Mettetal v. Vanderbilt Univ , 147 F. App'x 577 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0772n.06
Filed: September 1, 2005
Nos. 04-5349, 04-5504
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RAY W. METTETAL, JR., )
)
Plaintiff-Appellant, )
)
v. )
)
VANDERBILT UNIVERSITY, Legal )
Department; EDNA SUE PULLY; )
JENNIFER D.K. WEST; DONNIE )
YOUNG; JOHN JACKSON; JAMES )
CAMPBELL; ALLEN R. GUYET; )
METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, TENNESSEE; THOMAS )
BURKE; BRAD PUTNAM; DAVID ) ON APPEAL FROM THE
MILLER; J. STEPHEN DICKEY; ) UNITED STATES DISTRICT
DAVID DIXON; HARRISONBURG ) COURT FOR THE MIDDLE
POLICE DEPARTMENT; D. W. ) DISTRICT OF TENNESSEE
COX; TOM D. HOOVER; W. H. )
FRANK; S. ANTOINE; W. H. )
HOLLOWAY; KENNETH ) OPINION
HUTTON; L. M. MILLER; )
THOMAS )
JACOBS; HILLIARD HESTER; )
THOMAS THURMAN; LISA )
NAYLOR; RAY B. FITZGERALD, )
JR.; JOHN BURNS EARLE, III, et )
al.; MARSHA GARST; ANN )
KELLEHER; DREW )
RICHARDSON; JAMES P. )
BURANS; JOHN F. HEWETSON; )
JENNIFER HAGER; DIRECTOR )
BUREAU OF PRISONS; PATRICK )
T. MCNALLY; UNKNOWN JAIL )
EMPLOYEES; GAYLE RAY, )
Sheriff; GRAY, Officer; OFFICERS )
OF VANDERBILT UNIVERSITY; )
UNKNOWN METRO PD
DETECTIVES; DON AARON;
2
STEPHEN J. DEWALT; JOSEPH M. )
BROOKS; JAMES H. MICHAEL, )
JR.; JANET CLARK; RICARDO )
BRADFORD; METROPOLITAN )
WASHINGTON AIRPORT )
AUTHORITY POLICE )
DEPARTMENT, )
)
Defendants-Appellees. )
_______________________________________)
Before: MOORE and COOK, Circuit Judges, and GWIN*, District Judge.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Ray W. Mettetal, Jr.
(“Mettetal”), proceeding pro se, appeals the district court’s orders dismissing the underlying civil
rights action against various defendants. Mettetal’s suit raises a variety of claims based on
Mettetal’s 1995 arrest on the Vanderbilt University campus; his subsequent prosecution in the U.S.
District Court for the Western District of Virginia on charges of possession of false identification
documents in violation of 18 U.S.C. § 1028(a)(3) and possession of a toxin in violation of 18 U.S.C.
§ 175; and the eventual reversal of his convictions based on a determination by the U.S. Court of
Appeals for the Fourth Circuit that Mettetal was unlawfully arrested and that the evidence used to
convict him was the fruit of that unlawful arrest. For the reasons set forth below, we AFFIRM IN
PART, REVERSE IN PART, VACATE IN PART, and REMAND for further proceedings.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
3
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
In considering Mettetal’s motion to set aside his conviction, the U.S. Court of Appeals for
the Fourth Circuit in United States v. Mettetal, No. 99-4013, 2000 WL 530330 (4th Cir. May 3,
2000) (“Mettetal I”), summarized the facts underlying this suit as follows:
Mettetal was arrested while walking along a sidewalk on the campus of
Vanderbilt University on August 22, 1995. It appears that Mettetal’s presence on the
campus that day had something to do with a man against whom he held a
longstanding grudge. That man was Dr. George Allen, Chairman of the
Neurosurgery Department at the Vanderbilt University Medical Center. Almost a
dozen years earlier, Mettetal, who is a physician, started a residency in neurosurgery
at Vanderbilt under the direction of Dr. Allen. When Dr. Allen suggested that
Mettetal’s progress at the end of his first year was not quite up to par, Mettetal
abruptly resigned from the program. Although Mettetal eventually finished a
residency in neurology at Vanderbilt, he blamed Dr. Allen for denying him a career
as a neuro-surgeon. For years Mettetal kept track of Dr. Allen’s whereabouts and
activities, and it could be inferred that Mettetal was making plans to exact revenge.
However, when the Vanderbilt campus police arrested Mettetal, they knew nothing
of his grudge against Dr. Allen. Instead, what they knew about Mettetal was gleaned
from a complaint and a forty-minute encounter with him.
At around 9:50 a.m. on August 22, 1995, Christy Wilson, a medical center
employee, saw Mettetal on the second floor of the institution’s parking garage.
Wilson became suspicious because Mettetal was “looking around at cars” and was
wearing a fake beard, a wig, and a dark suit on what was a hot, 90-degree morning.
Wilson called the Vanderbilt campus police, and Sergeant James Campbell, Officer
Jennifer West, and several other officers responded. The officers were advised by
the dispatcher that “there was a male subject wearing a beard and he had been going
through the garage parking lot.” Officer West was instructed to go to the scene (the
second floor of the garage), and Sergeant Campbell drove around the outside of the
garage in his patrol car. As Officer West neared the garage, Sergeant Campbell
radioed, saying that he was already talking with the man on Garland Avenue, a street
that fronted the garage.
Sergeant Campbell had spotted Mettetal from his patrol car at about 10:00
a.m. Campbell noticed that Mettetal “had a dark wig on, a beard, and he was
wearing a three piece suit” and carrying a black nylon bag. (Another officer said that
Mettetal, who is white, “had an obvious fake Afro wig and a fake beard that looked
like Abraham Lincoln.”) Sergeant Campbell stopped his car a few feet behind
4
Mettetal, got out, and called for Mettetal to stop. Mettetal complied. Campbell then
instructed Mettetal to put down his bag, and asked Mettetal “his business.” Mettetal
put down his bag and responded to Campbell’s question by saying that “he had a
girlfriend that he was trying to — he [thought] she was seeing someone else and he
was watching her.” After accusing Mettetal of stalking, the officer asked him the
woman’s name. Mettetal replied that he would rather not give her name.
At about this time Officer West and several other officers arrived and
positioned themselves around Mettetal. Sergeant Campbell and at least one other
officer continued to question Mettetal, who repeatedly declined to provide any
information. Mettetal did ask to speak with a lawyer, but this request was ignored.
When Campbell asked Mettetal for identification, Mettetal at first said he had none.
Campbell continued to press Mettetal for identification, finally saying, “sir, if you
can’t produce any identification, I’m going to have to take you down for
trespassing.” At that point, Mettetal gave Sergeant Campbell “British West Indies”
identification (“ID”) in the name of Steven Ray Maupin. The officers suspected that
the ID was a fake. This suspicion was based on the fact that the ID’s covering had
rough edges, indicating that it had been laminated quite recently. For about the next
thirty minutes the officers had their dispatcher run computer checks on the name
Steven Ray Maupin. In the meantime, Mettetal was perspiring heavily in the hot sun,
and his fake beard and moustache had begun to peel off. Still, he was calm and
polite throughout the encounter.
After the computer checks produced no information, Mettetal was arrested
for criminal trespass. . . .
After Mettetal was placed under arrest, his bag and person were searched.
In the bag, the police found, among other things, sketches and information about an
automobile, fake tattoos, and a large hypodermic syringe filled with a clear liquid.
On him, they found more identification in the name of Steven Ray Maupin. Once
Mettetal was taken into custody, he refused to answer questions or to disclose his
true identity. The next day, the Nashville police learned from the FBI that he was
Ray Wallace Mettetal, Jr., a medical doctor from Harrisonburg, Virginia.
On August 25, 1995, three days after Mettetal’s arrest, Virginia police
obtained warrants to search his home and office. The information used to support
these warrants came directly from the circumstances surrounding Mettetal’s arrest,
the search incident to his arrest, and discussions with his children and former wife.
(The police learned from Mettetal’s family that he hated Dr. Allen and that he owned
several high-powered firearms.) The search of Mettetal’s office produced nothing
of consequence. But in Mettetal’s home the police found bogus identification
documents in the name of Steven Ray Maupin, fake hair, moustaches, makeup, a
hospital uniform from the Vanderbilt medical center, and a book on disguise
techniques that contained notes describing the home, cars, and personal history of
Dr. Allen. The Maupin identification materials had Mettetal’s photo on them.
5
Within a day or two of Mettetal’s arrest, a story about it (and his use of the
Maupin alias) appeared in a local Virginia newspaper. An employee at a
Harrisonburg mini-storage unit facility saw the story and reported to the police that
he had rented a unit in December 1994 to someone purporting to be Steven Ray
Maupin. Using the information discovered as a result of Mettetal’s arrest, including
that gleaned from the search of his home, the police obtained a warrant for the search
of the storage unit. The search of the unit turned up a large jar of ricin, a deadly
toxin.
Id. at **1-3.
In addition to the searches of Mettetal’s residence and storage unit by the Harrisonburg
Police Department, a search of Mettetal’s car was also conducted by the Metropolitan Washington
Airport Authority (“MWAA”) Police Department at Washington National Airport (“National
Airport”) in Arlington, Virginia. See United States v. Mettetal, No. 3:96-CR50034, 2001 WL
1013230, at *3 (W.D. Va. Aug. 31, 2001). It appears that the search warrant executed by the
MWAA relied upon information supplied by Tennessee law enforcement. See id. at *4.
B. Procedural History
1. Criminal Proceedings
In 1998, Mettetal was tried and convicted in the U.S. District Court for the Western District
of Virginia on two federal charges: possession of a toxin (i.e., ricin) for use as a weapon, in
violation of 18 U.S.C. § 175, and possession with intent to use five or more false identification
documents, in violation of 18 U.S.C. § 1028(a)(3).1 The Fourth Circuit vacated Mettetal’s
1
In August 1995, Mettetal was also indicted in the U.S. District Court for the Middle District
of Tennessee for violation of 18 U.S.C. § 1001 (i.e., mail fraud). United States v. Mettetal, No.
01-5757, 2002 WL 927023, at **1 (6th Cir. May 7, 2002) (“Mettetal IV”). These proceedings were
continued in light of pending actions in Tennessee state court for attempted murder and in the U.S.
District Court for the Western District of Virginia. In October 1999, the Tennessee state trial court
ruled that Vanderbilt police lacked probable cause to arrest Mettetal and suppressed all evidence
seized during the search incident to his arrest and all evidence seized pursuant to the search warrants
issued in Virginia. Also in 1999, the U.S. District Court for the Middle District of Tennessee
dismissed Mettetal’s indictment for mail fraud without prejudice in light of Mettetal’s conviction
6
conviction, concluding that there had been no probable cause to arrest Mettetal for criminal trespass
and that the ricin jar and the false identification documents used to convict Mettetal should have
been suppressed as the fruit of Mettetal’s unlawful arrest. See Mettetal I, 2000 WL 530330, at **6.
On remand, District Judge James Michael, Jr. denied Mettetal’s motion to dismiss the indictment,
concluding that the evidence could be admitted pursuant to the good faith exception. See United
States v. Mettetal, No. CRIM. A. 3:96CR50034, 2000 WL 33232324, at *10 (W.D. Va. June 16,
2000) (“Mettetal II”). Mettetal was retried and again convicted. On appeal, the Fourth Circuit once
again vacated Mettetal’s conviction, concluding that the district court exceeded the scope of the
Fourth Circuit’s mandate in Mettetal I by reconsidering the admissibility of evidence that the Fourth
Circuit had previously excluded. See United States v. Mettetal, No. 02-4120, 2002 WL 31375600,
at **2 (4th Cir. Oct. 23, 2002) (“Mettetal V”). On December 10, 2002, the U.S. District Court for
the Western District of Virginia granted the government’s motion to dismiss the indictment against
Mettetal.
2. Civil Proceedings
On October 2, 2000, Mettetal filed a complaint in the U.S. District Court for the Middle
District of Tennessee against: (1) Vanderbilt University and Officer Edna Sue Pully, Officer
Jennifer D.K. West, Officer Donnie Young, Lieutenant Jackson, Sergeant James Campbell, and
Director Allan R. Guyet of the Vanderbilt University Department of Security, in their individual and
official capacities; (2) the Metropolitan Government of Nashville and Davidson County
(“Metropolitan Nashville”); (3) several officers of the Metropolitan Nashville Police Department
in their individual and official capacities (i.e., Sergeant Thomas Burke, Officer Gray, Officer
on more serious charges in the U.S. District Court for the Western District of Virginia.
7
Bradley Putnam, Detective David Miller, Captain L.M. Miller, Lieutenant Tommy Jacobs, and five
unknown Metropolitan Nashville Police Department detectives); (3) Federal Bureau of Investigation
(“FBI”) Special Agent J. Stephen Dickey, in his individual and official capacities; (4) David Dixon,
U.S. Marshal for the Middle District of Tennessee, in his individual and official capacities; (5)
Sheriff Gayle Ray, supervisor of the Metropolitan Nashville jail, in her individual and official
capacities; (6) unknown employees of the Metropolitan Nashville jail; (7) attorney Patrick T.
McNally, who represented Mettetal during his criminal proceedings in the Middle District of
Tennessee; (8) the Harrisonburg, Virginia Police Department and several of its officers (i.e.,
Investigator D.W. Cox, Investigator Tom D. Hoover, Officer W.H. Frank, Officer S. Antoine, and
Lieutenant W.H. Holloway), in their individual and official capacities; (9) Sergeant Ken Hutton of
the MWAA Police Department, in his individual and official capacities; (10) Hilliard Hester,
Assistant United States Attorney (“AUSA”) for the Middle District of Tennessee, in his individual
and official capacities; (11) Davidson County Deputy District Attorney Thomas Thurman and
Assistant District Attorney General Lisa Naylor, in their individual and official capacities; and (12)
Metropolitan Nashville Police Department Public Information Manager Don Aaron, in his individual
and official capacities. On January 8, 2001, Mettetal filed an amended complaint adding the
MWAA Police Department as a party, and on March 2, 2001, Mettetal again amended his complaint,
this time adding as parties: (1) AUSA Ray B. Fitzgerald of the Western District of Virginia, in his
individual and official capacities; (2) the Director of the Bureau of Prisons, Federal Correctional
Institution-Petersburg (“FCI-Petersburg”) Wardens Stephen J. DeWalt and Joseph M. Brooks and
employees Janet Clark and Ricardo Bradford, in their individual and official capacities; (3) District
Judge James H. Michael, Jr. of the Western District of Virginia in his individual and official
8
capacities; and (4) John Burns Earle III and Marsha Garst (Mettetal’s court-appointed attorneys in
Virginia) in their individual capacities. On December 17, 2002, Mettetal filed his final amended
complaint, which added as defendants: (1) U.S. Navy Captain James P. Buran of Bethesda,
Maryland; (2) Dr. Ann Kelleher and Dr. Drew Richardson of the FBI laboratory in Quantico,
Virginia; and (3) John F. Hewetson and Jennifer Hager of Fort Detrick, Frederick, Maryland.
Mettetal’s final amended complaint describes Mettetal’s suit as “a civil action for money
damages brought pursuant to 42 USC sections 1983 and 1986, 18 USC sections 1983 and 1986, 18
USC section 1964(c) [the Racketeer Influenced and Corrupt Organizations Act (“RICO”)], 28 USC
1346(b), and the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments of the U.S.
Constitution, and under the common laws of the states of Tennessee and Virginia” and enumerates
fourteen causes of action. On appeal, Mettetal challenges three district court orders that resulted in
the dismissal of all defendants and all claims in Mettetal’s suit. The first order, entered on July 22,
2003, was issued by the district court sua sponte pursuant to 28 U.S.C. § 1915(e)(2).2 See 28 U.S.C.
§ 1915(e)(2) (providing that when a party proceeds in forma pauperis, “[n]otwithstanding any filing
fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if
the court determines that — (A) the allegation of poverty is untrue; or (B) the action or appeal —
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”). The district court ordered
all claims against District Judge James Michael, Jr., Gayle Ray, Don Aaron, the Director of the
2
When Mettetal filed his first complaint on October 2, 2000, Mettetal had not been granted
in forma pauperis status, and accordingly paid a filing fee of $150 to institute this action. Mettetal
filed a motion to proceed in forma pauperis on November 7, 2000, and his motion was initially
denied by the magistrate judge on November 9, 2000. Mettetal refiled his in forma pauperis motion
on November 29, 2000, and the motion was granted by the magistrate judge on December 1, 2000.
9
Bureau of Prisons, Stephen DeWalt, Joseph Brooks, Janet Clark, and Ricardo Bradford to be
dismissed with prejudice and all claims against Officer Gray and the MWAA Police Department
dismissed without prejudice.
The second order, entered on March 8, 2004, adopted over Mettetal’s objection the
magistrate judge’s February 13, 2004 Report and Recommendation (“R&R”) with respect to various
motions to dismiss. As a result, the claims against Vanderbilt University, Edna Sue Pully, Jennifer
D.K. West, Donnie Young, James Campbell, Allen R. Guyet, John Jackson, Tom Thurman, Lisa
Naylor, Thomas Burke, Brad Putnam, Thomas Jacobs, L.M. Miller, David Miller, the Metropolitan
Nashville Government, Hilliard Hester, David Dixon, and Stephen Dickey were dismissed with
prejudice, and the claims against the Harrisonburg Police Department, Tom D. Hoover, D.W. Cox,
W.H. Frank, W.H. Holloway, Kenneth Hutton, Ray B. Fitzgerald, and S. Antoine were dismissed
without prejudice. In its March 8, 2004 order, the district court also denied Mettetal’s motion to
amend his complaint; quashed the summonses issued for the MWAA and S. Antoine; denied as moot
several motions for stays of discovery; denied as moot MWAA’s motion to dismiss; and denied
Mettetal’s motion for review and affirmed the magistrate judge’s order denying Mettetal’s motion
for issuance of a subpoena duces tecum.
The third order from which Mettetal appeals was issued by the district court on March 19,
2004. In that order, the district court adopted the magistrate judge’s March 8, 2004 R&R; granted
Earle and Garst’s motion to dismiss; granted McNally’s motion for summary judgment; dismissed
all claims against Earle, Garst, and McNally; dismissed all claims against Kelleher, Burans,
Hewetson, and Hager; dismissed all claims against Richardson; denied Mettetal’s motion for change
of venue; and directed that the case be closed.
10
II. ANALYSIS
After reviewing the district court record and the parties’ briefing, we conclude that the
district court’s judgment should be affirmed, with the following exceptions:
A. Dismissal of Claims Against Vanderbilt and Metropolitan Nashville Police Department
Defendants
The district court below dismissed with prejudice all claims against the “Vanderbilt
Defendants” (i.e., Vanderbilt University, Edna Sue Pully, Jennifer D.K. West, Donnie Young, James
Campbell, Allen R. Guyet, and John Jackson) and the “Metropolitan Nashville Police Department
Defendants” (i.e., Thomas Burke, Brad Putnam, Thomas Jacobs, L.M. Miller, David Miller, and the
Metropolitan Nashville Government) on the grounds that: (1) Mettetal’s § 1983 claims were barred
by the statute of limitations, (2) Mettetal failed to state a claim under § 1986, and any such claims
would be barred by the statute of limitations, and (3) Mettetal failed to state a claim for a violation
of RICO, and any RICO claims would be barred by the statute of limitations. We conclude that
although the district court did not err in dismissing Mettetal’s § 1986 and RICO claims for failure
to state a claim, the district court did err in dismissing Mettetal’s § 1983 claims on statute-of-
limitations grounds. We also believe that Mettetal has sufficiently alleged the existence of a § 1983
civil conspiracy between the Vanderbilt Defendants and the Metropolitan Nashville Police
Department Defendants to overcome a motion to dismiss.
1. Statute of Limitations
The district court ruled that Mettetal’s § 1983 claims against the Vanderbilt Defendants and
the Metropolitan Nashville Police Department Defendants should be dismissed because Mettetal
filed these claims on October 2, 2000, more than five years after Mettetal’s August 22, 1995 arrest.
Although the district correctly determined that a one-year statute of limitations governs § 1983
11
claims filed in Tennessee, see Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir.), cert. denied, 540
U.S. 876 (2003); see also TENN. CODE ANN. § 28-3-104(a)(3), the district court erred in concluding
that Mettetal’s § 1983 claims against the Vanderbilt Defendants and the Metropolitan Nashville
Police Department Defendants accrued at the time of Mettetal’s arrest.
In Shamaeizadeh v. Cunigan, 182 F.3d 391, 399 (6th Cir.), cert. denied, 528 U.S. 1021
(1999), we ruled that, in light of the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477
(1994), the statute of limitations does not begin to run on a criminal defendant’s § 1983 claim until
the criminal charges have been dismissed if the § 1983 claim could bring the claimant’s criminal
conviction into question. As we explained in Shamaeizadeh:
To require a defendant in a criminal proceeding to file a civil action raising any
potential § 1983 claims within one year of any alleged illegal searches or other
alleged violations of constitutional rights, claims which the federal court must then
abstain from resolving until the disposition of the criminal proceedings, would
misdirect the criminal defendant. Surely, just as a convicted prisoner must first seek
relief through habeas corpus before his § 1983 action can accrue, so too should the
defendant in a criminal proceeding focus on his primary mode of relief — mounting
a viable defense to the charges against him — before turning to a civil claim under
§ 1983.
Id. Mettetal’s § 1983 claims against the Vanderbilt Defendants and Metropolitan Nashville
Defendants would have called into question the validity of a potential conviction because the
evidence obtained as the fruit of Mettetal’s alleged false arrest and illegal search (such as the false
identification documents and the ricin jar) were at the core of the criminal proceedings against
Mettetal. See id. at 398; see also Wolfe v. Perry, 412 F.3d 707, 714-15 (6th Cir. 2005). Thus, we
conclude that the statute of limitations did not begin to run on these § 1983 claims until the criminal
12
charges against Mettetal were dismissed in December 2002, and thus the dismissal of these claims
by the district court was in error.3
2. Section 1983 Civil Conspiracy
We also believe that Mettetal’s complaint sufficiently alleges a claim for civil conspiracy
under § 1983 against the Vanderbilt Defendants and the Metropolitan Nashville Police Department
Defendants to withstand a motion to dismiss. As we explained in Hooks v. Hooks, 771 F.2d 935,
943-44 (6th Cir. 1985):
A civil conspiracy is an agreement between two or more persons to injure
another by unlawful action. Express agreement among all the conspirators is not
necessary to find the existence of a civil conspiracy. Each conspirator need not have
known all of the details of the illegal plan or all of the participants involved. All that
must be shown is that there was a single plan, that the alleged coconspirator shared
in the general conspiratorial objective, and that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.
Although the district court ruled that Mettetal’s allegation of conspiracy were too vague to
state a claim, see Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004) (“Claims of [civil] conspiracy
must be pled with some specificity: vague and conclusory allegations that are unsupported by
material facts are not sufficient to state a § 1983 claim.”), Mettetal’s allegations that the Vanderbilt
Defendants and the Metropolitan Nashville Police Department Defendants conspired to falsely arrest
Mettetal are sufficiently specific to survive a motion to dismiss. R. 19 (Final Am. Compl. at 10-11)
3
Mettetal filed his complaint against the Vanderbilt Defendants and the Metropolitan
Nashville Police Department Defendants in October 2000, i.e., before his indictment was dismissed
in December 2002. However, we conclude that it would be improper for us to affirm the dismissal
of Mettetal’s § 1983 claims on the basis that they were filed prematurely because the criminal
charges against Mettetal had been dismissed well before the district court ruled on the motion to
dismiss Mettetal’s § 1983 claims. Cf. Heck v. Humphrey, 512 U.S. 477, 487 n.8 (1994) (explaining
that “if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his
criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the
parallel state-court proceedings”).
13
(“Campbell conferred with the Metro Nashville police. Campbell was encouraged to proceed with
the false arrest and illegal searches of the PLAINTIFF’s person and briefcase by Metro PD Officers
Bradley Putnam and Tommy Berk. The VUSD officers function with the same full force and
authority of the Metro Nashville police because they are sworn, trained, and bonded in the same or
similar manner as the Metro Nashville police. Campbell ‘worked in concert’/conspired with the
Metro Nashville police in the false arrest. . . . Campbell’s testimony documents the established
policy and custom of these two police forces to corroborate [collaborate?] in the execution and
commission of false arrests.”); see Memphis, Tennessee Area Local, Am. Postal Workers Union,
AFL-CIO v. City of Memphis, 361 F.3d 898, 905-06 (6th Cir. 2004) (describing allegations of civil
conspiracy that were sufficient to overcome a motion to dismiss). However, to the extent that
Mettetal alleges that these defendants engaged in a conspiracy illegally to interrogate Mettetal or
that they conspired with the Harrisonburg Police Department and the MWAA illegally to search
Mettetal’s home, car, and storage unit, the district court was correct in dismissing such claims for
failure to allege that the parties entered into any kind of agreement or formed a single plan. See
Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003).
B. Dismissal of Count Two Against U.S. Marshal David Dixon and FBI Special Agent
Stephen Dickey4
In Count Two of his final amended complaint, Mettetal alleges that Defendants David Dixon
and Stephen Dickey were present during his supposed illegal interrogation by Metropolitan
Nashville Detective David Miller and that Dixon and Dickey did nothing to stop the interrogation.
The district court below determined that this claim should be dismissed based on the statute of
4
We affirm the judgment of the district court dismissing the claims against Dixon and Dickey
based on Count Nine of Mettetal’s final amended complaint.
14
limitations because “all of the alleged actions taken by defendants Dixon and Dickey occurred in
1995. . . .” R. 211 (Feb. 13, 2004 Magistrate Judge R&R at 21). We, however, believe such a
determination to be in error. First, to the extent that Mettetal has alleged that Dixon and Dickey
violated his Fifth Amendment right against self-incrimination, we conclude that Mettetal’s claim
would not have accrued at the time of the allegedly illegal interrogation, but rather only after
Mettetal’s statements were introduced at trial. See McKinley v. City of Mansfield, 404 F.3d 418, 438
(6th Cir. 2005) (“We read the Fifth Amendment’s requirement that a plaintiff’s statements be used
in a criminal proceeding as essentially one of standing. Where such use of the statements has not
occurred, the plaintiff may not sue because he has not suffered the injury against which the Fifth
Amendment protects.”). Second, neither the magistrate judge nor the district judge considered
whether, under Shamaeizadeh, Mettetal’s self-incrimination and right-to-counsel claims against
Dixon and Dickey were filed in a timely fashion. Because we cannot definitively determine, based
on the record before us, that Mettetal’s claims against Dixon and Dickey would not have called into
question the validity of the criminal proceedings against Mettetal,5 we vacate the district court’s
order dismissing the claims against Dixon and Dickey in Count Two of Mettetal’s complaint and
remand for further consideration in light of this opinion.
C. Appointment of Counsel
Because Mettetal does not appear to have filed with the district court a motion for the
appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), and because this court reviews the denial
of such requests only for an abuse of discretion, we decline to grant Mettetal’s request for
appointment of counsel at this time and instead allow the district court to consider the request in the
5
For instance, the record before us does not indicate whether any statements made by
Mettetal during this allegedly illegal interrogation were introduced at trial.
15
first instance. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993); see also Lince v.
Youngert, No. 03-2193, 2005 WL 1385918, at *2-3 (6th Cir. June 3, 2005).6
III. CONCLUSION
For the reasons set forth above, we AFFIRM IN PART, REVERSE IN PART, and
VACATE IN PART the decisions of the district court, and we REMAND for further proceedings.
6
In his Supplemental Brief, Mettetal cites 42 U.S.C. § 1988 as the statutory basis for his
request for appointment of counsel. Pl.-Appellant’s Supplemental Br. at 22. Section 1988, however,
provides for the award of attorney fees, not the appointment of counsel. See 42 U.S.C. § 1988(b)
(“In any action or proceeding to enforce a provision of sections . . . 1983, 1985, and 1986 of this title
. . ., the court, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs . . . .”). Thus, Mettetal’s request for counsel has been
treated as being filed pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. See 28 U.S.C.
§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel.”).
16