 (6th Cir. 2020).
Other than describing her as a Caucasian female, Brown could not
name a single other identifying feature for the officer who allegedly strip
searched her. ECF No. 42-3, PageID.983-84. She indicated that the officer

was not taller than 5’6” and did not have a heavy build. Id. In contrast to
Brown’s general descriptions of the searching officer as not taller than
medium height and not heavy, at the hearing, counsel noted Rose is
remarkably petite, even child-like in appearance. Transcript of Hearing,
8/11/22, p. 34.

Brown attempts to salvage her claim against Rose with an affidavit
indicating that, once she observed Rose during her deposition (via Zoom),
she immediately recognized her as the guard who strip searched her. ECF

No. 57-2, PageID.1928-29. Brown’s “affidavit is, at best, self-serving and it
is well established that such ‘[s]elf-serving affidavits alone are not enough
to create an issue of fact sufficient to survive summary judgment.’”
Diversicare Leasing Corp. v. Eden, 2022 WL 3974242, at *4 (E.D. Ky. Aug.

31, 2022) (quoting Capital Telecom Holdings, II LLC v. Grove City, 403 F.
Supp. 3d 643, 649 (S.D. Ohio 2019)). Without the bootstrap of her self-
serving affidavit, Brown’s lack of evidence that Rose conducted the alleged

strip search does not warrant submission to a jury. The Court finds
summary judgment in favor of Rose is appropriate.4
IV. Conclusion
For these reasons, MSP defendants’ motion for summary judgment

(ECF No. 44) is DENIED. Brown’s motion for partial summary judgment

4 As noted at the hearing, any claim against the County relating to the strip
search was dismissed or abandoned.
(ECF No. 41) is DENIED. Genesee County defendants’ and Rose’s
motions for summary judgment (ECF Nos. 43, 45, 68) are GRANTED.

s/Shalina D. Kumar
SHALINA D. KUMAR
United States District Judge
Dated: September 28, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10219332. Public record. Not legal advice.