Bickerstaff v. Cuyahoga County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Brenda Bickerstaff, Case No. 1:18cv1142

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

Magistrate Judge Thomas M. Parker

Cuyahoga County, et al.,

Defendants MEMORANDUM OPINION AND

ORDER

On April 26, 2022, Magistrate Judge Thomas Parker issued a Report & Recommendation that

the Motion for Summary Judgment of Defendants City of Cleveland Police Officers Daniel

McCandless, Delonzo Goshen, Donald Nuti, and Timothy McKenzie (hereinafter “the Officer

Defendants”) be granted in part and denied in part. (Doc. No. 207.) Defendant McCandless filed an

Objection (Doc. No. 212) on May 10, 2022. Plaintiff Brenda Bickerstaff did not file an Objection

but did file a pro se response to Defendant McCandless’ Objection. (Doc. No. 213.)

For the following reasons, the Magistrate Judge’s Report & Recommendation (Doc. No. 207)

is ADOPTED IN PART and REJECTED IN PART. The Court REJECTS the Report &

Recommendation to the extent it recommends that Defendant McCandless be denied qualified

immunity with respect to Plaintiff’s federal malicious prosecution claim. The Court ADOPTS the

Report & Recommendation in all other respects, as set forth below. Accordingly, Defendant

McCandless’ Objection is GRANTED and the Officer Defendants’ Motion for Summary Judgment

(Doc. No. 187) is GRANTED.

I. Facts1

Plaintiff Brenda Bickerstaff (“Bickerstaff”) is a private investigator who works for private

criminal defense lawyers in Northeast Ohio. (Affidavit of Brenda Bickerstaff (Doc. No. 101-1) at ¶

1, PageID# 761.) See also Bickerstaff Depo. (Doc. No. 191-1) at Tr. 8. The majority of her

investigations occur in Cuyahoga County, Ohio. (Bickerstaff Aff. (Doc. No. 101-1) at ¶ 1.)

Bickerstaff believes that her investigative work “has caught the attention of the prosecutors and police

officers, which [she believes] has caused her [to be] harassed and intimidated by them making false

allegations to the court when she investigates cases.” (Doc. No. 101 at ¶ 19.) Over the years, she has

filed complaints against multiple City of Cleveland Police Officers because of her concerns of

harassment. (Doc. No. 191-1 at PageID# 1604.)

Of particular note, in November 2013, Bickerstaff sent a letter to the City of Cleveland’s

Office of Professional Standards in which she complained about Defendant herein, Cleveland Police

Officer Daniel McCandless. (Doc. No. 101 at ¶ 11; Doc. No. 101-1 at PageID#s 755-756.)

Specifically, Bickerstaff asserted that Officer McCandless was “always following behind” her and

behaving like a “bully” in order to try to stop her from investigating cases.2 (Doc. No. 101-1 at

PageID#s 755-756.) Bickerstaff also, at some point, made a complaint against Defendant Cleveland

Police Officer Delonzo Goshen. (Doc. No. 192-3 at PageID# 1630.)

1 Defendant McCandless objects to several of the Magistrate Judge’s factual findings. (Doc. No. 212 at pp. 3-5.)

Accordingly, this Court has reviewed the summary judgment record de novo and sets forth its own recitation of the facts,

infra.

2 Neither party has directed this Court’s attention to any clear evidence regarding whether Bickerstaff’s complaint was

investigated and, if so, the results of that investigation. In her deposition, Bickerstaff stated only that “it took them [i.e.,

the City of Cleveland] almost two years to even reply” to her complaint. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 64.)

However, she then testified that “they still didn’t even reply to the complaint.” (Id.) During Bickerstaff’s criminal trial

proceedings, Officer Candless testified that he was unaware that she had “written him up.” (Doc. No. 192-1 at Tr. 88,

PageID# 1623.)

2

In the fall of 2015, Bickerstaff was sharing her vehicle (a 2010 Nissan) with her son, Edward

Bickerstaff (“Edward”). (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 10-11.) Bickerstaff alleges that,

at that time, Edward was a security guard, owned a registered firearm for work, and had a Concealed

Carry Weapons (“CCW”) permit. (Doc. No. 101 at ¶ 10; Bickerstaff Aff. (Doc. No. 101-1) at ¶ 3,

PageID# 761.) Bickerstaff did not have a CCW permit. (Doc. No. 192-2.) It is undisputed that she

has a prior felony conviction. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 39; Doc. No. 191-1 at

PageID# 1605.)

On November 11, 2015, Edward had been using the Nissan. That evening, he dropped the

Nissan off with Bickerstaff at her residence in Cleveland, at which point she “ran outside, grabbed

the keys, jumped in the car and drove off.” (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 11.)

Bickerstaff drove to Severance Center to receive payment from the wife of a client. (Id. at Tr. 11-

13.) She then drove to a Family Dollar where she made a purchase, after which she decided to return

home to get some more money. (Id. at Tr. 13-15, 33-34.)

At approximately 8:00 p.m., Officer McCandless and his partner, Officer Matthew

McKinney,3 initiated a traffic stop of Bickerstaff’s vehicle. (McCandless Decl. (Doc. No. 187-1) at

¶¶ 2-3.) Bickerstaff pulled over and stopped her vehicle at the side of a residential road. (Id. at ¶ 5.)

She was the only occupant of the vehicle. (Id. at ¶ 7.) Officer McCandless parked the patrol car

3 In her Amended Complaint, Bickerstaff alleges that Cleveland Police Officer Timothy McKenzie was present at the

traffic stop and names him as a Defendant herein. (Doc. No. 101.) However, during her deposition, Bickerstaff testified

that Officer McKenzie was not, in fact, present at the traffic stop and that she named him as a defendant because she

confused his name with that of Officer McKinney. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 43-44.) Bickerstaff agreed

that “Officer McKenzie wasn’t there. He’s not a part of this litigation.” (Id.)

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behind Bickerstaff’s vehicle. (Id. at ¶ 5.) Both Officer McCandless and Officer McKinney turned

on their wearable body cameras. 4 (Id.)

The video footage shows the following. Officer McCandless approached the driver’s side of

Bickerstaff’s vehicle with a flashlight, while Officer McKinney approached the passenger side.

(Video File A1 at 0:42; Video File A2 at 00:40.) Officer McCandless said to Bickerstaff: “You got

your headlights on now? Because you had them off the whole time you were going down St. Clair.”5

(Video File A1 at 00:42 - 00:47.) Bickerstaff said, “all right.” (Id. at 00:50.) Officer McCandless

then asked her to provide her driver’s license and proof of insurance. (Id. at 00:58-00:59.) While

Bickerstaff was getting her proof of insurance, Officer McCandless shined his flashlight into the back

seat of her car. (Id. at 1:05.) Once Bickerstaff had produced her license and proof of insurance,

Officer McCandless and Officer McKinney proceeded back to the patrol car to process a citation.

(Id. at 1:24.) Shortly thereafter, Bickerstaff got out of her vehicle and faced the patrol car. (Id. at

1:35.) Officer McCandless told her to get back into the car. (Id. at 1:36.) Bickerstaff requested that

4 Video footage from both Officers’ body cameras was manually filed with the Court in the form of a DVD. The DVD

contains three video files: (1) “A1 8920 _ Empire_ TS_Info_For_Rpt_Gun_Conf_Bickerstaff(3)mp4” (“Video File A1”);

(2) “A2_8920_Empire_Improp_Handle_Of_Firearm_In_MV_Hwwud_Gun_Arst(2).mp4 (“Video File A2”); and (3)

“A3_8920_Empire_Improp_Handle_Of_Firearm_In_MV_Hwwud_Gun_Arst_Redacted(1).mp4” (“Video File A3”).

Video File A1 is Officer McCandless’ body footage. Video Files A2 and A3 are Officer McKinney’s body camera

footage. In addition, the parties submitted (1) Declarations from Officer McCandless, Officer Goshen, and Detective

Nuti (Doc. Nos. 187-1, 187-2, 187-3); (2) Bickerstaff’s deposition transcript (Doc. No. 191-1); (3) Bickerstaff’s Affidavit

(Doc. No. 101-1 at PageID#s 761-762); (4) Bickerstaff’s interrogatory responses (Doc. No. 187-9); and (5) excerpts from

Bickerstaff’s criminal proceedings (Doc. Nos. 191-1 at PageID#s 1604-1606, 192-1, 192-3, 195-1.)

5 The parties dispute whether Bickerstaff was, in fact, driving with her headlights off. Bickerstaff testified during her

deposition that her headlights were on, both while she was driving and when she was pulled over. (Bickerstaff Depo.

(Doc. No. 191-1) at Tr. 35-36.) Officer McCandless, on the other hand, avers that Bickerstaff had been driving with her

headlights off and, further, that her headlights were initially off when he pulled her over. (McCandless Decl. (Doc. No.

187-1) at ¶¶ 3, 7.) He avers that, after he approached her car and told her she had been driving with her headlights off,

Bickerstaff “then clicked on her front headlights for the vehicle.” (Id. at ¶ 7.) The video footage does not show whether

Bickerstaff’s headlights were on prior to the traffic stop. The footage does appear to show Bickerstaff turning her

headlights on after Officer McCandless tells her that she had been driving with her headlights off. See Video File A2 at

00:41 to 00:46; Video File A1 at 00:42 to 00:47.

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a supervisor be called to the scene and returned to her vehicle. (Id. at 1:35- 1:37.) Officer

McCandless can then be heard calling dispatch to convey Bickerstaff’s request for a supervisor.6 (Id.

at 2:10.)

During her deposition, Bickerstaff testified that, after she returned to her vehicle, she reached

around to retrieve her recording device, which was in a bag in the back seat. (Bickerstaff Depo. (Doc.

No. 191-1) at Tr. 49.) She testified that, as she did so, she “hit something hard.” (Id.) Bickerstaff

explained that she then looked in the back seat, noticed Edward’s rifle bag, and realized that Edward

had left his weapon in the car. 7 (Id.) She contacted her son immediately. (Id.) Throughout her

deposition, Bickerstaff was adamant that she was not aware that either the rifle bag or the weapon

was in the vehicle until that moment. (Id. at Tr. 15, 19, 31-32.)

Meanwhile, the body cam footage shows Officers McCandless and McKinney return to

Bickerstaff’s vehicle. Officer McCandless advised Bickerstaff that his supervisor was coming to the

scene. (Video File A3 at 00:42- 00:47.) He also informed Bickerstaff that her driver’s license was

suspended. (Id.) Bickerstaff stated that she was not aware of that. (Id. at 00:47 to 00:57.) Officer

McCandless then asked Bickerstaff: “Is that a rifle in the back?” (Id. at 00:57-00:58.) Bickerstaff

6 At this point, Officer McCandless turned off his body camera and Officer McKinney muted the microphone of his

camera. Officer McKinney later turned his microphone back on. The remaining body camera footage of Bickerstaff’s

traffic stop is from Officer McKinney’s body camera and is labeled Video File A3.

7 Officer McCandless avers that, while he was in his patrol car, he saw Bickerstaff reach into the back seat area of her

vehicle. (McCandless Decl. (Doc. No. 187-1) at ¶ 9.) He further avers that Officer McKinney asked him, “Was that a

rifle bag in the back seat?” (Id.) Officer McCandless avers that he then “confirmed that I saw it in plain sight as well

and thought that it was a firearm.” (Id.) Officer McCandless avers that he “then conferred with the assigned CPD

Supervisor, Sgt. Gill, by radio from inside the zone car.” (Id.) Neither Officer McKinney’s question about the rifle bag,

Officer McCandless’ response, or Officer McCandless’ conversation with Sergeant Gill are captured by any of the video

footage submitted in this action.

5

responded “That’s my son’s,” to which Officer McCandless replied “That’s your son’s, but it’s in

your car.” (Id. at 00:59 to 01:00.) The video footage then captures the following exchange:

McCandless: Is that a loaded weapon back there? Because I saw you hide it.

Bickerstaff: No, you didn’t see me hide it. I pulled my bag over to the front…

[inaudible]

McCandless: You put the coats over it. Because when we pulled up, it was clearly

visible. And even my partner said, is that a rifle in there? Okay, and

when we went back to the car, I saw you reach back there….

Bickerstaff: Sir. . . to pull my bag….

McCandless: ….and now you have several things covering it.

(Id. at 01:00 to 01:24.) Officer McCandless then asked whether the gun was loaded, to which

Bickerstaff responded that she would have to call her son to ask. (Id. at 01:25 – 01:33.) Officer

McCandless stated, “I’m going to check it for our safety, I’m going to check it, okay?” (Id. at 01:34

- 01:36.) Bickerstaff responded “okay.” (Id. at 01:37.) As Officer McCandless removed the rifle

bag from the back seat, he asked Bickerstaff whether there were any other weapons in the vehicle.

(Id. at 01:37 – 01:42.) Bickerstaff responded “Yeah, I didn’t know he had it in there.” (Id. at 01:42-

01:44.) When Officer McCandless asked if she knew what kind of weapon it was, Bickerstaff stated

“as far as I know it’s a shotgun. It’s for his job.” (Id. at 01:44 – 01:51.)

The Officers returned to their vehicle, where Officer McCandless took a shotgun out of the

rifle bag and unloaded seven shells from it. (Id. at 01:51-02:57.) Officer McCandless can be heard

identifying the shotgun as a 12-gauge Mossberg. (Id. at 03:13 – 03:48.) He called in the information

on the shotgun to dispatch, including the weapon’s serial number. (Id.) After some time, additional

officers arrived at the scene, including Defendant Officer Delonzo Goshen and his partner Officer

Aarius Waters. (Id. at 08:00-08:06.) See also Goshen Decl. (Doc. No. 187-2) at ¶ 3. Officer

6

McKinney explained to one of the arriving officers that they had pulled Bickerstaff over for not

having her lights on, later determined that her license was under suspension, and then saw her moving

around in the vehicle and suspected she’d tried to hide something. (Video File A3 at 08:06-08:30.)

Officer McKinney then re-entered the patrol car. (Id. at 10:49-10:54.) Inside the car, radio

dispatch could be overhead stating that their search did not reveal any felonies listed on Bickerstaff’s

record. (Id. at 10:54-11:13.) Officer McCandless then walked towards Bickerstaff’s car and told her

that she was in the possession of a concealed weapon. (Id. at 11:44-12:02.) Bickerstaff responded

that her son had just used her car. (Id. at 12:06-12:10.) Officer McCandless replied that the gun was

in her possession and that she could not have a loaded firearm inside a vehicle “like that.” (Id. at

12:12-12:16.) Officer McCandless also repeated that she was driving under suspension, to which

Bickerstaff responded that she did not know she was driving under suspension. (Id. at 12:16-12:28.)

Officer McCandless then asked Bickerstaff if she had any felony convictions, to which she responded,

“Yeah, I do. You know I do. You know I wrote you up. You’re the one I wrote up last year for

following me.” (Id. at 12:28-12:38.) Officer McCandless asked her to get out of the vehicle, placed

her in handcuffs, placed her in the patrol car, and advised her of her Miranda rights. (Id. at 12:38-

13:58.)

As Officer McKinney was sitting in the patrol car preparing the traffic citation, Bickerstaff

can be heard complaining about her handcuffs and stating, “you’re not going to get away with this.”

(Id. at 16:47 – 17:03.) The ensuing conversation between Bickerstaff and Officer McCandless is

difficult to hear. At one point, however, Officer McCandless can be heard telling Bickerstaff that he

knew her only by reputation and that he stopped her because her headlights were off, she was under

suspension, and she tried to hide something in the backseat. (Id. at 18:25-18:35.) Bickerstaff

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explained that she had a bag in the back seat with a recording device, and that’s what she was reaching

for. (Id. at 18:35-19:07.) She again stated that her son had left the gun in the back seat. (Id. at 19:07-

19:13.) Officer McCandless stated that it did not matter because she was still a felon in possession.

(Id. at 19:13-19:23.) At some point, Edward appeared at the scene.8 Officer Goshen then transported

Bickerstaff to central booking “because she seemed hostile to the arresting officers.” (Goshen Decl.

at ¶ 5.)

Defendant City of Cleveland Police Detective Donald Nuti was assigned to investigate

Bickerstaff’s arrest. (Nuti Decl. (Doc. No. 187-3) at ¶ 2.) As part of his investigation, Detective

Nuti confirmed that Bickerstaff had a prior felony conviction for assault on a peace officer. See State

of Ohio v. Bickerstaff, Cuyahoga County Court of Common Pl. Case No. CR-95-332489.9 He then

consulted with a prosecutor and a grand jury packet was completed. (Nuti Decl. (Doc. No. 187-3) at

¶ 3.) Bickerstaff was released from jail on November 13, 2015. (Bickerstaff Depo. (Doc. No. 191-

1) at Tr. 54.)

On November 19, 2015, Bickerstaff was charged in Cleveland Municipal Court with driving

without headlights, driving under suspension, and displaying fictitious plates. See State of Ohio/City

of Cleveland v. Bickerstaff, Case No. 2015 TRD 045565 (Cleve. Muni. Ct.) See also Doc. No. 187-

7; Bickerstaff Depo. (Doc. No. 191-1) at Tr. 54-55. In May 2016, she pled no contest to driving

under suspension. (Id.) The remaining traffic charges were dismissed on the prosecutor’s motion.

(Doc. No. 187-7.)

8 At approximately the 20:00 minute mark of Video File A3, Bickerstaff indicated, “That’s my son right there.” (Id. at

19:53-19:54.)

9 In both her discovery responses and deposition, Bickerstaff acknowledges that she has a prior felony conviction. See

Doc. No. 187-9 at PageID# 1468; Bickerstaff Depo. (Doc. No. 191-1) at Tr. 39.

8

Meanwhile, on November 20, 2015, the Cuyahoga County Prosecutor’s Office presented

felony charges against Bickerstaff to a grand jury, supported by testimony from Detective Nuti. (Nuti

Decl. (Doc. No. 187-3) at ¶ 4.) Bickerstaff states that the grand jury issued an indictment charging

her with: (1) having weapons under disability, in violation of Ohio Rev. Code § 2923.13(A)(2); (2)

carrying a concealed weapon, in violation of Ohio Rev. Code § 2923.12(A)(1); and (3) tampering

with evidence, in violation of Ohio Rev. Code § 2921.12(A)(1).10 (Bickerstaff Aff. (Doc. No. 101-

1) at ¶ 2, PageID# 761.) Bickerstaff’s attorney filed a motion to suppress. On April 12, 2017, the

state trial conducted a hearing on the motion, during which Officer McCandless testified.

(McCandless Decl. (Doc. No. 187-1) at ¶ 16.) The state trial court denied the motion to suppress,

finding that (1) there was evidence to support probable cause for a stop; (2) the plain view doctrine

was not negated by the use of a flashlight; and (3) driving under suspension was an arrestable

offense.11 (Doc. 195-1 at PageID#s 1681-1682.)

The state trial court subsequently conducted a bench trial on Bickerstaff’s felony charges,

during which Officers Goshen and McCandless testified. (McCandless Decl. (Doc. No. 187-1) at ¶

16; Goshen Decl. (Doc. No. 187-2) at ¶ 6.) Among other things, Officer McCandless testified that

10 The parties have not provided (or directed this Court’s attention to) copies of the state court docket sheet and/or the

indictment in Bickerstaff’s underlying felony criminal case. Nor does this Court have full and complete copies of either

the grand jury transcript, the suppression hearing transcript, and/or the bench trial transcript. Information relating to

Bickerstaff’s underlying felony case does not appear to be available on the Cuyahoga County Court of Common Pleas

website.

11 Defendants filed an excerpt from the suppression hearing. (Doc. No. 195-1 at PageID#s 1681-1682.) Therein, the state

trial court explained as follows: “The Court has heard all the evidence related to [the] defense’s motion to suppress. At

this time, I am going to deny the motion to suppress. The Court has deliberated on this and I do find at this time [that]

the evidence supports probable cause for a stop. In the plain view, use of a flashlight, it does not negate the plain view

doctrine. The fact that the officer used the flashlight to look in the back seat, I believe the case law supports that. And

also it was testified to that Ms. Bickerstaff was driving under suspension at the time. That was not in dispute by the

defense. That is an arrestable offense in and of itself. So, at this time the motion to suppress is denied.” (Id.)

9

he knew of Bickerstaff prior to the traffic stop through “talk of the district.” (Doc. 192-1 at PageID#

1622.) He testified that he might have “ran her license plate when she was driving, but I never stopped

her or had any interactions with her prior to that date.” (Id. at PageID# 1623.) Officer McCandless

further testified that he believed Bickerstaff had a felony record but he could not recall why he thought

that. (Id. at PageID# 1621.) He denied knowing that Bickerstaff filed a complaint against him. (Id.

at PageID# 1623.) Lastly, Officer McCandless acknowledged that he did not actually see Bickerstaff

covering up the rifle bag. (Id. at PageID# 1616.) Rather, he testified that he assumed that the

movement he saw from his patrol car was Bickerstaff attempting to conceal the rifle bag. (Id.)

On April 20, 2017, Bickerstaff was acquitted of all charges in the indictment. (Doc. No. 101

at ¶ 31; Doc. No. 187 at p. 9.)

II. Relevant Procedural History

A. Complaint and Rule 12 Motions

In April 2018, Bickerstaff, through counsel, filed a Complaint in the Cuyahoga County Court

of Common Pleas against (1) Cuyahoga County; (2) Cuyahoga County Prosecutor Michael O’Malley;

(3) John Doe Assistant County Prosecutors 1-2; (4) Cuyahoga County Sheriff Clifford Pinkney; (5)

the City of Cleveland; and (6) City of Cleveland Police Officers McCandless, Goshen, Nuti, and

Timothy McKenzie (hereinafter referred to as “the Officer Defendants”). (Doc. No. 1-1.) Therein,

Bickerstaff asserted the following nine claims: (1) malicious prosecution under 42 U.S.C. § 1983

(Count I); (2) “municipal liability under Monell” (Count II) (3) failure to supervise pursuant to 42

U.S.C. § 1983 (Count III) (4) “civil conspiracy to constitutional rights under 42 U.S.C. § 1983”

(Count IV); (5) failure to investigate pursuant to 42 U.S.C. § 1983 (Count V); (6) unlawful arrest

pursuant to 42 U.S.C. § 1983 (Count VI); (7) false imprisonment pursuant to 42 U.S.C. § 1983 (Count

10

VII) (8) abuse of process pursuant to 42 U.S.C. § 1983 (Count VIII) and (9) intentional and negligent

infliction of emotional distress (Count IX).

Defendants Cuyahoga County, Prosecutor O’Malley, and Sheriff Pinkney (hereinafter “the

County Defendants”) removed this action to this Court on May 17, 2018. (Doc. No. 1.) On November

26, 2018, Bickerstaff advised the Court that she intended to proceed pro se. (Doc. No. 15.) The

matter was subsequently referred to Magistrate Judge Parker for pre-trial supervision. (Doc. No. 16.)

In March 2019, the County and City of Cleveland and Officer Defendants each filed Motions

for Judgment on the Pleadings, which Bickerstaff opposed. (Doc. No. 41, 43, 67.) On August 12,

2019, the Magistrate Judge issued a Report & Recommendation, in which he recommended that the

Court grant the County Defendants’ Motion for Judgment on the Pleadings and sua sponte dismiss

the John Doe Assistant County Prosecutor Defendants. (Doc. No. 87 at pp. 16-17, 54.) He further

recommended that the Court grant the City of Cleveland and Officer Defendants’ Motion for

Judgment on the Pleadings with regard to Bickerstaff’s claims for: (1) unlawful arrest; (2) false

imprisonment; (3) abuse of process; (4) civil conspiracy (as against the City of Cleveland but not the

Officer Defendants); (5) malicious prosecution (as against the City of Cleveland and Officers Goshen,

Nuti, and McKenzie, but not Officer McCandless); (6) Monell liability (including custom-or-policy

claims, failure-to-investigate claims, and failure-to-supervise claims); and (7) emotional distress (as

against the City of Cleveland but not the Officer Defendants) (Id. at pp. 54-55.)

The Magistrate Judge recommended the City’s Motion be denied with respect to Bickerstaff’s

claims for malicious prosecution against Defendant McCandless, as well as her civil conspiracy and

emotional distress claims against the Officer Defendants. (Id. at p. 55.) Finally, the Magistrate Judge

recommended that the Court sua sponte grant Bickerstaff leave to amend (1) the malicious

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prosecution claim against Officers Goshen, Nuti, and McKenzie; (2) the abuse of process claim

against the Officer Defendants; and (3) the Monell claims against Cleveland and Cuyahoga County.

(Id.) Bickerstaff filed Objections and “Supplemental Objections” to the Report & Recommendation

on August 26, 2019, which Defendants opposed. (Doc. Nos. 90, 91, 93, 94.) The City of Cleveland

and Officer Defendants filed Objections on August 27, 2019, which Bickerstaff opposed. (Doc. No.

92, 95.)

On October 21, 2019, the Court issued a Memorandum Opinion & Order adopting the Report

& Recommendation in all material respects. (Doc. No. 97.)

Bickerstaff thereafter filed an Amended Complaint on November 12, 2019. (Doc. No. 101.)

In addition to pleading additional factual allegations, Bickerstaff added Cuyahoga County Sheriff

Frank Bova as a Defendant, and continued to name John Doe Assistant County Prosecutors 1-2 as

Defendants. (Id.) The City of Cleveland and Cuyahoga County each filed Motions to Dismiss. (Doc.

Nos. 102, 105.) Bickerstaff opposed both motions. (Doc. Nos. 107, 130.)

Shortly thereafter, on June 11, 2020, the Magistrate Judge issued a Report &

Recommendation, in which he recommended that the Court (1) grant the City of Cleveland’s and

County Defendants’ Motions to Dismiss Bickerstaff’s Monell claims; and (2) grant the County

Defendants’ Motion to Dismiss the other amended and additional claims against the County

Defendants and former Sheriff Bova. (Doc. No. 146.) Bickerstaff filed an Objection, to which the

County Defendants filed a Response in Opposition. (Doc. Nos. 148, 151.)

On September 21, 2020, the Court issued a Memorandum Opinion & Order adopting the

Magistrate Judge’s Report & Recommendation in all respects. (Doc. No. 155.) Thus, by virtue of

this decision, Defendants Cuyahoga County and the City of Cleveland were dismissed from the

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instant action. (Id. at p. 25.) Bickerstaff’s malicious prosecution, civil conspiracy, abuse of process,

and infliction of emotional distress claims remained pending against Defendant Cleveland Police

Officers McCandless, Goshen, Nuti, and McKenzie. (Id. at pp. 25-26.)

B. Summary Judgment Motion and Report & Recommendation

After multiple extensions of the discovery and dispositive motion deadlines,12 the Officer

Defendants filed a Motion for Summary Judgment on January 13, 2022 with respect to Bickerstaff’s

remaining claims. (Doc. No. 187.) Bickerstaff filed a Brief in Opposition on February 18, 2022, to

which the Officer Defendants replied on February 25, 2022. (Doc. Nos. 192, 195.) Bickerstaff

thereafter filed a Sur-Reply on March 7, 2022.13 (Doc. Nos. 196.)

On April 26, 2022, the Magistrate Judge issued a Report & Recommendation in which he

recommended that the Officer Defendants’ summary judgment motion be granted in part and denied

in part, as follows. (Doc. No. 207.) The Magistrate Judge recommended that summary judgment be

granted in favor of (1) Officers Goshen, Nuti, and McKenzie with respect to all of Bickerstaff’s

remaining claims; and (2) Officer McCandless with respect to Bickerstaff’s civil conspiracy, abuse

12 The non-expert discovery deadline was initially set for January 22, 2021. (Doc. No. 158.) The docket reflects that this

deadline was extended five times, until November 12, 2021. See Doc. Nos. 164, 171, 173, Non-Document Minute Orders

dated September 29, 2021 and October 12, 2021. In addition, the deadline for completing Bickerstaff’s deposition was

further extended until January 3, 2022. See Non-Document Minute Order dated December 6, 2021.

13 Subsequently, on March 14, 2022, Bickerstaff filed a Motion to Compel the Officer Defendants to produce the video

exhibits manually filed with the Court. (Doc. No. 197.) On March 21, 2022, Bickerstaff filed a Notice to take the

depositions of Officers McCandless, Goshen, and Nuti. (Doc. No. 201.) The Officer Defendants then filed a Motion to

Strike the Notice of Deposition on numerous grounds, including that the discovery deadline had expired in November

2021. (Doc. No. 202.) Several weeks later, on April 11, 2022, Bickerstaff filed a Motion to Secure an Expert for Video

Validation. (Doc. No. 205.) The Magistrate Judge subsequently issued Orders (1) denying Bickerstaff’s Motion to

Compel (Doc. No. 208); (2) granting the Officer Defendants’ Motion to Strike (Doc. No. 209); and (3) denying

Bickerstaff’s Motion to Secure an Expert (Doc. No. 210.) Neither party filed Objections to any of these Orders.

13

of process, and intentional infliction of emotional distress claims.14 (Id.) However, the Magistrate

Judge recommended that summary judgment be denied with respect to Bickerstaff’s malicious

prosecution claim against Officer McCandless. (Id.) Specifically, the Magistrate Judge found that

Bickerstaff would “potentially be able to establish a constitutional violation based on Officer

McCandless’ alleged misrepresentation of what happened during the traffic stop at her trial.” (Id. at

pp. 32-33.) The Magistrate Judge further found that “a reasonable trier of fact could conclude that

Officer McCandless deliberately or recklessly omitted exculpatory information or gave erroneous

information to the prosecution without with Bickerstaff would not have been prosecuted” and that

the “right violated was clearly established.” (Id. at p. 35.) He therefore recommended that the Court

find that Officer McCandless was not entitled to qualified immunity with respect to certain aspects

(discussed in more detail below) of Bickerstaff’s federal malicious prosecution claim. (Id.)

On May 10, 2022, Officer McCandless filed an Objection. (Doc. No. 212.) Bickerstaff did

not file an Objection. However, on May 10, 2022, Bickerstaff filed a Response to Officer

McCandless’s Objection in which she states that “the city’s response/objection adds nothing of

substance whatsoever” and asserts that “the Magistrate’s decision is supported by the facts and the

law and should be adopted by the court.” (Doc. No. 213.)

III. Standard of Review

A. On Objections

14 The Magistrate Judge also found that Bickerstaff “did not seek and was not given leave to amend” her Complaint to

assert § 1983 claims for false imprisonment and unlawful arrest against the Officer Defendants. (Id. at p. 18.) Thus, he

recommended that the Court find that those claims (as set forth in the Amended Complaint) were of no legal effect and

are not pending before the Court. (Id.) Bickerstaff has not raised any objection to this finding. Accordingly, and in the

absence of any objection, the Court agrees with the Magistrate Judge and finds that Bickerstaff’s false imprisonment and

unlawful arrest claims were improperly reasserted in the Amended Complaint and are not pending before this Court.

14

Pursuant to Fed. R. Civ. P. 72(b)(3) and 28 U.S.C. § 636(b)(1)(C), the District Court shall

review de novo any finding or recommendation of a Magistrate Judge's Report and Recommendation

to which specific objection is made. As explained in this Court’s Local Rules, the district judge:

shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made and may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge.

Local Rule 72.3(b). “A party who files objections to a magistrate [judge]’s report in order to preserve

the right to appeal must be mindful of the purpose of such objections: to provide the district court

‘with the opportunity to consider the specific contentions of the parties and to correct any errors

immediately.’” Jones v. Moore, 2006 WL 903199 at * 7 (N.D. Ohio April 7, 2006) (citing United

States v. Walters, 638 F.2d 947, 949-950 (6th Cir. 1981)). See also Pryor v. Erdos, 2021 WL 4245038

at * 5 (N.D. Ohio Sept. 17, 2021).

When a party fails to raise a specific objection to a finding of a magistrate judge on a

dispositive matter, “the court need only satisfy itself that there is no clear error on the face of the

record in order to accept the recommendation.” Fed. R. 72(b)(3), Advisory Committee Notes. See

also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress

intended to require district court review of a magistrate's factual or legal conclusions, under a de novo

or any other standard, when neither party objects to those findings.”)

B. Summary Judgment Standard

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). “A

dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in

favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.

15

2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”

Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the

outcome of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.

At the summary judgment stage, “[a] court should view the facts and draw all reasonable

inferences in favor of the non-moving party.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d

619, 628 (6th Cir. 2018). In addition, “the moving party bears the initial burden of showing that

there is no genuine dispute of material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 Fed.

Appx 506, 508 (6th Cir. 2014). The moving party may satisfy this initial burden by “identifying those

parts of the record which demonstrate the absence of any genuine issue of material fact.” Lindsey v.

Whirlpool Corp., 295 Fed. Appx 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary

judgment on an issue for which it does not bear the burden of proof at trial,” the moving party may

also “meet its initial burden by showing that ‘there is an absence of evidence to support the

nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once

the moving party satisfies its burden, “the burden shifts to the non-moving party who must then point

to evidence that demonstrates that there is a genuine dispute of material fact for trial.” Ask Chems.,

593 Fed. Appx at 508-09. “[T]he nonmoving party may not simply rely on its pleading, but must

‘produce evidence that results in a conflict of material fact to be solved by a jury.’” MISC Berhad v.

Advanced Polymer Coatings, Inc., 101 F. Supp.3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d

at 150).

16

There is an “added wrinkle” where, as here, there is video evidence. See Scott v. Harris, 550

U.S. 372, 378 (2007). As the Sixth Circuit has explained, “[t]o the extent that videos in the record

show facts so clearly that a reasonable jury could view those facts in only one way, those facts should

be viewed in the light depicted by the videos.” Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017)

(citing Harris, 550 U.S. at 380). However, “[t]o the extent that facts shown in videos can be

interpreted in multiple ways or if videos do not show all relevant facts, such facts should be viewed

in the light most favorable to the non-moving party.” Id. See also Godawa v. Byrd, 798 F.3d 457,

463 (6th Cir. 2015).

IV. Claims against Officers Goshen, Nuti and McKenzie

As noted above, the Magistrate Judge recommends that summary judgment be granted in

favor of Officers Goshen, Nuti, and McKenzie with respect to Bickerstaff’s malicious prosecution,

civil conspiracy, abuse of process, and intentional infliction of emotional distress claims. (Doc. No.

207.) Bickerstaff did not file an Objection.

This Court, having reviewed the Report & Recommendation and finding no clear error,

accepts the Magistrate Judge’s recommendation that summary judgment be granted in favor of

Officers Goshen, Nuti and McKenzie with respect to Bickerstaff’s malicious prosecution, civil

conspiracy, abuse of process, and intentional infliction of emotional distress claims. Accordingly,

Defendant Officers Goshen, Nuti, and McKenzie’s Motion for Summary Judgment (Doc. No. 187)

is granted with respect to these claims.

V. Claims against Officer McCandless

A. Civil Conspiracy, Abuse of Process, and IIED Claims

17

The Magistrate Judge also recommends that summary judgment be granted in Officer

McCandless’ favor with respect to Bickerstaff’s civil conspiracy, abuse of process, and intentional

infliction of emotional distress claims. (Doc. No. 207.) Bickerstaff did not file an Objection.

This Court, having reviewed the Report & Recommendation and finding no clear error,

accepts the Magistrate Judge’s recommendation that summary judgment be granted in favor of

Officer McCandless with respect to Bickerstaff’s civil conspiracy, abuse of process, and intentional

infliction of emotional distress claims. Accordingly, Defendant Officer McCandless’ Motion for

Summary Judgment (Doc. No. 187) is granted with respect to these claims.

B. Malicious Prosecution Claim—Qualified Immunity

The Magistrate Judge recommends that Officer McCandless’ Motion for Summary Judgment

be denied with respect to Bickerstaff’s malicious prosecution claim under 42 U.S.C. § 1983. (Doc.

No. 207.) Officer McCandless objects to this finding on numerous grounds. (Doc. No. 212.)

To maintain a claim under § 1983, a plaintiff must establish that he was deprived of a right

secured by the Constitution or the laws of the United States, and that the deprivation was caused by

a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Simescu v.

Emmet Cty. Dep’t of Soc. Services, 942 F.2d 372, 374 (6th Cir. 1991). Here, there is no dispute that

Officer McCandless acted under color of state law. As such, the only remaining question is whether

Bickerstaff was deprived of a right secured by the Constitution or the laws of the United States.

However, “[p]olice officers are immune from civil liability unless, in the course of performing

their discretionary functions, they violate the plaintiff’s clearly established constitutional rights.”

Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). To determine whether an officer is entitled

to qualified immunity, courts “apply a well-established two-prong test: (1) whether the facts, when

18

taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated

a constitutional right; and (2) whether the right violated was clearly established such that a reasonable

official would understand that what he is doing violates that right.” Id. These steps may be addressed

in any order, and the defendant officer need only prevail on one of them to be granted qualified

immunity. See Coffey v. Carroll, 933 F.3d 577, 584 (6th Cir. 2019); Maben v. Thelen, 887 F.3d 252,

269 (6th Cir. 2018).

With regard to the second step, “clearly established” means that the law is so clear at the time

of the incident that every reasonable officer would understand the unlawfulness of his conduct.

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). As the Supreme Court recently explained:

To be clearly established, a legal principle must have a sufficiently clear foundation

in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S.

224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam ), which means it is

dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive

authority,’ ” al–Kidd, supra, at 741–742, 131 S.Ct. 2074 (quoting Wilson v. Layne,

526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It is not enough that the

rule is suggested by then-existing precedent. The precedent must be clear enough that

every reasonable official would interpret it to establish the particular rule the plaintiff

seeks to apply. See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is

not one that “every reasonable official” would know. Id., at 664, 132 S.Ct. 2088

(internal quotation marks omitted).

The “clearly established” standard also requires that the legal principle clearly prohibit

the officer’s conduct in the particular circumstances before him. The rule’s contours

must be so well defined that it is “clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct.

2151, 150 L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix

v. Luna, 577 U.S. ----, ----, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015) (per curiam ).

We have repeatedly stressed that 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.” Plumhoff,

supra, at 2023 (internal quotation marks and citation omitted). A rule is too general

if the unlawfulness of the officer’s conduct “does not follow immediately from the

conclusion that [the rule] was firmly established.” Anderson, supra, at 641, 107 S.Ct.

3034.

19

Id. at 589-90. Thus, in evaluating whether a constitutional right was clearly established for purposes

of qualified immunity, courts “must examine the particular situation that [the defendant officers]

confronted and ask whether the law clearly established that their conduct was unlawful.” Howse v.

Hodous, 953 F.3d 402, 407 (6th Cir. 2020).

1. Bickerstaff’s Claim, the Parties’ Arguments, and the R&R

In Count I of the Amended Complaint, Bickerstaff alleges that “McCandless fabricated a

report and provided the information to supervisors and they filed the criminal complaint against

Plaintiff even though they knew the allegations were false and without probable cause.” (Doc. No.

101 at ¶ 30.) She further alleges that “the criminal proceeding was initiated without probable cause

because the stop was unconstitutional, not all the evidence on which the charges were based were

presented to the grand jury, and no additional evidence was ever present[ed] to support these

charges.” (Id. at ¶ 32.) Bickerstaff claims that Officer McCandless acted maliciously because he

“initiated the charges in retaliation and to harass and demean the plaintiff in order to have her […]

silenced, due to the fact that she is a private investigator which violates her first amendment rights.”

(Id. at ¶ 33.) Lastly, Bickerstaff alleges that her Fourteenth Amendment15 rights were violated

15 The Magistrate Judge and the parties treat Count I as asserting a malicious prosecution claim under the Fourth (as

opposed to the Fourteenth) Amendment. A careful review of the Amended Complaint, however, reveals that Bickerstaff

only asserted this claim under the Fourteenth Amendment. (Doc. No. 101 at ¶¶ 27-34.) The Sixth Circuit has found that

constitutional claims for malicious prosecution must be asserted under the Fourth Amendment. See Jackson v. City of

Cleveland, 925 F.3d 793, fn 14 (6th Cir. 2019) (noting that, although this Circuit previously analyzed malicious

prosecution claims under the Fourteenth Amendment rather than the Fourth Amendment, “we ceased doing so after the

Supreme Court held in Albright v. Oliver, 510 U.S. 266, 271, 273–75, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) that

malicious-prosecution claims must be asserted under the Fourth Amendment rather than the Fourteenth.”) See also Lester

v. Roberts, 986 F.3d 599 (6th Cir. 2021); Pinkney v. Berrien County, Michigan, 2022 WL 3572978 at * 3-4 (6th Cir.

Aug. 19, 2022). Given Bickerstaff’s pro se status, and the fact that none of the parties raise this issue, the Court will

construe Bickerstaff’s federal malicious prosecution claim as arising under the Fourth Amendment for purposes of this

Opinion.

20

“because the officers involved did not present the true and accurate evidence to make sure the plaintiff

had a true and impartial information.” (Id. at ¶ 34.)

In his Motion for Summary Judgment, Officer McCandless argues that he is entitled to

qualified immunity with respect to Bickerstaff’s malicious prosecution claim and that this claim

“otherwise fails because of the existence of probable cause.” (Doc. No. 187 at pp. 12-15, 17-18.)

Bickerstaff opposed the Motion. (Doc. No. 192.) The entirety of her argument with respect to this

Defendant is as follows:

The defendant[] writes an affidavit[] with the assistance of their attorney. Officer

Daniel McCandless (on page 4) he never met the plaintiff prior to the traffic; he has

misrepresented the truth on his sworn affidavit. See the trial transcripts for the criminal

case (15-601122) Ex-A pgs. 78-89 during his testimony many of his answers were, “I

don’t recall,” or I believe. The plaintiff/s attorney (Mr. Drucker) asks officer

McCandless “you said that she was covering up the weapon, right? Officer

McCandless replies did “I believe so, yes.” (Mr. Drucker) “but you didn’t actually see

her do that, did you? Officer McCandless says,” Did I actually see her put the stuff

over it, no.”

Officer McCandless became so reckless with his behavior towards the plaintiff. He

fabricated that the Plaintiff not only had a weapon the license was revoked. (See-Ex-

B) The defendant’s attorney asks the plaintiff during her deposition dated (January 3rd

2022). “Did the plaintiff ever own a CCW license? Answer no, never ever? *** Officer

McCandless was reckless in his capacity of his duty and he did that intentionally to

inflict harm on the Plaintiff. Officer McCandless is not protected under qualified

immunity because constitutional violations were involved, when he conducted the

traffic stop. It was out of malice, he knew who the plaintiff was before he pulled the

plaintiff over. He confirmed the identity of the plaintiff[] during her criminal

proceeding before he conducted the traffic stop. Officer McCandless was the cause of

the malicious prosecution. . .

(Id. at pp. 3-4) (reproduced as in original).16 Defendant McCandless filed a Reply Brief, in which he

argues that Bickerstaff “did not present any evidentiary material upon which a trier of fact could

16 Bickerstaff’s Brief in Opposition is supported by (1) excerpts from Officer McCandless’ trial testimony; (2) a January

5, 2016 email from the Public Records Manager of the Cuyahoga County Sheriff’s Department stating that there is no

CCW license issued under the name Brenda Bickerstaff; (3) excerpts from Officer Goshen’s trial testimony; (4) excerpts

21

reasonably find in her favor on any of her remaining claims.” (Doc. No. 195 at p. 1.) Bickerstaff

then filed a Sur-Reply, in which she insists that Defendant McCandless is a “liar and a manipulator”

and argues that he falsely stated that her headlights were off, that she had once had a CCW permit

but it was revoked, and that he did not know her prior to the traffic stop. (Doc. No. 196.)

In the Report & Recommendation, the Magistrate Judge first delineated the aspects of

Bickerstaff’s malicious prosecution claim against Officer McCandless on which she would not be

able to establish a constitutional violation. (Doc. No. 207 at p. 30.) Specifically, the Magistrate Judge

determined that Bickerstaff’s malicious prosecution claim is not cognizable to the extent it pertains

to Officer McCandless’ institution of charges in traffic court because Bickerstaff entered a no-contest

plea in that proceeding and the charge for driving without headlights was dismissed. (Id.) He then

found that Bickerstaff “cannot establish a constitutional violation with respect to her traffic stop and

detention” because the state trial court expressly determined that there was probable cause for the

stop and detention and, therefore, she is precluded from relitigating that issue now. (Id. at pp. 30-

31.)

The Magistrate Judge next found that Bickerstaff is “unable to establish a constitutional

violation with respect to Officer McCandless’ fabrication of a report that was then relied upon to

institute felony charges.” (Id. at p. 32.) He explained that, although Bickerstaff alleged that Officer

McCandless prepared a false report, “there is no Rule 56 evidence before the court regarding the

from Bickerstaff’s deposition; (5) the Declarations of Officers McCandless, Goshen and Nuti; and (6) various letters from

the City of Cleveland’s Department of Public Safety to Officer Goshen. (Doc. Nos. 192-1 through 192-11.) The Officer

Defendants objected to the admissibility of the letters to Officer Goshen as irrelevant. (Doc. No. 195 at fn 3.) The

Magistrate Judge agreed that the letters are irrelevant and declined to consider them. (Doc. No. 207 at p. 7, fn 7.)

Bickerstaff does not object to this finding. Therefore, in the absence of any objection and finding no clear error, the Court

will not consider these letters herein.

22

existence or content of any report prepared by Officer McCandless.” (Id.) Moreover, he found that

Bickerstaff’s own testimony “is insufficient because she has not established her personal knowledge

of the report.” (Id.) The Magistrate Judge, therefore, concluded that Bickerstaff “has not established

that a genuine dispute of material fact exists as to whether Officer McCandless prepared a false report

upon which her felony charges were brought.” (Id.) Lastly, the Magistrate Judge concluded that

Bickerstaff “is also unable to establish a constitutional violation based on Officer McCandless’

testimony that she had a CCW permit.” (Id.)

Bickerstaff has not objected to any of the above findings and recommendations. This Court,

having reviewed the Report & Recommendation and finding no clear error, accepts the Magistrate

Judge’s recommendations (as set forth above) regarding the specific aspects of Bickerstaff’s

malicious prosecution claim upon which she cannot proceed.

The Magistrate Judge next found that Officer McCandless was not entitled to qualified

immunity with respect to the following aspects of Bickerstaff’s malicious prosecution claim:

I find that Bickerstaff would, however, potentially be able to establish a constitutional

violation based on Officer McCandless’s alleged misrepresentation of what happened

during the traffic stop at her trial. See Moldowan v. City of Warren, 578 F.3d 351, 378-

79 (6th Cir. 2009) (stating that a police officer can violate a criminal defendant’s due

process rights by withholding or suppressing exculpatory material in the course of his

investigation); State v. Brown, 2017-Ohio-7701, ¶ 39 (Ohio Ct. App. 2017) (same).

Specifically, Bickerstaff challenges the veracity of Officer McCandless’s statement

that he saw her covering the rifle bag and withheld exculpatory evidence. ECF Doc.

191-1 at 40; ECF Doc. 192 at 3; ECF Doc. 196 at 4. From the available record, the

tampering-with-evidence charge is premised upon Officer McCandless’s purported

observation that the rifle bag was initially uncovered, that Bickerstaff reached toward

the back seat, and that the rifle bag was observed to be covered afterwards. ECF Doc.

192-1 at 4. But the video evidence does not necessarily corroborate Officer

McCandless’s account, because the video does not depict the condition of the rifle bag

in the back seat prior to Officer McCandless’s accusation. See Video File A1 at 01:15.

Therefore, a genuine issue of material fact exists as to whether the rifle bag was

uncovered initially and whether Officer McCandless saw Bickerstaff cover the

rifle bag. By extension, there would be a genuine dispute of material fact as to

23

whether an ordinarily prudent person could conclude whether Bickerstaff

concealed the rifle bag with the purpose of impairing an investigation. See Mott,

524 F. App’x at 186; State v. Straley, 139 Ohio St.3d 339, 342 (Ohio 2014).

There is also a genuine dispute of material fact as to Bickerstaff’s firearm-related

offenses. If Officer McCandless never conveyed to Prosecutor Obed Bickerstaff’s

claimed lack of knowledge of the rifle bag, Bickerstaff’s explanation of why she

reached into the back seat, and her son’s presence at the scene corroborating her

account, there would be a genuine issue of material fact as to whether evidence

existed to support her firearm-related offenses. King, 852 F.3d at 587.

Specifically, there would be a genuine issue of material fact as to whether

Bickerstaff knowingly concealed ready at hand a deadly weapon and as to

whether she knowingly had a firearm while being under disability. See Mott, 524

F. App’x at 186; Ohio Rev. Code §§ 2923.12(A)(1); 2923.13(A)(2). Therefore, there

is a genuine dispute of material fact as to whether Officer McCandless violated

Bickerstaff’s Fourth Amendment rights via malicious prosecution.

(Id. at pp. 32-34) (bold added, italics in original). The Magistrate Judge went on to find that the

constitutional violation was clearly established, explaining as follows:

The appropriate examination of whether a clearly established right was violated is

context-specific. See Beck v. Hamblen Cnty., 969 F.3d 592, 599-600 (6th Cir. 2020).

The Fourth Amendment protection against malicious prosecution is violated only

when the defendant’s “deliberate or reckless falsehoods result in arrest and

prosecution without probable cause.” Newman v. Twp. of Hamburg, 773 F. 769, 772

(6th Cir. 2014). This requires a degree of blameworthiness on the part of the defendant

“beyond mere negligence or innocent mistake.” Johnson v. Mosely, 790 F.3d 649, 654

(6th Cir. 2015).

Bickerstaff has established a genuine dispute of material fact as to whether

Officer McCandless’s alleged omissions were deliberate or reckless, resulting in

a clear violation of Bickerstaff’s Fourth Amendment rights. There is no dispute

that sometime prior to her arrest, Bickerstaff had filed a complaint against Officer

McCandless. ECF Doc. 191-1 at 40-41. Officer McCandless stated during the traffic

stop that he knew Bickerstaff by way of reputation. Video File A3 at 18:25-18:35.

Officer McCandless testified that he was aware of “talk of the district” about

Bickerstaff, had run her license plate information before, and had unexplained

knowledge of her felony status even before her arrest. ECF Doc. 192-1 at 9-11. And

as discussed above, a reasonable jury could conclude that an evidentiary basis did

not exist for Bickerstaff’s felony charges without Officer McCandless’s alleged

omissions or falsehoods. Thus, a reasonable trier of fact could conclude that

Officer McCandless deliberately or recklessly omitted exculpatory information

or gave erroneous information to the prosecution without which Bickerstaff

24

would not have been prosecuted. See Coffey v. Carroll,933 F.3d 577, 591 (6th Cir.

2019). Thus, I find that he is not shielded by qualified immunity.

Because Bickerstaff has adduced sufficient Rule 56 evidence to establish that a

constitutional violation was committed by Officer McCandless and because the right

violated was clearly established, I recommend that summary judgment be denied on

Bickerstaff’s malicious prosecution claim against Officer McCandless.

(Id. at pp. 34-35) (emphasis added).

In his Objection, Officer McCandless argues that this Court should reject the above findings.

(Doc. No. 212.) He maintains that Bickerstaff did not present any evidence that creates a genuine

issue of material fact that there was a constitutional violation and, further, that the cases cited in the

Report & Recommendation do not provide the specificity required for the clearly established prong

to overcome qualified immunity. (Id.) Officer McCandless further asserts that, even if he did not

have qualified immunity, Bickerstaff failed to present evidence for all the required elements of a §

1983 malicious prosecution claim. (Id.) Lastly, Officer McCandless argues that, to the extent

Bickerstaff’s claim relies on his trial testimony, it its barred by the doctrine of absolute immunity.

(Id.)

Bickerstaff’s response, in its entirety, is as follows: “The city’s response/objection adds

nothing of substance whatsoever. The Magistrate’s decision is supported by the facts and the law

and should be adopted by the Court.” (Doc. No. 213.)

For the following reasons, the Court respectfully disagrees with the Magistrate Judge and

finds that Bickerstaff has failed to come forward with sufficient evidence to create a genuine issue of

material fact that Officer McCandless violated her constitutional rights. The Court therefore finds

that Officer McCandless is entitled to qualified immunity with respect to this claim, as set forth below.

2. Violation of a Constitutional Right

25

Under federal law, a plaintiff must prove four elements to establish a malicious prosecution

claim: (1) that a criminal prosecution was initiated against the plaintiff and that the defendant made,

influenced, or participated in the decision to prosecute; (2) that the state lacked probable cause for

the prosecution; (3) that the plaintiff suffered a deprivation of liberty because of the legal proceeding;

and (4) that the criminal proceeding was resolved in the plaintiff’s favor. Sykes v. Anderson, 625

F.3d 294, 308-09 (6th Cir. 2010). See also Lester v. Roberts, 986 F.3d 599, 606 (6th Cir. 2021). “The

prototypical case of malicious prosecution involves an official who fabricates evidence that leads to

the wrongful arrest or indictment of an innocent person.” Mills v. Barnard, 869 F.3d 473, 480 (6th

Cir. 2017). However, “the § 1983 version of ‘malicious prosecution’ is not limited to the institution

of proceedings; it can also support a claim for ‘continued detention without probable cause.’” Id.

(citation omitted).

a. Made, Influenced or Participated in Decision to Prosecute

Officer McCandless argues that Bickerstaff has failed to come forward with any evidence to

satisfy the first element of a malicious prosecution claim, i.e., that he made, influenced, or participated

in the decision to prosecute Bickerstaff with respect to the felony charges arising from the November

11, 2015 incident. (Doc. No. 212 at pp. 8, 15, 20-21.) The Court agrees.

The first element of a malicious prosecution claim “is met when an officer ‘could reasonably

foresee that his misconduct would contribute to an independent decision that results in a deprivation

of liberty’ and the misconduct actually does so.” Jackson, 925 F.3d at 820 (quoting Sykes, 625 F.3d

at 316). “This element is met when an officer includes ‘misstatements and falsehoods in his

investigatory materials’ and those materials influence a prosecutor’s decision to bring charges.’” Id.

(quoting Sykes, 625 F.3d at 316.) “’To be liable for participating in the decision to prosecute, the

26

officer must participate in a way that aids in the decision, as opposed to passively or neutrally

participating.’” Richards v. County of Washtenaw, 818 Fed. Appx. 487, 493-494 (6th Cir. 2020)

(quoting Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015)). “[M]erely filing an allegedly

misleading case report, without more active participation, qualifies only as ‘passive or neutral’

participation and is thus an insufficient basis for a malicious prosecution claim.” Richards, 818 Fed.

Appx. at 493-494. See also Skousen v. Brighton High School, 305 F.3d 520, 529 (6th Cir. 2002).

“Whether an officer influenced or participated in the decision to prosecute hinges on the degree of

the officer’s involvement and the nature of the officer’s actions.” Sykes, 626 F.3d at fn 9 (citing

Malley v. Briggs, 475 U.S. 335, 344-345 n. 7 (1986)). “The totality of the circumstances informs this

fact determination.” Id.

Here, the Court finds that there is no genuine issue of material fact that Officer McCandless

did not make, influence, or participate in the decision to prosecute Bickerstaff with respect to the

felony charges stemming from the November 11, 2015 traffic stop. As noted above, the Magistrate

Judge expressly found that Bickerstaff “has not established a genuine issue of material fact as to

whether Officer McCandless prepared a false report upon which her felony charges were brought”

because “there is no Rule 56 evidence before the court regarding the existence or content of any report

prepared by Officer McCandless.” (Doc. No. 207 at p. 32.) Bickerstaff did not object to the

Magistrate Judge’s factual finding and/or legal conclusion with respect to this issue.

Upon review of the record, the Court finds no clear error and, in fact, affirmatively agrees

with the Magistrate Judge that Bickerstaff has not submitted any Rule 56 evidence that Officer

McCandless made any false or misleading statements or omissions in a police report relating to this

incident. Notably, Bickerstaff has not produced or directed this Court’s attention to any police report

27

allegedly prepared by Officer McCandless and she did not depose Officer McCandless regarding

either the existence or content of any such report. In sum, Bickerstaff has not come forward with any

evidence whatsoever either that Officer McCandless prepared a police report regarding the November

11, 2015 incident or that any such report contained false or misleading statements.

Nor has Bickerstaff come forward with any Rule 56 evidence that Officer McCandless met

with and/or spoke to prosecutors prior to the institution of felony charges stemming from the

November 11, 2015 incident. Detective Nuti avers that he was assigned to investigate Bickerstaff’s

arrest and that he “consulted with a prosecutor,” after which “a grand jury packet was completed.”

(Nuti Decl. (Doc. No. 187-3) at ¶ 3.) The Magistrate Judge expressly found that “there is no Rule 56

evidence before the court that Officer McCandless ever met with Detective Nuti as part of Detective

Nuti’s investigation.” (Doc. No. 207 at p. 36.) Bickerstaff did not object to this finding. Upon review

of the record, the Court finds no clear error and, in fact, agrees with the Magistrate Judge that

Bickerstaff has not submitted any Rule 56 evidence that Officer McCandless met with Detective Nuti

as part of Detective Nuti’s investigation.

Moreover, even assuming arguendo that Detective Nuti did obtain information from Officer

McCandless regarding the November 11, 2015 incident and conveyed such information to the

prosecutor, Bickerstaff has not directed this Court’s attention to any Rule 56 evidence that Officer

McCandless provided false or misleading information to Detective Nuti. While Bickerstaff alleges

generally that the Officers involved in her arrest and prosecution met and conspired against her, she

has not directed this Court’s attention to any evidence that such a meeting actually occurred or what

was said by whom. Bickerstaff’s unsupported speculation that Officer McCandless provided false

and/or misleading information to Detective Nuti which was then relayed to the prosecutor, is

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insufficient to create a genuine issue of material fact with respect to this issue. Lastly, there is no

evidence that Officer McCandless made deliberately false or misleading statements in testimony

before the grand jury and/or during a preliminary hearing relating to this incident. Indeed, to the

contrary, Officer McCandless avers that he only testified at the suppression hearing and at

Bickerstaff’s bench trial, both of which occurred after the decision to prosecute Bickerstaff had

already been made. (McCandless Decl. (Doc. No. 187-1) at ¶ 16.)

The Magistrate Judge suggests that Bickerstaff may be able to show that Officer McCandless

influenced or participated in the decision to prosecute by virtue of his allegedly false statements

during the traffic stop (which were captured on video) that the rifle bag was initially in plain view

when the Officers first approached Bickerstaff’s vehicle and that Bickerstaff subsequently concealed

the rifle bag. (Doc. No. 207 at p. 33.) As noted above, these allegations led to Bickerstaff’s felony

tampering with evidence charge.17

The Court respectfully disagrees with the Magistrate Judge. As an initial matter, Bickerstaff

does not argue (either in her Brief in Opposition to Defendants’ summary judgment motion, her Sur-

Reply, or her Response to Officer McCandless’ Objection) that Officer McCandless lied when he

stated that the rifle bag was in plain view when he and Officer McKinney first approached the vehicle.

Nor has she directed this Court’s attention to any Rule 56 evidence that the rifle bag was not, in fact,

in plain view when Officers McCandless and McKinney initially approached her vehicle. During her

17 Bickerstaff states that she was charged with tampering with evidence in violation of Ohio Rev. Code § 2921.12(A)(1).

That statute provides that “No person, knowing that an official proceeding or investigation is in progress, or is about to

be or is likely to be instituted, shall do any of the following: (1) Alter, destroy, conceal, or remove any record, document,

or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.” Ohio Rev. Code

§ 2921.12(A)(1). See also State v. Straley, 139 Ohio St.3d 339, syllabus (2014) (“A conviction for tampering with

evidence pursuant to R.C. 2921.12(A)(1) requires proof that the defendant intended to impair the value or availability of

evidence that related to an existing or likely official investigation or proceeding.”)

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deposition, Bickerstaff was asked about the moment she first discovered that the rifle bag was in the

back seat. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 48-49.) She testified that, after Officers

McCandless and McKinney returned to the patrol car with her driver’s license and proof of insurance,

she reached into the back seat to get a bag that contained her recording device. (Id.) Bickerstaff

explained that she “reached back to get my bag, and that is when I hit something hard, and I looked,

and I noticed that the weapon was there, and I contacted my son immediately.” (Id. at Tr. 49.)

She did not testify that the rifle bag was underneath anything or that she had to move anything to see

it or otherwise confirm that it was in, fact, a rifle bag. Rather, she simply testified that she “looked”

and “noticed that the weapon was there.” (Id.) Later in her deposition, Bickerstaff was specifically

asked about the moment when Officer McCandless returned to her vehicle and stated that the rifle

bag was “clearly visible” in the back seat when he had first approached. (Id. at Tr. 50-51.) Bickerstaff

did not dispute this during the deposition, responding simply “Okay.” (Id. at Tr. 51.) In sum,

Bickerstaff does not direct this Court’s attention to any evidence (either in her deposition, her

affidavit, or otherwise) that the rifle bag was not “clearly visible” when Officer McCandless first

approached her vehicle.

Officer McCandless, on the other hand, specifically avers that, when he first approached

Bickerstaff’s vehicle, he looked in the back seat with his flashlight and saw that a rifle bag was “in

plain sight.” (McCandless Decl. (Doc. No. 187-1) at ¶ 7, 9.) Moreover, as Defendants correctly note,

the state trial court expressly determined, during the suppression hearing, that the plain view doctrine

applied, thus at least implicitly determining that the rifle bag was in plain view when the Officers

initially approached the vehicle. (Doc. No. 195-1 at PageID# 1681.)

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The Magistrate Judge also suggests that Bickerstaff may be able to show that Officer

McCandless influenced or participated in the decision to prosecute by virtue of his allegedly false

statements at trial18 that Bickerstaff intentionally concealed the rifle bag. (Doc. No. 207 at p. 32-33.)

Again, the Court disagrees. The Court does not have a full and complete copy of Officer McCandless’

trial testimony. However, Bickerstaff does attach excerpts of Officer McCandless’ trial testimony to

her Brief in Opposition to Defendants’ Motion for Summary Judgment. (Doc. No. 192-1.) Therein,

Officer McCandless acknowledged during cross-examination that he did not, in fact, see Bickerstaff

cover up the rifle bag:

Q: When you say you saw her hide it, you’re assuming that what you witnessed

when you were – what you testified about when you were in your car, the

movement you said that she was covering up the weapon, right?

A: I believe so, yes.

Q: But you didn’t actually see her do that, did you?

A: Did I actually see her put stuff over it, no.

(Id. at PageID# 1616.) Thus, Officer McCandless did not testify at trial that he saw Bickerstaff

intentionally conceal the rifle bag. Rather, he acknowledged that he assumed that is what she was

doing in light of the fact that (1) the rifle bag was initially in plain view; (2) he then saw Bickerstaff

reach into the back seat; and (3) the rifle bag was then concealed when the Officers returned to the

vehicle. (Id.)

18 The Sixth Circuit has held that “[t]estifying at trial can never be the basis of a malicious prosecution claim, as ‘a trial

witness has absolute immunity with respect to any claim based on the witness’ testimony.’” Richards, 818 Fed. Appx. at

493 (quoting Rehberg v. Paulk, 566 U.S. 356, 367 (2012)). On the other hand, in another recent case, the Sixth Circuit

held that “a plaintiff can also show that an officer ‘participated’ [in a prosecution] by alleging that an officer deliberately

or recklessly gave false testimony at trial.” Novak v. City of Parma, Ohio, 33 F.4th 296, 307 (6th Cir. 2022). The Court

need not resolve whether Officer McCandless has absolute immunity for his trial testimony. As discussed infra,

Bickerstaff has not come forward with sufficient Rule 56 evidence that Officer McCandless did, in fact, deliberately give

false testimony at trial.

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As noted above, Bickerstaff has not argued or directed this Court’s attention to any evidence

that the rifle bag was not initially in plain view when Officers McCandless and McKinney first

approached her vehicle. She does not dispute the fact that she reached into the back seat after the

Officers had returned to the patrol car. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 49.) Finally,

Bickerstaff can clearly be heard on the video footage disputing Officer McCandless’ accusation that

she concealed the rifle bag. (Video File A3 at 1:00 to 1:24.) Notably, Bickerstaff has not presented

any evidence that the prosecutor was not provided copies of the Officers’ body cam footage.

Accordingly, and for all the reasons set forth above, the Court finds that Bickerstaff has failed

to come forward with evidence creating a genuine issue of material fact that Officer McCandless

made, influenced, or participated in the decision to prosecute her for the felony charges arising from

the November 11, 2015 incident.

b. Probable Cause

The Court further finds that Bickerstaff has failed to come forward with evidence creating a

genuine issue of material regarding the second element of a federal malicious prosecution claim, i.e.,

the existence of probable cause. “’Probable cause is defined as reasonable grounds for belief,

supported by less than prima facie proof but more than mere suspicion.” Sykes, 625 F.3d at 306

(quoting U.S. v. McClain, 444 F.3d 556, 562 (6th Cir. 2005)). See also Howse, 953 F.3d at 408

(“Probable cause exists when there are enough ‘facts and circumstances’ to make a reasonable person

believe that ‘the accused was guilty of the crime charged.’”) (quoting Webb, 789 F.3d at 660). A

grand jury’s finding creates a presumption of probable cause in later proceedings under § 1983.

Lester, 986 F.3d at 608. A plaintiff may overcome this presumption “if the defendant ‘fabricates

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evidence or knowingly or recklessly makes materially false statements outside the grand jury

context.’” Id. (quoting King v. Harwood, 852 F.3d 568, 587-588 (6th Cir. 2017)).

Here, Bickerstaff states that the grand jury issued an indictment charging her with having

weapons under disability (Ohio Rev. Code § 2923.13(A)(2)); carrying a concealed weapon (Ohio

Rev. Code § 2923.12(A)(1)); and tampering with evidence (Ohio Rev. Code § 2921.12(A)(1)).

(Bickerstaff Aff. (Doc. No. 101-1) at ¶ 2. PageID# 761.) Thus, the presumption of probable cause

is triggered and can only be overcome if Bickerstaff comes forward with sufficient evidence to create

a genuine issue of material fact that Officer McCandless fabricated evidence or knowingly or

recklessly made materially false statements outside the grand jury context. See Lester, 986 F.3d at

608; King, 852 F.3d at 587-588.

With regard to Bickerstaff’s weapons-related offenses, the Magistrate Judge suggests that the

presumption of probable cause could be overcome “[i]f Officer McCandless never conveyed to

Prosecutor Obed Bickerstaff’s claimed lack of knowledge of the rifle bag, Bickerstaff’s explanation

of why she reached into the back seat, and her son’s presence at the scene corroborating her account.”

(Doc. No. 207 at p. 33.) The Court respectfully disagrees.

As an initial matter, Bickerstaff has failed to come forward with any Rule 56 evidence that

Officer McCandless did, in fact, fail to convey this information to either the prosecutor or Detective

Nuti. As discussed above, Bickerstaff has not directed this Court’s attention to any evidence that

Officer McCandless prepared a false police report and/or spoke with the prosecutor or Detective Nuti

regarding the November 11, 2015 traffic stop. Moreover, the Court notes that the specific information

cited by the Magistrate Judge (i.e., Bickerstaff’s alleged lack of knowledge of the rifle bag, her

explanation for reaching into the back seat, and the presence of Edward at the scene) is clearly

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ascertainable from Officer McCandless’ and Officer McKinney’s body cam footage. As discussed

at length above, Bickerstaff can clearly be heard on the video recording stating that she did not know

that the rifle bag and weapon were in the vehicle; that the rifle bag and weapon belonged to her son;

and that she was reaching into the back seat only to get her recording device. (Video File A3 at 1:00

to 1:51.) She can also be heard stating that her son had arrived at the scene. (Id. at 20:00.) Bickerstaff

has not argued nor directed this Court’s attention to any evidence that the Officers’ body cam footage

was improperly withheld from or otherwise not provided to the prosecutor.

The Magistrate Judge also suggests that the presumption of probable cause could be overcome

by evidence that Officer McCandless mispresented that the rifle bag was initially uncovered when he

and Officer McKinney first approached the vehicle, and that he subsequently saw Bickerstaff conceal

the rifle bag. As discussed at length above, however, Bickerstaff has not argued (or directed this

Court’s attention to any evidence) that the rifle bag was not clearly visible when the Officers first

approached her vehicle. Nor has she shown that Officer McCandless testified at trial that he

subsequently saw Bickerstaff conceal the bag.

However, even assuming arguendo that Bickerstaff could overcome the presumption of

probable cause with respect to the tampering with evidence charge, the Court finds that Officer

McCandless would nonetheless be entitled to qualified immunity. The Sixth Circuit has held that,

when a person faces multiple charges, probable cause as to any one charge will defeat a claim for

malicious prosecution as to any related charge for which he is prosecuted. See Howse, 953 F.3d at

408-409 (where plaintiff was indicted on two counts of assault along with one count of obstruction

of official business, finding that “because there was probable cause for [obstruction], Howse cannot

move forward with any of his malicious-prosecution claims” as to any of the charges). See also

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Peterson v. Smith, 2021 WL 1556863 at * 9 - 13 (E.D. Mich. Feb. 1, 2021) report and

recommendation adopted by 2021 WL 822496 (E.D. Mich. March 4, 2021).

Here, the Court finds that there is no genuine issue of material fact that the State had probable

cause to prosecute Bickerstaff for the charge of having weapons under disability. That charge was

brought under Ohio Rev. Code § 2923.13(A)(2), which provides that: “[u]nless relieved from

disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or

use any firearm or dangerous ordinance, if any of the following apply: ** (2) The person is under

indictment for or has been convicted of any felony offense of violence …” Ohio Rev. Code §

2923.13(A)(2). “In order to ‘have’ a weapon within the meaning of R.C. 2923.13(A), one must either

actually or constructively possess it.” State v. Ellis, 152 N.E.3d 1255, 1263 (Ohio App. 8th Dist.

2020). As one Ohio appellate court has explained:

Constructive possession exists when an individual exercises dominion and control

over an object, even though that object may not be within his immediate physical

possession. [M]ere access to the weapon can establish guilt, that is, ownership is not

a prerequisite to determining whether someone had the weapon. Moreover,

circumstantial evidence can be used to support a finding of constructive possession.”

(Internal citations and quotations omitted.)

State v. Bartee, 2010 WL 4970900 at * 2 (Ohio App. 9th Dist. Dec. 8, 2010). See also Ellis, 152

N.E.3d at 1263 (“Constructive possession exists when an individual exercises dominion and control

over an object, even though the object may not be within his immediate physical possession. *** To

establish constructive possession, there must be some evidence that the person exercised or had the

power to exercise dominion and control over the object.”) (internal citations omitted).

Here, it is undisputed that Bickerstaff had a prior felony conviction at the time of the

November 11, 2015 incident. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 39; Video File A3 at 12:28

– 12:38; Nuti Decl. (Doc. No. 187-3) at ¶ 2.) It is also undisputed that Bickerstaff owned the Nissan,

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that she was the only occupant of the vehicle at the time of the traffic stop, and that there was a loaded

12-gauge shotgun in the back seat area of her vehicle. (Bickerstaff Depo. (Doc. No. 191-1) at Tr. 10,

38-39.) Notably, Bickerstaff also does not dispute that the weapon was easily accessible to her or

that the rifle bag was in plain view at the time of the traffic stop.

Based on the above, the Court finds that there was ample probable cause for Bickerstaff’s

weapon under a disability charge. The fact that Bickerstaff told Officer McCandless that she did not

own the weapon or know it was in the vehicle does not negate probable cause. As the Sixth Circuit

recently noted, probable cause is “not a high bar” and “does not require the same type of specific

evidence of each element of the offense as would be needed to support a conviction beyond a

reasonable doubt.” Lester, 986 F.3d at 608 (citations omitted). Rather, it “requires only a probability

of substantial chance of criminal activity, not an actual showing of such activity.” Wesby, 138 S.Ct.

at 586. Nor does the fact that Bickerstaff was ultimately acquitted mean that the State lacked probable

cause at the time of trial. See Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015) (“The fact that

the jury did not consider [the alleged victim’s] testimony sufficiently persuasive to find Johnson

guilty of domestic assault beyond a reasonable doubt does not establish that probable cause was

lacking when the trial began.”); Newman v. Township of Hamburg, 773 F.3d 769, 773 (6th Cir. 2014)

(“Because there is no requirement that the defendant to a malicious prosecution charge must have

evidence that will ensure a conviction, not every failed criminal prosecution will sustain a subsequent

malicious prosecution suit”) (quoting Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005)).

Here, viewing all the circumstances in totality, the Court finds that Officer McCandless had

reasonable grounds for believing that Bickerstaff had a weapon while under disability. Accordingly,

because there was probable cause for her arrest and continued prosecution on the weapons under

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disability charge, Bickerstaff cannot move forward with her malicious prosecution claims as to any

of the felony charges arising from the November 11, 2015 traffic stop. See Howse, 953 F.3d at 408-

409.

In sum, for all the reasons set forth above, the Court finds that Bickerstaff has failed to

demonstrate that there is a genuine issue of material fact that Officer McCandless violated her Fourth

Amendment right to be free from malicious prosecution. Officer McCandless is therefore entitled to

qualified immunity and summary judgment in his favor with respect to Count I of the Amended

Complaint.

VI. Conclusion

Accordingly, and for all the reasons set forth above, the Magistrate Judge’s Report &

Recommendation (Doc. No. 207) is ADOPTED IN PART and REJECTED IN PART, as follows.

The Court REJECTS the Report & Recommendation to the extent it recommends that Defendant

McCandless be denied qualified immunity with respect to Plaintiff’s federal malicious prosecution

claim. The Court ADOPTS the Report & Recommendation in all other respects, as set forth herein.

Accordingly, Defendant McCandless’ Objection is GRANTED and the Officer Defendants’ Motion

for Summary Judgment (Doc. No. 187) is GRANTED.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: September 8, 2022 U. S. DISTRICT JUDGE

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