David Gavitt v. Bruce Born

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0216p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DAVID L. GAVITT, ┐

Plaintiff-Appellee (15-2136), │

│

Plaintiff-Appellant (15-2434), │

│

> Nos. 15-2136/2434

v. │

│

BRUCE BORN, personal representative of Estate of │

John E. DeVries, │

Defendant-Appellant (15-2136), │

│

│

COUNTY OF IONIA; GARY M. GABRY; RAYMOND P. │

VOET; GAIL BENDA; RONALD J. SCHAFER; CITY OF │

IONIA; KENNETH E. VOET; RANDALL W. KLEIN; │

JOHN P. FATCHETT; JOHN J. KALMAN, JR., │

Defendants-Appellees (15-2434). │

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:14-cv-12164—Nancy G. Edmunds, District Judge.

Argued: August 3, 2016

Decided and Filed: September 1, 2016

Before: CLAY, ROGERS, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant in 15-2136 and Appellees Fatchett and Kalman in 15-2434.

Christopher P. Desmond, JOHNSON LAW, PLC, Detroit, Michigan, for Appellee in 15-2136

and Appellant in 15-2434. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO,

P.L.C., Livonia, Michigan, for Ionia County Appellees in 15-2434. Mary Massaron,

PLUNKETT COONEY, Bloomfield Hills, Michigan, for City of Ionia Appellees in 15-2434.

ON BRIEF: Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

1

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 2

Lansing, Michigan, for Appellant in 15-2136 and Appellees Fatchett and Kalman in 15-2434.

Christopher P. Desmond, JOHNSON LAW, PLC, Detroit, Michigan, for Appellee in 15-2136

and Appellant in 15-2434. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO,

P.L.C., Livonia, Michigan, for Ionia County Appellees in 15-2434. Mary Massaron,

PLUNKETT COONEY, Bloomfield Hills, Michigan, for City of Ionia Appellees in 15-2434.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Plaintiff in the action from which these two appeals arise,

David Gavitt, was sentenced to life in prison in 1986 after a jury found him guilty of arson and

felony murder, charges stemming from a house fire that took the lives of his wife and two

daughters. In June 2012, the state court granted Gavitt’s unopposed motion for relief from

judgment based on newly discovered evidence. The newly discovered evidence is in the nature

of advancements in fire science research and investigation methods that tend to impugn some of

the evidence on which Gavitt’s convictions were based. The judgment was vacated, the charges

dismissed, and Gavitt was released from prison.

Two years later, Gavitt brought this civil rights action against numerous city and county

entities, prosecutors, law enforcement officials, and investigators who participated in the

prosecution against him. He claims that defendants violated his due process rights by

intentionally misrepresenting evidence and failing to disclose exculpatory evidence, and that they

conspired to deprive him of his rights. All defendants moved to dismiss on the pleadings and the

district court granted all but one of the motions, that of the Estate of John DeVries, a Michigan

State Police forensic laboratory technician who testified at Gavitt’s trial.1 While the district

court identified legal deficits that warranted dismissal of most of Gavitt’s claims, it held that

Gavitt’s claim against DeVries included sufficient factual allegations to state a valid claim for

relief.

We now address two appeals stemming from the district court’s rulings. First, in No. 15-

2136, the Estate of DeVries challenges the denial of its motion to dismiss based on qualified

1

John DeVries died in 1994. His Estate is represented in this matter by Bruce Born, special personal

representative.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 3

immunity. In short, the Estate contends the district court read Gavitt’s claim too generously,

failing to recognize that the public record made in state court contradicts his allegations,

rendering the claim implausible. Second, in No. 15-2434, Gavitt challenges the dismissals of his

claims against the other defendants, contending that his allegations pass muster at the pleading

stage and that he deserves the chance to conduct discovery. For the reasons that follow, we deny

relief in both appeals. The Estate’s appeal must be dismissed for lack of appellate jurisdiction.

As to the second appeal, we affirm, finding no error in the dismissals of Gavitt’s claims against

the remaining defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND

Each of the district court’s substantive rulings includes substantially the same summary

of the factual and procedural background. No party having disputed the accuracy of the

summary, it is reproduced here:

A. Fire, Investigation, Arrest, Trial, and Conviction

Gavitt survived a March 9, 1985 house fire. His wife and two daughters

tragically did not. An investigation was initiated by the City of Ionia Police

Department and the Michigan State Police Arson Task Force.

On the morning of March 10, 1985, Defendants Kalman and Fatchett,

then-Michigan State Police (“MSP”) officers assigned to the MSP Arson Strike

Force Unit (“Det./Sgt. Kalman” and “Det./Sgt. Fatchett” respectively), were

dispatched to the scene of the house fire to investigate its cause and origin. Based

on their initial review of the evidence, they concluded that the fire was incendiary

in nature. At 2:30 in the afternoon that same day, Det./Sgts. Kalman and Fatchett

summoned Defendant Klein, then-Sergeant with the Ionia Police Department

(“Sgt. Klein”), to the burned home, walked him through the evidence at the fire

scene that led them to their initial conclusion that the fire was incendiary in

nature, and collected evidence that Sgt. Klein then placed in an Ionia Police

Department evidence locker. Sgt. Klein then continued his investigation by

obtaining evidence from and interrogating Plaintiff David Gavitt (“Gavitt”), and

obtaining more evidence from the burned home.

On March 12, 1985, as reported in Det./Sgt. Kalman’s March

1985 Report, a meeting was held “for the purpose of reviewing the evidence and

determining the course of the investigation.” Defendant Prosecutor Gabry is

listed as being present. Det./Sgt. Kalman reported that he presented evidence, a

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 4

discussion was held, and a conclusion reached that Gavitt may have set the fire

himself and was unable to save his family once the fire started:

Undersigned officer explained the burn patterns and also relating

[sic] the burn patterns to the burns on the victim. A formal

discussion was held on all the evidence obtained and it is the

feeling that there is strong evidence pointing to the fact that MR.

DAVID GAVITT may have indeed set the fire himself and was

unable to save his family once the fire started.

Sgt. Klein’s March 20, 1985 Report also discussed the March 12th meeting and

calls it a “‘skull session’ starting at/around 8:30 am, ending a short time later.”

Sgt. Klein does not list Prosecutor Gabry as being present. Rather, he reports:

Journal Entry: It was on TUES, MARCH 12th, 1985 that this

investigating officer, Sgt. Wieczorek and Chief Voet met with the

following: City Superintendent Allen Housler, Det/Sgt. JOHN

KALMAN and Det/Sgt. JOE DeKRACKER of the Arson Strike

Force, MSP Rockford Post, this meeting was an “initial assessment

of the case”. It should be noted that this meeting was a “skull

session” starting at/around 8:30 am, ending a short time later.

On June 10, 1985, a felony complaint was issued, and state criminal

charges were brought against Gavitt – three counts of murder, three counts of

felony murder, arson, and arson insured property – and he was subsequently

arrested. Sgt. Klein was the complaining witness on the criminal complaint.

On June 21, 1985, a preliminary examination hearing was held on the

criminal charges brought against Gavitt. District Court Judge James Ward was

the presiding judge and Defendant Gabry was the prosecutor. The District Court

found that probable cause existed on the charged offenses – murder, felony

murder, and arson – but dismissed the insurance fraud charge.

A jury trial was held in the Circuit Court for the County of Ionia. On

February 14, 1986, a jury convicted Gavitt on three counts of murder committed

in the perpetration of arson (first degree felony murder) and one count of arson to

a dwelling place. The one count of arson was dismissed by the Court at

sentencing.

On April 18, 1986, Gavitt was sentenced to “imprisonment for life on each

of the three counts of murder, to be served concurrently with each other.”

B. Innocence Clinic’s Post-trial Motion for Relief, Stipulation, and Dismissal

In September 2011, a motion for relief from judgment was filed on

Gavitt’s behalf by the University of Michigan Law School’s Innocence Clinic,

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 5

arguing that there was newly discovered scientific analysis of the origin and cause

of the March 1985 fire establishing that there was no arson. That motion

explained that evidence of actual innocence was only recently discovered

because, beginning in 1992, there has been a complete revolution in the field of

fire investigation:

14. The field of fire investigation has undergone a complete

revolution since Mr. Gavitt was convicted in 1986. In 1992, the

National Fire Protection Association adopted NFPA 921, the

current standard of care for fire investigations, which for the first

time put the field of fire investigation on a scientific basis.

15. In light of the changes in the field of fire investigation, John

Lentini – a world-renowned fire investigator who has reviewed all

available testimony and evidence in this case – has concluded that

there is no basis to conclude that arson was the cause of the Gavitt

fire. Mr. Lentini’s affidavit is attached to the brief accompanying

this motion.

16. Mr. Lentini’s findings are rooted in the crucial concept of

“flashover,” which was not well understood by the fire

investigation community at the time of Mr. Gavitt’s trial. During

flashover – a phenomenon that takes place when a compartment

like the Gavitt living room catches fire – a room becomes so hot

that every exposed combustible surface can catch fire.

*****

29. Mr. Lentini’s scientific conclusions regarding the origin and

cause of the Gavitt fire meet this [newly discovered evidence] test.

His findings are based on the new standards of origin and cause

investigation, which were not adopted until the early 1990s, at the

earliest, years after Mr. Gavitt’s trial. The evidence refutes all

scientific evidence presented at trial, so it is not cumulative.

Further, because the prosecution’s case relied wholly on the

testimony of fire experts, no rational jury could have found Mr.

Gavitt guilty of murder if the findings of Mr. Lentini or any

competent fire investigator applying modern standards had been

presented. This is particularly true when this evidence is

considered alongside the new evidence regarding the absence of

gasoline on the carpet samples. . . .

30. Finally, because the field of gas chromatography was much

less precise in 1986 than it is today, trial counsel could not have

discovered the new evidence that undermines Mr. DeVries’s

testimony through the exercise of due diligence, and the fourth and

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 6

final prong for granting a new trial based on newly-discovered

evidence is satisfied.

The supporting brief relied heavily on John Lentini’s Affidavit and

similarly argued that, because of “significant advancements in the field of fire

science and arson investigation,” there is newly-discovered evidence that

undermines the prosecution’s case against Gavitt:

While the investigation of this case was, perhaps, normal for a fire

investigation conducted in the mid-1980s, approximately a decade

before scientific principles were first applied to fire investigation,

practically all of the investigative methods and conclusions

reached by the various fire investigators in this case fail to meet

modern standards of accuracy and reliability.

*****

The field of fire investigation has undergone a complete revolution

since Mr. Gavitt’s conviction. John Lentini Affidavit ¶¶ 15-59.

Theories that low-burning, alligatoring, pour patterns, depth of

char, and temperature and speed of fires can serve as indicators of

arson were once unquestioned, but have been completely and

unequivocally repudiated by rigorous scientific testing. Id. at ¶¶

36-59. As such, every indicator of arson relied upon by the

prosecution’s experts at Mr. Gavitt’s trial has been discredited and

is understood to be useless in determining the true origin and cause

of fires. Id. Many factors once thought to be present only in

accelerated fires are now understood to be present in natural fires

that have undergone flashover and progressed to full room

involvement, a phenomenon that was not understood in 1986[.] Id.

at ¶¶ 29-35.

*****

Mr. Lentini’s finding that Mr. DeVries’s testimony about the

carpet flame tests was false meets all parts of the standard for

newly-discovered evidence. Given that the understanding of

flashover is a novel concept in arson science and certainly was not

known outside of a very small subset of the scientific community

at the time of Mr. Gavitt’s trial, the evidence itself and not merely

its materiality is newly-discovered. For this same reason, it is clear

that the evidence could not have been discovered with due

diligence at the time of trial; indeed the concept of flashover would

not become widely known and understood by fire investigators

until at least a decade after Mr. Gavitt’s conviction. . . .

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 7

As Mr. Lentini admitted in his affidavit, at the time that Sgt. Fatchett and

the Ionia County Prosecutor’s expert, Dr. Edwards, considered the impact of

flashover, they had no way of knowing that their generally accepted

interpretations of burn patterns would be refuted years later:

Neither Sgt. Fatchett nor Dr. Edwards considered the impact of

flashover and the impact of the burning curtains when they

attempted to discern what caused the patterns they observed on the

living room floor in the course of their investigation. Nor would

such consideration have been expected in 1986, because the state

of the art in fire investigation had not come to fully recognize

flashover at that time.

*****

All of the above testimony [Defendant Fatchett’s trial testimony

evaluating evidence from the fire and opining that the fire was

intentionally set] can be shown by today’s standards to have been

false and misleading, albeit without malicious intent. . . .

*****

The State’s experts had no way of knowing that their interpretation

of the burn patterns at the Gavitt residence was without any

scientific validity because, at the time of the trial, those

interpretations were, in fact, generally accepted by most fire

investigators, including your affiant. The misinterpretation was

bolstered by the incorrect laboratory analysis performed by Mr.

DeVries. The state’s fire investigators “expectations” were not

properly “calibrated.” They expected the confined fire in the

Gavitt residence to behave like an unconfined fire. Because the

fire did not meet their expectations of normal fire behavior, they

incorrectly determined the fire to be incendiary.

An experienced fire investigator that Gavitt’s defense attorney consulted

with in 1985 also provided an affidavit which was attached as an exhibit to

Gavitt’s motion for relief. Mr. Churchwell, like Mr. Lentini, stressed that “the

world of fire science is vastly different today than it was in 1985;” that the way he

“would have viewed the fire scene in 1985 is completely different from the way”

he “would view the same scene today;” and “the advancements in fire science

would enable [him] to have far better insights and be wary of false findings

today.” Mr. Churchwell, like Mr. Lentini, stated that he subscribed to the same

beliefs that science has now proven to be false; that he can say now that Gavitt

was falsely convicted; but could not have reached that conclusion in 1985-86

when he was consulting with defense counsel:

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 8

Well into the 1980’s, the arson investigation profession believed

that things like floor burn patterns, low burning, deep charring and

alligatoring were automatic indicators of arson: I subscribed to

those beliefs at one time as well. But in the 1990s, with a wider

understanding of the concept of flashover and the emergence of

NFPA 921, the profession grew up and began to embrace the rigors

of actual science. Upon doing so, the open-minded among us

discovered that the old indicators that we thought were automatic

markers of arson were in fact not. This led to the realization that

each of us – investigators who had worked in the 1970s and 1980s

– had misread many fire scenes, possibly leading to the conviction

of innocent people. I have no doubt in my mind that David Gavitt

is one such falsely-convicted person. I can say this knowing what

I know today, but such a conclusion would have been impossible

for me to make in 1985-86 (when Mr. Kolenda consulted with me)

because the profession had yet to become enlightened to the errors

of the old ways of arson investigation at that time.

Mr. Churchwell also admitted that he “would likely have made the same

mistake” as those investigating the Gavitt home fire by failing to give adequate

consideration to possible accidental causes of that fire:

As I know from having worked many similar fires in the 1980s, the

fact that obvious sources of ignition and the presence of various

fuels (candles, ashtray, oil lamps, paneling, etc.) went largely

ignored at the trial is not all that surprising. In those days, fire

investigators would look first for pour patterns, alligatoring and

other such things, and upon finding them, we would assume the

fire was arson – so much so that we’d ignore far more obvious

accidental sources of the fire. I have no doubt that the

investigators who looked at the fire scene at the Gavitt home made

this mistake. As cautious and careful as I always try to be, I would

likely have made the same mistake upon seeing the Gavitt fire

scene in 1986: Fire investigators simply did not have enough

knowledge about the true nature of enclosed (compartment) fires at

that time. Today, years later, being wise to the many

advancements and the rigors of actual science that have finally

come to dominate the arson investigation profession, I can say that

the prosecution’s experts were blinded by the myths (alligatoring,

charred glass, low burning, etc.), and failed to give due deference

to far more obvious and likely accidental sources of the fire.

The parties stipulated to a stay of Gavitt’s motion, allowing the Ionia

Prosecutor’s Office time for scientific review of Gavitt’s claims. On June 6,

2012, after a thorough investigation, current Ionia County Prosecutor Ronald

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 9

Schafer, on behalf of the People of the State of Michigan, responded to Gavitt’s

motion.

Prosecutor Schafer acknowledged that, although “fire investigators”

involved in the original investigation “held to a common understanding within

fire investigation,” it is now known that that “was inaccurate, specifically

regarding the recognition and identification of unusual burn patterns in the floor

as definitive evidence of ignitable liquid pour patterns. Unfortunately, during that

time period many fire investigators did not understand the phenomena of

flashover and post-flashover and their effects on the production of unusual burn

patterns in floors within compartments.” Prosecutor Schafer also acknowledged

that Gavitt had satisfied the requirements for a new trial.

[T]he Peoples [sic] recent investigation confirms the 1985 findings

which found the presence of accelerants on the carpet samples

introduced at trial can no longer be independently verified as

having a presence of ignitable liquids, specifically gasoline.

Therefore, the parameters for meeting the legal requirement for a

new trial are not disputed.

Despite an admission that “three independent analyses of the evidence

suggest there was likely no gasoline on the carpet samples taken out of the Gavitt

house in 1985,” Prosecutor Schafer emphasized that “there are still a great deal of

questions surrounding this case which raise significant questions.” “Still today,

these unanswered questions linger when looking at the case on the whole, even in

light of the acknowledged findings in this response. In fact, this is the exact type

of case that would have remained open had it not been prosecuted earlier; the type

of case where justice would demand that it stay open.” Nonetheless, Prosecutor

Schafer acknowledged, “it does not change the fact that fire investigation has

advanced in the twenty-seven years since this fire.”

Prosecutor Schafer identified some of those fire investigation advances

and explained why, in light of those advances, Gavitt cannot be retried.

In particular, our understanding of flashover, post-flashover and

the production of unusual burn patterns in floors, potentially

identified as pour patterns, is different today than in 1985. Testing

of materials in fire cases has also advanced, with more

sophisticated instrumentation and analysis. Consequently, there is

new evidence in this case and [Gavitt] is entitled to a new trial. As

outlined, based on today’s understanding of fire dynamics and the

evolved level of fire investigation, this fire incident would likely

be classified as undetermined and consequently the People will not

be able to retry [Gavitt] . . . . there is only one thing known with

certainty, as of today, this case involves a fire of undetermined

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 10

origin and cause. Having no laboratory verification of the

presence of an accelerant, combined with what the People now

know through scientific research and testing regarding flashover

and post-flashover compartment fires, and the production of

unusual burn patterns in the floor, the determination that an

ignitable liquid (gasoline) was used to initiate the fire at the Gavitt

residence cannot be verified. As a result, this is a case this office

could not charge as arson based on the evidence available today.

However, this is also a case that, if it was new today, this office

would not close. There are simply too many questions, questions

which may never be answered. Ultimately, this remains a case in

which the lives of three innocent people were taken by a fire that

can only be classified as having an undetermined origin and cause.

On June 6, 2012, the People of the State of Michigan and Gavitt stipulated

that Gavitt’s motion for relief from judgment be granted, that all charges against

Gavitt be immediately dismissed, and that the Court order his immediate release

from the custody of the Michigan Department of Corrections.

R. 93, Opinion at 2–11, Page ID 3006–15 (citations omitted) (emphasis in original).

Following his release from prison, Gavitt filed the instant action, alleging that his

wrongful conviction was not merely the product of a tragic but innocent misunderstanding of

scientific evidence. In an eleven-count, 59-page complaint, he asserted claims against numerous

defendants under state and federal law. Gavitt contends that members of the prosecution team—

attorneys and law enforcement officials denied him a fair trial by conducting an incomplete

investigation, misrepresenting evidence, and failing to disclose exculpatory evidence. The

district court dismissed Gavitt’s state law claims sua sponte, declining to exercise supplemental

jurisdiction under 28 U.S.C. § 1367(c). Next, after conducting a hearing on defendants’ motions

to dismiss or for judgment on the pleadings, the court issued orders on December 15, 2014,

dismissing Gavitt’s claims against all defendants. However, Gavitt was permitted to file an

amended complaint against the Estate of DeVries. The Estate’s motion to dismiss the amended

complaint was denied on August 24, 2015.

When the Estate filed its notice of appeal, the district court stayed further proceedings

below, pending resolution of the interlocutory appeal. The court also certified its dismissals of

the claims against the other defendants as a final judgment under Rule 54(b) so that Gavitt could

pursue his appellate rights in conjunction with the Estate’s interlocutory appeal.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 11

II. ESTATE’S APPEAL (No. 15-2136)

A. Appellate Jurisdiction2

The Estate’s appeal challenges an interlocutory ruling that would not ordinarily be

subject to immediate review. However, a pretrial order denying qualified immunity is

immediately appealable under the collateral order doctrine if it implicates only questions of law.

Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014); McDonald v. Flake, 814 F.3d 804, 812–

13 (6th Cir. 2016). Where, as here, qualified immunity is raised and denied at the pleading stage,

and the district court was obliged to accept as true all well-pled factual allegations in the

complaint, the defendant ordinarily cannot challenge on interlocutory appeal the district court’s

acceptance of those facts. See McDonald, 814 F.3d at 812–13. If the defendant challenges the

lower court’s determination of the sufficiency of the evidence supporting the plaintiff’s claim,

then something other than a pure issue of law is presented and appellate jurisdiction is lacking.

See DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604, 609–10 (6th Cir. 2015).

Gavitt’s amended complaint sets forth one claim against the Estate of DeVries. In short,

it alleges that DeVries “either intentionally or with deliberate indifference and/or with reckless

disregard for the truth” . . . “falsely reported and testified” that carpet samples taken from the

living room of Gavitt’s house would not burn without adding an accelerant, and that

chromatographic analysis of the carpet samples showed residues of highly evaporated gasoline.

R. 79, Amended Complaint ¶¶ 23, 26, 51, Page ID 2530, 2536. To the extent the claim is

premised on DeVries’ testimony, the district court ruled that DeVries enjoys absolute immunity.

To the extent the claim is premised on pretrial investigatory acts by DeVries, the court held

DeVries is not entitled to absolute immunity. This ruling is not challenged on appeal.

In response to DeVries’ assertion of qualified immunity, the district court held that,

accepting Gavitt’s allegations as true, he has adequately stated a claim for knowing fabrication of

false and misleading test reports that contributed to a violation of Gavitt’s clearly established

2

Gavitt has not moved for dismissal of the appeal for lack of appellate jurisdiction, but he has preserved the

objection. Moreover, the court is always obliged to assure itself of its own jurisdiction before proceeding. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998).

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 12

civil rights. The Estate insisted that these allegations need not be accepted as true because they

are conclusively contradicted by the public record, but the court rejected the argument:

Even assuming, arguendo, that the Court was inclined to accept Defendant’s

interpretation of DeVries’ conduct based on the extensive public record in this

case, there is a plethora of evidence supporting the opposite conclusion. In fact,

both of the experts retained in connection with Gavitt’s motion for relief from

judgment in the State court concluded that the gas chromatographs did not

indicate the presence of gasoline. While far from dispositive of DeVries’ liability,

the court is hard-pressed to imagine a scenario less deserving of qualified

immunity at the pleadings stage.

R. 93, Opinion at 16–17, Page ID 3020–21 (citations omitted). The court thus determined that

the public record does not conclusively establish that Gavitt’s claim is implausible.

On appeal, the Estate maintains that Gavitt should not be permitted to conclusorily allege

that DeVries “intentionally” fabricated or misrepresented any evidence. The Estate contends the

district court erred by accepting the truthfulness of allegations that “are directly contradicted by

undisputable public records.” The Estate argues the record shows, at worst, that DeVries made a

mistake, and since DeVries is deceased, there is no possibility of developing additional evidence

of his subjective state of mind.

It may be unlikely that discovery will uncover any evidence that the falsity or inaccuracy

in DeVries’ results were the product of intentional deceit or recklessness. Yet, by inviting the

reviewing court to predict or speculate about potential factual development, the Estate asks us to

do precisely what we may not do. Consider the following guidance from McDonald:

Thus, we may decide an appeal challenging the district court’s legal

determination that the defendant’s actions violated a constitutional right or that

the right was clearly established. We may also decide an appeal challenging a

legal aspect of the district court’s factual determinations, such as whether the

district court properly assessed the incontrovertible record evidence. And we may

decide, as a legal question, an appeal challenging the district court’s factual

determination insofar as the challenge contests that determination as “blatantly

contradicted by the record, so that no reasonable jury could believe it.”

We may not, however, decide an appeal challenging the district court’s

determination of “‘evidence sufficiency,’ i.e., which facts a party may, or may

not, be able to prove at trial.” Because such a challenge is purely fact-based,

lacking any issue of law, it “does not present a legal question in the sense in

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 13

which the term was used in Mitchell [v. Forsyth, 472 U.S. 511 (1985)],” and is

therefore not an appealable “final decision” within the meaning of 28 U.S.C.

§ 1291. These types of prohibited fact-based (“evidence sufficiency”) appeals

challenge directly the plaintiff’s allegations (and the district court’s acceptance) of

“what [actually] occurred[ ] or why an action was taken or omitted,” who did it,

or “nothing more than whether the evidence could support a [jury’s] finding that

particular conduct occurred.”

McDonald, 814 F.3d at 812–13 (citations omitted) (emphasis added).

Thus, we lack authority to decide an appeal challenging the district court’s determination

that Gavitt may be able to adduce evidence supporting the allegation that DeVries acted

knowingly or recklessly. The Estate’s appeal challenges the district court’s acceptance of the

adequacy of Gavitt’s allegations of why an action was taken, i.e., why DeVries reported

erroneous test results. It thus represents a “prohibited fact-based evidence sufficiency” appeal

subject to dismissal for lack of appellate jurisdiction.

While the likelihood that discovery will reveal evidence of intentional or reckless

wrongdoing by DeVries may be minimal, it is not inconceivable. And although parts of the state

court record tend to undermine Gavitt’s claim against the Estate, we cannot say those parts so

blatantly and conclusively contradict Gavitt’s allegations that, upon further development of the

record, no reasonable jury could find in his favor. This appeal is thus distinguishable from those

addressed in Scott v. Harris, 550 U.S. 372, 378–80 (2007), and Chappell v. City of Cleveland,

585 F.3d 901, 906 (6th Cir. 2009). In each of those cases, denial of qualified immunity at the

summary judgment stage was reversed because the plaintiff had failed to adduce evidence

creating a triable fact issue on an essential element of a claim. Here, in contrast, at the pleading

stage, Gavitt’s allegation of DeVries’ culpable state of mind is partially refuted by the partially

developed factual record. As the district court observed, however, the state court record also

lends support to Gavitt’s claim. The extant record is neither so complete nor so clear as to

permit a ruling that the Estate’s evidence sufficiency appeal presents a pure legal issue.

It follows that we lack jurisdiction to decide the Estate’s appeal and the appeal must be

dismissed.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 14

III. GAVITT’S APPEAL (No. 15-2434)

A. Jurisdiction

Despite our dismissal of the Estate’s interlocutory appeal in No. 15-2136, we retain

jurisdiction over Gavitt’s appeal challenging the dismissals of his claims against the other

defendants. Although the dismissal of claims against some but not all the defendants would not

ordinarily constitute a final judgment, the district court has certified all three orders of dismissal

that are the subject of this second appeal as a final judgment under Fed. R. Civ. 54(b). The

district court specifically certified that there is no just reason for delay of appeal. Yet, again,

although the certification has not been challenged, the court must still satisfy itself that the

certification was proper. Otherwise, appellate jurisdiction is lacking. Lowery v. Fed. Express

Corp., 426 F.3d 817, 820 (6th Cir. 2005).

The Rule 54(b) certification mechanism is designed to “‘strike a balance between the

undesirability of piecemeal appeals and the need for making review available at a time that best

serves the needs of the parties.’” Id. (quoting Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60

(6th Cir. 1986)). The district court’s certification is comprised of two components: entry of final

judgment as to one or more but fewer than all of the claims or parties; and determination that

there is no just reason for delay. The first component is reviewed de novo; the second for abuse

of discretion. Id. at 821.

As to the first component, considering the grounds on which the district court dismissed

the claims against most defendants, the dismissed claims are distinctly separable from the

unresolved claim against the Estate in that they involve separate actions taken by different actors

with different roles in Gavitt’s criminal case than the role played by DeVries as a lab technician.

In other words, they involve separate claims based on different “operative facts.” See id. In this

regard, we find no error in the court’s denominating the dismissals as “final.” That is,

irrespective of how the record might develop in further proceedings on the unresolved claim

against the Estate, we foresee no grounds on which the dismissals of claims against other

defendants—which ultimately remain undisturbed in this appeal—would be subject to reopening.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 15

The second component—no just reason for delay—required the district court to consider

the interests of judicial administration as well as the equities of the parties. Id. In reviewing for

abuse of discretion, the appellate court does not reweigh the equities or reassess the facts, but

ensures that the lower court’s weighing of interests was sound and supported by the record. Id.

Relevant considerations are:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the

possibility that the need for review might or might not be mooted by future

developments in the district court; (3) the possibility that the reviewing court

might be obliged to consider the same issue a second time; (4) the presence or

absence of a claim or counterclaim which could result in set-off against the

judgment sought to be made final; (5) miscellaneous factors such as delay,

economic and solvency considerations, shortening the time of trial, frivolity of

competing claims, expense and the like.

Id. at 821–22 (quoting Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030 (6th Cir.

1994)).

Review of the district court’s certification order discloses no abuse of discretion. The

court appropriately considered the relationship between the dismissed claims and the unresolved

claim against the Estate. The court also acknowledged the importance of judicial economy,

recognizing that the Estate’s interlocutory appeal created an opportunity for consolidated

appellate review of the dismissals of related claims stemming from the same alleged civil rights

violations. Considering that the actions complained of occurred over 30 years ago, the “no just

reason for delay” consideration is infused with a certain exigency. Any step that potentially

moves the parties closer to a fair and final adjudication is a good step.

Accordingly, we uphold the district court’s certification and determine that we have

jurisdiction to decide Gavitt’s appeal.

B. Standard of Review

At issue in this appeal are three rulings by the district court, all issued on December 15,

2014: (1) Opinion and Order Granting Defendants Fatchett’s and Kalman’s Motion to Dismiss,

R. 65, Page ID 2330; (2) Opinion and Order Granting Motion to Dismiss or for Summary

Judgment Filed by Defendants Ionia County, Gary M. Gabry, Raymond P. Voet, Ronald J.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 16

Schafer, and Gail Benda, R. 67, Page ID 2379; and (3) Opinion and Order Granting Defendants

City of Ionia’s, Kenneth Voet’s, and Randall Klein’s Motion for Judgment on the Pleadings or in

the Alternative for Summary Judgment, R. 68, Page ID 2417.3

Each of the rulings, under Fed. R. Civ. P. 12(b)(6) and 12(c), is reviewed de novo under

the same general standards. STEW Farm, Ltd. v. Nat. Res. Conservation Serv., 767 F.3d 554,

558 (6th Cir. 2014). The complaint is viewed in the light most favorable to Gavitt; the

allegations in the complaint are accepted as true, and all reasonable inferences are drawn in his

favor. Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008). However, “a legal conclusion

couched as a factual allegation” need not be accepted as true. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007). Gavitt’s obligation to provide the “grounds” for the claimed

entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Id. The factual allegations must “raise a right to

relief above the speculative level.” Id. The complaint must state a claim that is plausible on its

face, i.e., the court must be able to draw a “reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This “plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly,

550 U.S. at 557).

Assessment of the facial sufficiency of the complaint must ordinarily be undertaken

without resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d

1102, 1104 (6th Cir. 2010). If a court does consider material outside the pleadings, the motion to

dismiss must be treated as a motion for summary judgment under Rule 56 and all parties must be

given a reasonable opportunity to present all material pertinent to the motion. Id. However, a

court may consider exhibits attached to the complaint, public records, items appearing in the

record of the case, and exhibits attached to defendant’s motion to dismiss, so long as they are

3

The district court adjudicated each of these motions under Fed. R. Civ. P. 12 rather than Fed. R. Civ. P.

56. R. 65, Opinion at 2, Page ID 2331; R. 67, Opinion at 2, Page ID 2380; R. 68, Opinion at 2, Page ID 2418.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 17

referred to in the complaint and are central to the claims contained therein, without converting

the motion to one for summary judgment. Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th

Cir. 2015); Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

Qualified immunity, if it applies, is a defense not just against liability, but against suit

itself. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Hence, the immunity questions should be

resolved as early in the litigation as possible. Id. Yet, if the qualified immunity questions

presented are fact-intensive, the record may not be adequately developed to evaluate the defense

at the pleading stage under Rule 12(b)(6). See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th

Cir. 2015).

Qualified immunity shields government officials from liability for civil damages if their

actions did not violate clearly established statutory or constitutional rights of which a reasonable

person would have known. Id. The court must therefore determine (1) whether the facts alleged

by the plaintiff make out the violation of a constitutional right and (2) whether the right at issue

was “clearly established” at the time of the alleged violation. Pearson, 555 U.S. at 232. “The

court may address these prongs in any order, and if the plaintiff cannot make both showings, the

officer is entitled to qualified immunity.” Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015)

(citing Pearson, 555 U.S. at 236). Qualified immunity “‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the

law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343

(1986)). Qualified immunity applies irrespective of whether the official’s error was a mistake of

law or a mistake of fact, or a mistake based on mixed questions of law and fact. Pearson,

555 U.S. at 231.

Since defendants raised the qualified immunity defense, Gavitt bears the burden of

showing that defendants are not entitled to qualified immunity. Johnson v. Moseley, 790 F.3d

649, 653 (6th Cir. 2015). At the pleading stage, this burden is carried by alleging facts making

out a plausible claim that defendants’ conduct violated a constitutional right that was clearly

established at the time of the violation. Id. To satisfy this requirement, the right allegedly

violated must have been clearly established in a “particularized” sense, such that a reasonable

official confronted with the same situation would have known that his actions would be in

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 18

violation of that right. Brosseau v. Haugen, 543 U.S. 194, 199–200 (2004); Johnson, 790 F.3d at

653. “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a

defendant pleading qualified immunity is entitled to dismissal before the commencement of

discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982) (observing that “bare allegations . . . should not suffice to subject government

officials either to the costs of trial or to the burdens of broad-reaching discovery.”)).

C. Count II Claim for Intentional Misrepresentation of Evidence

(Against Defendants Fatchett and Kalman)

In his complaint, Gavitt asserted various civil rights claims against numerous persons

involved in the prosecution of the criminal charges against him. Count I of his original

complaint asserted a claim for misrepresentation of evidence exclusively against John E.

DeVries, deceased, a former Michigan State Police forensic lab technician. That claim, later

embodied in an amended complaint, is the subject of appeal No. 15-2136, addressed above.

Count II sets forth a civil rights claim under 42 U.S.C. § 1983 for intentional misrepresentation

of evidence against former Michigan State Police Detectives John P. Fatchett and John J.

Kalman, Jr., who participated in the investigation of the house fire. Fatchett and Kalman moved

to dismiss the claim under Rule 12(b)(6) and the district court granted the motion. On appeal,

Gavitt maintains that the dismissal was premature.

Count II alleges that Fatchett and Kalman misrepresented evidence in reports and

testimony, resulting in a denial of due process and contributing to Gavitt’s wrongful conviction

and imprisonment. R. 1, Complaint at 41–42, Page ID 41–42. In essence, the claim is that

Fatchett and Kalman misrepresented that “they had considered and excluded all accidental

causes of the house fire, when in fact they had not even attempted to consider and eliminate all

accidental causes of the house fire before they erroneously presumed that the fire was caused by

incendiary means.” Id. at 41, Page ID 41. To the extent this claim implicates testimony given by

the officers in Gavitt’s preliminary examination and trial, the district court held that Fatchett and

Kalman are entitled to absolute immunity, citing Moldowan v. City of Warren, 578 F.3d 351 (6th

Cir. 2009). Gavitt does not challenge this part of the ruling.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 19

To the extent Count II can be construed as alleging that defendants Fatchett and Kalman

violated Gavitt’s due process rights by continuously failing to correct their misrepresentation

during the 26-year period of his wrongful imprisonment, the district court viewed the allegations

as a claim for post-conviction failure to disclose exculpatory evidence (i.e., Brady materials).

The court held that due process does not impose on the prosecution a post-conviction obligation

to disclose exculpatory evidence, citing District Attorney’s Office for Third Judicial District v.

Osborne, 557 U.S. 52, 68–69 (2009). Gavitt has not challenged this part of the ruling.

Finally, the district court construed Count II as challenging the adequacy of defendants

Fatchett’s and Kalman’s pretrial fire investigation, i.e., their failure to consider and eliminate all

possible accidental causes of the house fire before investigating for arson. The district court held

that such a claim does not make out a violation of a clearly established constitutional right and

held that defendants are entitled to qualified immunity. The court relied on Yancey v. Carroll

Cty., Ky., 876 F.2d 1238, 1245 (6th Cir. 1989) (holding that officers were entitled to rely on the

judicial officer’s finding of probable cause in issuing the search warrant unless they knowingly

made false statements to obtain the warrant, and that a challenge to the adequacy of the officer’s

investigation does not rise to level of clearly established constitutional violation); and Buchanan

v. Metz, 6 F. Supp. 3d 730, 757–59 (E.D. Mich. 2014) (holding that the Sixth Circuit, like most

circuits, has not recognized a substantive due process claim based on an inadequate

investigation); and Latta v. Chapala, 221 F. App’x 443, 444–45 (7th Cir. 2007) (holding that

there is no constitutional duty to do a better investigation and that a decision not to conduct a

more thorough investigation does not invade an accused’s rights).

Gavitt does not challenge the above authorities, but argues that the district court

mischaracterized his claim. He emphasizes that Count II complains not that the investigation

was not adequate, but that defendants, in their investigative report, falsely represented that it was

adequate. This alleged misrepresentation of the completeness of their investigation is said to

support Gavitt’s claim that Fatchett and Kalman are liable for contributing to the denial of his

due process rights. In support, Gavitt cites Sykes v. Anderson, 625 F.3d 294, 306 (6th Cir. 2010)

(knowingly falsifying material facts necessary to establish probable cause to prosecute innocent

person is unconstitutional); Hinchman v. Moore, 312 F.3d 198, 205–06 (6th Cir. 2002) (same);

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 20

and Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006) (constitutional rights are

violated when evidence is knowingly fabricated and a reasonable likelihood exists that the false

evidence affected the decision of the jury).

The specific alleged misrepresentation must be considered in context. The representation

Gavitt focuses on appears in Kalman’s March 1985 investigation report:

D/SGT. JOHN FATCHETT and undersigned officer, after observing the damage

to the residence and eliminating all accidental and natural causes, centered the

investigation to the living room area of the residence.

R. 31-5, Kalman Report at 5, Page ID 890 (emphasis added). Gavitt now focuses on the word

“all” and contends the statement is inaccurate. That is, because we now know that methods of

fire investigation used in 1985 sometimes produced unreliable and misleading results, as they did

in Gavitt’s trial (i.e., the erroneous conclusion that an accelerant was used to start the fire), Gavitt

infers that Fatchett’s and Kalman’s examination of accidental and natural causes must not have

been complete. Gavitt alleges that Fatchett and Kalman “had not even attempted to consider and

eliminate all accidental causes of the house fire before they erroneously presumed that the fire

was caused by incendiary means.” R. 1, Complaint at 41, Page ID 41. Because Gavitt has

alleged that defendants intentionally misrepresented the completeness of their investigation, he

contends his allegations pass muster under Rule 12(b)(6) and he is entitled to discovery.

The above quoted statement appears at the top of page 5 of Kalman’s report, which

originally consisted of eleven pages, and was later supplemented with eight more pages of

additional findings as the investigation continued.4 The statement appears immediately after

three full pages of single-spaced text detailing the officers’ inspection of the Gavitt residence the

day after the house fire—including the construction, ventilating system, electrical service,

appliances, exterior condition, and interior observations. In other words, the summary statement

indicating that Fatchett and Kalman had observed the damage to the residence and eliminated all

accidental and natural causes did not stand alone; it was a summary of three pages of findings.

4

Gavitt does not contest defendants’ position that the public record compiled in state court when he sought

relief from judgment is properly considered part of his complaint for purposes of evaluating the complaint under

Rule 12(b)(6). See Bassett, 528 F.3d at 430.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 21

Further, the summary statement was not provided to explain, as Gavitt alleges, “why they

erroneously presumed that the fire was caused by incendiary means,” but rather why their

investigation turned to examination of the burn patterns in the living room. It was the

examination of the living room burn patterns that led Kalman to preliminarily conclude (as of the

date of the original report) that “the origin of the fire was in the middle of the living room and

because of the spread of a flammable liquid, it fed back into the hallway.” R. 31-5, Kalman

Report at 5–6, Page ID 890–91. The investigation remained ongoing. Id. at 11, Page ID 896.

Kalman’s preliminary opinion later found additional support in flame spread tests conducted on

March 22, 1985 in the Michigan State Police lab (finding that living room carpet samples ignited

and burned longer after gasoline was added), see id. at 12–14, Page ID 897–99, and in the

chromatographic test results reported in John DeVries’ April 4, 1985 lab report (finding living

room carpet samples contained residues of highly evaporated gasoline), see R. 89-3, DeVries

Lab Report, Page ID 2757.

Reading the one-sentence statement at the heart of this claim in context rather than in

isolation thus undermines the implied allegation that Kalman’s statement that he and Fatchett

“eliminated all accidental and natural causes” was a statement of “material” fact necessary to

Gavitt’s prosecution and conviction. That is, the statement described one preliminary step in the

investigation that led to further investigation of the cause of the fire. The continuing

investigation yielded other evidence tending to support the conclusion that the fire was

intentionally caused with use of a liquid accelerant. Even if the statement were shown to be

false, and even if it were shown to have been made by Kalman with knowledge that he and

Fatchett had not actually eliminated every possible accidental cause of the fire before

investigating the possibility of arson, the notion that this statement, in a preliminary report, apart

from the testimony and physical evidence presented at trial, played such a material role in the

jury’s verdict as to make out a denial of due process is simply not plausible. See Iqbal, 556 U.S.

at 678–79. Gavitt’s obligation to provide the “grounds” for the claimed entitlement to relief

“requires more than labels and conclusions;” the factual allegations must “raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 22

Moreover, the conclusion that Gavitt’s reliance on a single arguably inaccurate statement

in a 19-page investigation report is too speculative to be actionable as a due process violation is

corroborated by other items in the public record. The expert affidavits that supported Gavitt’s

own motion for relief from judgment in state court (summarized above at 5–9) acknowledge that

defendants’ flawed investigation and erroneous interpretation of the physical evidence were not

the product of intentional wrongdoing, but of a mistaken understanding consistent with the then-

accepted fire investigation standards.

Indeed, the affidavits of Gavitt’s own experts John Lentini and James Churchwell are

telling. Describing the quality of fire investigation methods in 1985, Lentini characterized them

as “inconsistent and largely unscientific.” R. 31-2, Lentini Aff. at ¶ 15, Page ID 678. Lentini

acknowledged that “the State’s witnesses may have believed they were testifying truthfully,” id.

at ¶ 27, Page ID 682, and he characterized their conclusions, reviewed under today’s standards,

as “false and misleading, albeit without malicious intent,” R. 31-3, Lentini Aff. at ¶ 70, Page ID

713. Lentini also acknowledged that the gas chromatography testing method used in 1985, the

same technology used in Lentini’s own laboratory at that time, provided “far less information”

than the technology typically used today. Id. at ¶ 83, Page ID 720. He viewed the fire

investigators’ manner of conducting “flame test experiments” as demonstrating “their complete

lack of understanding of post-flashover fire behavior”—flashover being a concept that was not

generally accepted until the 1990s. Id. at ¶¶ 91–92, Page ID 724.

Churchwell said he was in “100 percent” agreement with Lentini’s affidavit. R. 31-3,

Churchwell Aff. at ¶ 9, Page ID 859. And Churchwell, like Lentini, characterized the

conclusions drawn by the prosecution’s fire investigators as a mistake: “As cautious and careful

as I always try to be, I would likely have made the same mistake upon seeing the Gavitt fire

scene in 1986: Fire investigators simply did not have enough knowledge about the true nature of

enclosed (compartment) fires at that time.” Id. at ¶ 12, Page ID 861.

Thus, the assessment of Gavitt’s own experts clearly indicates that defendants Fatchett’s

and Kalman’s investigation of the house fire was not inconsistent with the generally accepted fire

investigation methods and standards of the time. Their description of the investigation, viewed

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 23

in the light most favorable to Gavitt, might be viewed as supporting, at worst, an inference of

negligence, but falls far short of suggesting intentional or reckless misrepresentation.

To withstand scrutiny under Rule 12(b)(6), the complaint must state a claim that is

plausible on its face, not merely possible. This means that the court must be able to draw a

reasonable inference that defendants are liable for the misconduct alleged. See Iqbal, 556 U.S. at

678. While Count II of Gavitt’s complaint facially alleges that defendants Kalman and Fatchett

knowingly misrepresented the adequacy of their investigation, it does not contain factual

allegations that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

In other words, the facts alleged stop short of the line between possibility and plausibility.

Further, the public record implicated by the claim, which is appropriately considered under Rule

12(b)(6) based on Gavitt’s reference thereto in his complaint, see Bassett, 528 F.3d at 430, tends

to undermine the reasonableness of any inference that defendants knowingly made any material

misrepresentation. Because Gavitt’s complaint, viewed in conjunction with the public record,

does not include “enough fact to raise a reasonable expectation that discovery will reveal

evidence” of the claimed constitutional violation, it fails to meet the plausibility standard.

See Twombly 550 U.S. at 556.

In granting Fatchett’s and Kalman’s motion to dismiss, the district court cited Latta v.

Chapala, a Seventh Circuit case affirming the dismissal of similar civil rights claims stemming

from what was later revealed to be a flawed arson investigation. After observing that “there is no

constitutional duty to ‘do a better investigation,’” the court made the following remarks that are

no less fitting in this case:

We acknowledge that the methods that arson investigators used in the

1980s and 1990s have come under challenge; most experts today would use

different approaches and therefore could reach different conclusions. . . . Using

the methods of the 1980s during the 1980s does not violate the Constitution. The

criminal process, like other human endeavors, is imperfect. Science is imperfect

too; techniques of arson investigation and analysis have advanced a good deal in

the years since the fire at the Lattas’ home. Perhaps an injustice has been done, as

the Lattas ardently maintain. Section 1983 does not, however, supply monetary

damages for every conviction that with the benefit of hindsight seems weaker to

the federal judiciary than it did to the prosecutor, jury, and state judiciary.

Latta, 221 F. App’x at 444–45.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 24

Gavitt’s Count II claim against defendants Fatchett and Kalman suffers from the same

infirmities as the claim addressed by the Seventh Circuit in Latta. Gavitt has failed to allege

facts that raise the right to relief for denial of due process above the speculative level. It follows

that Gavitt has not stated a plausible claim of entitlement to relief and that defendants’ motion to

dismiss Count II was properly granted.

D. Count III Claim for Conspiracy to Violate Due Process Rights

(Against Defendants Gabry, Voet, Klein, Kalman and Fatchett)

In Count III, Gavitt asserts a claim against former Ionia County Prosecutor Gary M.

Gabry, two former City of Ionia Police Officers, Police Chief Kenneth E. Voet and Sgt. Randall

W. Klein, and Michigan State Police Detectives Fatchett and Kalman. Based on a meeting of

these five defendants on March 12, 1985, referred to as a “skull session,” Gavitt alleges they

conspired to deny him due process. Specifically, he alleges “they all mutually agreed, without

any judicial review, laboratory analysis, scientific basis, or reasonable belief, and in willful and

wanton disregard for the truth,” that the house fire was set by him. R. 1, Complaint ¶ 234, Page

ID 43. The district court identified various deficiencies in this claim and dismissed it as to all

five defendants.

In evaluating the district court’s rulings on the conspiracy claim, we note that the object

of the allegedly unlawful conspiracy revolves largely around defendants’ reliance on evidence

they allegedly knew to be false, but evidence which, as seen above, was generally considered to

be reliable under fire investigation standards generally accepted in the 1980s, as acknowledged

by Gavitt’s own experts.

1. Prosecutor Gabry

The district court undertook a lengthy analysis of Gabry’s entitlement to absolute

immunity. Insofar as Count III can be construed as complaining of conduct with functional ties

to the judicial process, the court held that Gabry is absolutely immune, citing Koubriti v.

Convertino, 593 F.3d 459, 467–68 (6th Cir. 2010). Specifically, Gabry was held to be immune

from liability for knowing use of false testimony and non-disclosure of exculpatory information

in judicial proceedings. Gavitt has not challenged this ruling.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 25

Insofar as Count III can be construed as alleging a conspiracy to refrain from disclosing

exculpatory evidence after Gavitt’s conviction, the court held there is no such post-conviction

disclosure obligation, citing Osborne, 557 U.S. at 68–69. Gavitt has not challenged this part of

the ruling.

To the extent Count III alleges that Gabry’s participation in the March 12, 1985 “skull

session” evidences involvement in an investigatory conspiracy, the district court recognized that

prosecutorial immunity does not apply. But the court held that no valid claim was stated against

Gabry based on the same authorities (Yancey, Buchanan and Latta) and the same reasoning that

it applied to the intentional misrepresentation claim against Fatchett and Kalman, addressed

supra at 21–22. Gavitt challenges this part of the ruling only by arguing that absolute

prosecutorial immunity does not apply to Gabry’s affording of legal advice to the police, citing

Koubriti, 593 F.3d at 467, and that his allegations are sufficient to warrant discovery.

Again, Gavitt’s argument is off target and unavailing. For the reasons set forth above at

pp. 22–27, the claim that Gabry conspired with Fatchett and Kalman on March 12 to investigate

the possibility that the house fire was caused by arson does not state a plausible claim for

conspiracy to violate Gavitt’s civil rights. Again, the extant evidence, from the public record and

Gavitt’s own experts, supports the conclusion only that the decision to investigate potential non-

accidental causes of the fire was based on Fatchett’s and Kalman’s inspection of the premises

and their observations of the burn patterns in the house. While their investigation and

interpretation of their findings now appear to have been flawed, they also appear to have been

consistent with generally accepted methods and standards at the time. The notion that Gabry

participated in a nefarious plot to intentionally subvert justice finds no support in the extant

record. Gavitt’s arguments about potential incriminating fruits of discovery are too speculative

to justify disturbing the dismissal of this claim against Gabry.

2. Fatchett and Kalman

The district court dismissed the Count III conspiracy claim against Fatchett and Kalman

on much the same grounds that applied to the claim against Gabry. R. 65, Opinion at 20–24,

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 26

Page ID 2349–53. One aspect of its ruling, as challenged by Gavitt on appeal, deserves

additional attention.

To the extent Fatchett and Kalman are alleged to have conspired with Gabry to not

disclose exculpatory evidence (e.g., evidence that the Michigan State Police crime lab had

experienced contamination of fire debris samples and false-positive arson test results, see R. 1,

Complaint at 44, Page ID 44), the district court held the allegations failed to make out a violation

of a duty that Fatchett and Kalman owed to Gavitt. Citing D’Ambrosio v. Marino, 747 F.3d 378,

389–90 (6th Cir. 2014), the court held that the duty to disclose exculpatory evidence rests with

the prosecutor. Fatchett and Kalman would have fulfilled their obligation, the court held, by

disclosing apparently exculpatory evidence to Gabry. See D’Ambrosio, 747 F.3d at 389–90. The

court noted that if Fatchett and Kalman had, as alleged, conspired with Gabry not to disclose

such evidence to Gavitt, they must necessarily have disclosed their knowledge of the evidence to

Gabry, thereby satisfying their duty under Brady. Accordingly, the court held that Gavitt had

failed, in this regard, to state a plausible conspiracy claim against Fatchett and Kalman.

Gavitt contends the district court erred in this ruling. He insists that D’Ambrosio says

nothing about the officers’ liability for conspiracy. If Fatchett and Kalman conspired with Gabry

to suppress the exculpatory evidence and Gabry in fact failed to disclose the evidence to the

defense in Gavitt’s trial, the argument goes, then even though Gabry would be protected from

liability for the nondisclosure by prosecutorial immunity, Gabry and the officers could be liable

for their unlawful pretrial conspiracy.

Yet, even if Gavitt’s logic holds up, the requisite fact allegations are lacking. While

Gavitt alleged that defendants agreed to conceal the exculpatory evidence at the skull session, he

has included no specific factual support for the allegation. “Although circumstantial evidence

may prove a conspiracy, ‘[i]t is well-settled that conspiracy claims must be pled with some

degree of specificity and that vague and conclusory allegations unsupported by material facts

will not be sufficient to state such a claim under § 1983.’” Heyne v. Metro. Nashville Pub. Sch.,

655 F.3d 556, 563 (6th Cir. 2011) (quoting Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.

2003)). This pleading standard is “relatively strict.” Id. (quoting Feiger v. Cox, 524 F.3d 770,

776 (6th Cir. 2008)). The factual allegations underlying Gavitt’s § 1983 conspiracy claim are no

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 27

more specific than his allegations made in support of other claims that have already been deemed

insufficient to state a plausible claim for relief under the Twombly/Iqbal pleading requirements.

Because the factual allegations in the conspiracy claim against Fatchett and Kalman are similarly

deficient, it was also properly dismissed.

3. Voet and Klein

The Count III conspiracy claim against defendants Voet and Klein was dismissed by the

district court for reasons indistinguishable from those applicable to the same claim against

Fatchett and Kalman. And for the reasons discussed above, the dismissal of the conspiracy claim

against Voet and Klein must also be upheld. Accordingly, we affirm the district court’s

dismissal of the Count III conspiracy claim against all five defendants.

E. Count IV Claim for Failure to Disclose Exculpatory Evidence

(Against All MSP Defendants)

In Count IV, Gavitt alleged that the Michigan State Police defendants withheld material

exculpatory evidence (e.g., evidence that the MSP crime lab had experienced false-positive and

other unreliable arson test results, see R. 1, Complaint at 45, Page ID 45) at the time of his trial

and throughout the period of his imprisonment, in violation of his due process rights. The

district court dismissed this claim, citing D’Ambrosio, 747 F.3d 389–90, for the proposition that

these particular defendants satisfied their duty insofar as the evidence was impliedly (by virtue of

Gavitt’s Count III conspiracy claim) disclosed to Prosecutor Gabry, and citing Osborne,

557 U.S. at 68–69, for the proposition that there is no post-conviction disclosure obligation.

Gavitt challenges this ruling as to defendants Fatchett and Kalman, contending that

dismissal is premature and that the district court failed to view the allegations in the light most

favorable to him. Yet, again, Gavitt has failed to identify specific factual support for the

argument that the defendants “potentially failed” to share the exculpatory evidence with Gabry.

His claim of entitlement to relief on this basis thus remains speculative and insufficiently

supported to withstand the defendants’ motion to dismiss.

Nor is Gavitt’s attempt to narrow the holding of Osborne persuasive. In Osborne,

557 U.S. at 68, the Supreme Court noted that “nothing in our precedents” suggests that the

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 28

prosecutor’s obligation to disclose Brady material to the defendant before trial continues after the

defendant is convicted and the case is closed. Gavitt has failed to cite any contrary authority. To

the extent due process could be deemed to include such an obligation, it is not yet a matter of

clearly established law and defendants are entitled to qualified immunity. It follows that the

district court did not err by dismissing Count IV.

F. Counts VI and VII Claims for Municipal Liability

(Against Gabry, Ionia County and City of Ionia)5

In Counts VI and VII, Gavitt alleged that Ionia County and the City of Ionia are liable for

the actions of defendants Prosecutor Gabry (and his successors) and Police Chief

Voet (and his successors), whose actions as final decision makers and official policy makers for

the County and City, respectively, were taken pursuant to official policies, practices or customs,

and violated Gavitt’s civil rights. The district court dismissed these claims. The court held that

Gabry and his successors, as county prosecutors enforcing criminal laws on behalf of the State of

Michigan, are entitled to Eleventh Amendment immunity for actions brought against them in

their official capacity, citing Cady v. Arenac Cty., 574 F.3d 334, 342–43 (6th Cir. 2009). The

court also held that Ionia County is not liable for actions allegedly taken by Gabry and his

successors in a particular prosecution because Gavitt did not allege that such actions were taken

pursuant to a policy attributable to the County, citing D’Ambrosio, 747 F.3d 387–88. Finally, the

court dismissed the claim against the City of Ionia on the grounds that Gavitt had failed to allege

facts establishing a causal link between the alleged violation of his due process rights and any

policy, practice, or custom of the City, citing Bright v. Gallia Cty., Ohio, 753 F.3d 639, 660 (6th

Cir. 2014).

Gavitt challenges these rulings on various grounds. Yet, to survive a motion to dismiss, a

§ 1983 claim for municipal liability based on actions taken pursuant to official policy, practice or

custom must include adequate allegations “(1) that a violation of a federal right took place,

(2) that the defendants acted under color of state law, and (3) that a municipality’s policy or

custom caused that violation to happen.” Id. at 660. Based on the analysis set forth above, it is

now clear that Gavitt has failed to meet the first of these three elements because he has failed to

5

Gavitt has not challenged the dismissal of his Count V claim in this appeal.

Nos. 15-2136/2434 Gavitt v. Born, et al. Page 29

allege a plausible claim for violation of his due process rights by the individual defendants.

Accordingly, the Count VI and VII official-capacity and municipal-liability claims were also

properly dismissed.

G. Wrap-Up

At this point, there can be no doubt that David Gavitt was convicted and imprisoned

based on evidence now known to be unreliable. While Gavitt, with hindsight, may seem to have

been “wronged,” he has failed to allege sufficiently specific facts to support his claims that any

of the defendants-appellees in this case acted with such culpable state of mind as to warrant relief

under § 1983. Due process guarantees a right to a fair trial, not perfection. Scott v. Mitchell,

209 F.3d 854, 881 (6th Cir. 2000). As the Seventh Circuit observed in Latta v. Chapala,

“[u]sing the methods of the 1980s during the 1980s does not violate the Constitution.” 221 F.

App’x at 445. The district court employed similar reasoning in concluding that defendants are

entitled to qualified immunity. The above analysis confirms the appropriateness of all dismissals

challenged in this appeal, No. 15-2434.

IV. CONCLUSION

In sum, the appeal presented in Case No. 15-2136, challenging the denial of the motion to

dismiss the amended complaint against the Estate of DeVries, is DISMISSED for lack of

appellate jurisdiction. As to the appeal presented in Case No. 15-2434, the district court’s

judgment dismissing all claims against the remaining defendants is AFFIRMED.