Cameron Garner v. Jessica Harrod , 656 F. App'x 755 ( 2016 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0400n.06
No. 15-4201
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
CAMERON D. GARNER; CHRISTINA L. ) Jul 15, 2016
GARNER; AUDREY M. MORELAND; CHARLES ) DEBORAH S. HUNT, Clerk
D. MORELAND; J.D.G.; DREAMA K. BAKER, )
)
Plaintiffs-Appellants. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
JESSICA HARROD; LICKING COUNTY )
DEPARTMENT OF JOB & FAMILY SERVICES, )
Defendants-Appellants.
OPINION
BEFORE: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. This case arises out of the alleged abuse of
4-year-old A.M., who, through his mother Jessica Harrod, alleged that he was inappropriately
touched by his step-grandfather, Cameron Garner. Various charges stemmed from the
investigation of this allegation. A grand jury returned indictments against Cameron Garner for
gross sexual imposition and Christina Garner1 and Audrey Moreland for child endangering.
Prior to trial, the prosecutor voluntarily dismissed the charges against Christina Garner and
Audrey Moreland, and ultimately, the state court judge dismissed the charges against Cameron
Garner following a determination that A.M.’s prior statements were hearsay and inadmissible.
The Garners, Moreland, and several others brought suit under 42 U.S.C. § 1983 against various
1
Ms. Garner is sometimes referred to as “Christina” and sometimes “Christine.” We refer to her as
“Christina,” as her name appears on the case docket.
Garner v. Harrod
No. 15-4201
parties involved in the investigation and prosecution, alleging the violation of their constitutional
rights under the Fourth, Eighth, and Fourteenth Amendments, as well as claims for defamation,
malicious prosecution, false arrest, false imprisonment, gross negligence, negligent and
intentional infliction of emotional distress, and loss of consortium. The district court granted
summary judgment in favor of the defendants. We affirm.
I.
On February 25, 2012, Jessica Harrod reported allegations of sexual abuse on behalf of
her four-year-old son, A.M, to the Muskingum County Sheriff’s Office. According to Harrod,
A.M. told her that “Pop Pop”—believed to be A.M.’s step-grandfather Cameron Garner—had
touched him on the penis and that “Pop Pop” had also shown his penis to A.M. Harrod informed
Deputy Brad Shawger that she was not in contact with her mother, Christina Garner, or her step-
father, Cameron Garner,2 but that A.M. visited her grandmother, Audrey Moreland. Harrod
further reported that Audrey Moreland admitted that she had taken A.M. to visit the Garners
without Harrod’s permission.
After the meeting, Shawger contacted Muskingum County Detective Fred Curry and then
Muskingum County Children Services (“MCCS”). MCCS caseworker Mindy Darst advised
Shawger to refer the case to Licking County Children Services (“LCCS”) due to A.M.’s
residency. After Darst contacted LCCS to transfer the case, LCCS caseworker Amy Reedy took
over A.M.’s case. Within a few days, she interviewed A.M. concerning the sexual abuse
allegations.3 During the ten-to-fifteen-minute interview, A.M. told Reedy that “Pap”—or “Pap
Pap” or “Paw Paw”—had touched and tickled his penis and that he had tickled “Pap’s” penis.
2
In 2003, Cameron Garner pled guilty to Importuning for making sexual comments and engaging in
inappropriate sexual behavior in Harrod’s presence when she was a young girl. Harrod informed Shawger that
because her mother stayed with Cameron Garner afterwards, she has no contact with them.
3
Reedy never recorded her interviews, including with A.M.
2
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Based on questioning about who else lived with “Pap,” Reedy was able to confirm that A.M.
called Cameron Garner “Pap.”4 A.M. also accurately identified his age, colors, and body parts
on an anatomically correct drawing of a nude male preschool-aged child.
While Reedy was conducting her investigation on behalf of LCCS, Curry continued his
investigation on behalf of the Muskingum County Sheriff’s Office. Curry interviewed Audrey
Moreland on February 29, 2012. Moreland admitted that although Harrod told her that she did
not want Cameron Garner to spend any time with A.M., she brought A.M. to the Garners on
several occasions, including an overnight stay. During this interview, Moreland doubted the
truthfulness of the allegations against Cameron Garner and expressed concern about Harrod’s
boyfriend and Harrod. Moreland suspected Harrod’s boyfriend was the culprit. Curry next
contacted Cameron Garner, who initially agreed to an interview. Mr. Garner, however, failed to
appear for this interview, which, according to Christina Garner, was based on the advice of their
attorney.
In early March 2012, Curry met with Muskingum County Prosecutor D. Michael
Haddox, who, based on Curry’s findings and Reedy’s interview with A.M., decided to present
the case to a grand jury. The grand jury returned indictments against Cameron Garner for two
counts of gross sexual imposition and against Christina Garner and Audrey Moreland for child
endangering. Warrants were issued, and the three individuals were arrested. After this point,
prosecutor Ronald Welch handled the case. The child endangering charges against Christina
Garner and Audrey Moreland were dismissed shortly before trial. The charges against Cameron
Garner were likewise dismissed based on the trial court’s finding that A.M. was incompetent to
testify and that his statements to Harrod were not admissible.
4
Audrey Moreland also reported that A.M. used the nickname “Papp” for Cameron Garner.
3
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In July 2013, plaintiffs Christina Garner, Cameron Garner, J.D.G. (the Garners’ minor
son), Audrey Moreland, Charles Moreland (Audrey’s husband), and Dreama Baker (whose
guardian is Ms. Moreland) filed suit alleging claims against various parties involved in the
investigation and prosecution of A.M.’s sexual abuse allegations. The plaintiffs brought claims
under 42 U.S.C. § 1983 for violations of the Fourth, Eighth, and Fourteenth Amendments, as
well as claims for defamation, malicious prosecution, false arrest, false imprisonment, gross
negligence, negligent and intentional infliction of emotional distress, and loss of consortium.
The district court granted the defendants’ motion for summary judgment on all claims. Before
this court, the plaintiffs appeal only the district court’s dismissal of their claims for malicious
prosecution, false arrest, and false imprisonment, as well as their § 1983 claims that the
defendants’ policies and practices violated their procedural and substantive due process rights.
II.
A.
This court reviews a district court’s grant of summary judgment de novo. Troche v.
Crabtree, 814 F.3d 795, 798 (6th Cir. 2016) (citation omitted). Summary judgment is proper
where no genuine issue of material fact exists and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). All reasonable inferences must be construed in favor of the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). We ask “whether the evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). A mere scintilla of evidence is not enough
to create a genuine issue of material fact. Id. at 252.
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B.
The plaintiffs argue that the district court improperly granted summary judgment to the
defendants on their § 1983 malicious prosecution and false imprisonment and arrest claims.
To prove a § 1983 malicious prosecution claim, the plaintiffs must establish the
following: (1) a criminal prosecution was initiated against them and the defendants made,
influenced, or participated in the decision to prosecute; (2) there was no probable cause for the
criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiffs suffered a
deprivation of liberty under the Fourth Amendment, apart from the initial seizure; and (4) the
criminal proceeding was resolved in the plaintiffs’ favor. Sykes v. Anderson, 625 F.3d 294, 308–
09 (6th Cir. 2010). To prove a § 1983 claim of false imprisonment and arrest, the plaintiffs must
“prove that the [defendants] lacked probable cause to arrest [them].” Voyticky v. Vill. of
Timberlake, 412 F.3d 669, 677 (6th Cir. 2005) (citing Fridley v. Horrighs, 291 F.3d 867, 872
(6th Cir. 2002)). To prevail on either their malicious prosecution or false arrest and
imprisonment claims, plaintiffs must present sufficient evidence that probable cause did not
exist.
“An arrest pursuant to a facially valid warrant is normally a complete defense to a federal
constitutional claim for false arrest or false imprisonment made pursuant to § 1983,” id., unless
the law enforcement officer or officers “knowingly and deliberately, or with a reckless disregard
for the truth, made false statements or omissions that create[d] a falsehood and such statements
or omissions [we]re material, or necessary, to the finding of probable cause.” Sykes, 625 F.3d at
305 (quoting Wilson v. Russo, 212 F.3d 781, 786–87 (3d Cir. 2000)) (internal quotation marks
omitted). Further, it is well settled that “the finding of an indictment, fair upon its face, by a
properly constituted grand jury, conclusively determines the existence of probable cause.”
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Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014) (citations and internal quotation marks
omitted). This court applies an exception where the indictment was wrongfully obtained by
defendants who deliberately or recklessly presented false testimony to the grand jury. See Webb
v. United States, 789 F.3d 647, 660 (6th Cir. 2015); Robertson, 753 F.3d at 616.
In this case, a grand jury was convened, evidence was presented to it, and the grand jury
returned an indictment against the plaintiffs. The plaintiffs failed to present evidence that the
defendants deliberately or recklessly presented false testimony to the grand jury. They fail even
to produce a grand jury transcript5; because of this failure, neither the district court nor this court
was informed of precisely what was said to the grand jury or by whom. The mere allegation that
witnesses did not testify in good faith before a grand jury is insufficient to overcome the
presumption of probable cause obtained upon the return of a grand jury indictment. See Miller v.
Davis, No. 15-3923, 2016 WL 3472004, at *5 (6th Cir. June 24, 2016); Cook v. McPherson,
273 F. App’x 421, 424 (6th Cir. 2008). Nor do the plaintiffs present even a scintilla of evidence
from which we could infer that the defendants knowingly or recklessly presented false
information to the grand jury.
The plaintiffs instead argue that because, allegedly, the investigation was deficient and
because the evidence presented to the grand jury included A.M.’s statements to his mother and
Reedy that were later excluded by the state trial court, the grand jury’s finding of probable cause
should not stand. The plaintiffs cite no case law in support of this proposition.
We decline the invitation to create a new exception to the presumption of probable cause
based on a grand jury indictment. First, and most importantly, the standard required for probable
cause is lower than that required for conviction. See Newman v. Twp. of Hamburg, 773 F.3d
769, 773 (6th Cir. 2014) (comparing “the modest requirement that probable cause exist to
5
The plaintiffs do not argue that they tried but were unable to obtain a transcript.
6
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prosecute someone and the stringent requirement that proof beyond a reasonable doubt exist to
find him guilty”). “[N]ot every failed criminal prosecution will sustain a subsequent malicious-
prosecution suit.” Id. (quoting Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005)).
Second, although imperfect, the investigation was not as deficient as the plaintiffs suggest. For
example, although Reedy failed to record her interview with A.M., this was her usual course of
conduct, and A.M. reported to her almost the exact same allegations as Harrod initially reported
to the police. That Harrod reported that A.M. told her about “Pop Pop,” though A.M. spoke of
“Pap” or “Pap Pap” to Reedy, is not the smoking gun that the plaintiffs suggest—what child has
not called his mother alternately “Mama,” “Mommy,” or “Mom”? Third, because the defendants
had no reason to doubt the truth of A.M.’s statements—indeed, the nearly identical statements
reported by Harrod and those given to Reedy gave them reason to trust the truth of the
allegations all the more—a failure to present the evidence to the grand jury could have
potentially endangered the safety of a minor. That the trial court later found A.M.’s statements
to be inadmissible does not determine their actual truth or falsity, especially in a case such as this
where the plaintiffs have failed to attach the trial court’s rationale, i.e., whether the decision was
based on hearsay or incompetency or both.
In sum, the plaintiffs clearly failed to satisfy their burden to rebut the presumption of
probable cause created by the grand jury’s indictment.
C.
The plaintiffs next argue that the policies and practices of the defendants resulted in the
violation of their procedural and substantive due process rights. According to the plaintiffs, the
defendants violated the plaintiffs’ alleged “constitutionally protected right to have some minimal
level [of] competency be demonstrated by those who seek to investigate and subsequently
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prosecute them for crimes,” though the plaintiffs fail to cite a single case in support of this
proposition, nor do they reference the policies or practices of the entity defendants that allegedly
deprived them of this right. Appellant Br. at 12–16. Similarly, the plaintiffs do not clarify
whether they are asserting a procedural or a substantive due process violation.
In order to prevail on a § 1983 claim against the entity defendants under Monell v. New
York City Department of Social Services, 436 U.S. 658 (1978), the plaintiffs must establish that
(1) their constitutional rights were violated and (2) “the municipality’s policy or custom led to
the violation.” Robertson, 753 F.3d at 622. “[A] municipality can be found liable under § 1983
only where the municipality itself causes the constitutional violation at issue. Respondeat
superior or vicarious liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S.
378, 385 (1989). Because the plaintiffs cannot establish that their constitutional rights were
violated, their claim fails at step one.
To prove a § 1983 procedural due process claim, the plaintiffs must establish (1) that they
have a life, liberty, or property interest protected by the Due Process Clause, (2) that they were
deprived of this protected interest, and (3) that the state did not afford them adequate procedural
rights prior to depriving them of their protected interest. Hahn v. Star Bank, 190 F.3d 708, 716
(6th Cir. 1999). The district court construed the plaintiffs’ claims “to allege some type of liberty
or property right in the way in which Reedy and Detective Curry investigated A.M.’s sexual
abuse allegations.” DE 63, Op. & Order, Page ID 2103. We do the same.
Setting aside all the facts that demonstrate that the state actors involved in the
investigation of this case demonstrated far more than a “minimal level of competency,” there is
no constitutionally protected right to the manner in which a criminal investigation is conducted.
Though at least one other circuit has held that there is “a clearly established constitutional due
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process right not to be subjected to criminal charges on the basis of false evidence that was
deliberately fabricated by the government,” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th
Cir. 2001) (en banc), the plaintiffs have not pled any facts to prove the deprivation of such a
right. Moreover, assuming that the plaintiffs provided sufficient facts to establish that the
investigation was incompetent or negligent, an “incompetent or negligent investigation” is
insufficient to establish a constitutional violation. Seigel v. City of Germantown, 25 F. App’x
249, 250 (6th Cir. 2001). As stated by the district court, “there is no constitutional due process
right to have child witnesses in a child sexual abuse investigation interviewed in a particular
manner, or to have the investigation carried out in a particular way.” DE 63, Op. & Order, Page
ID 2104 (quoting Devereaux, 263 F.3d at 1075). Accordingly, even if the plaintiffs had
produced evidence to establish a negligent or deficient investigation, their procedural due
process claim would fail.
To prove a § 1983 substantive due process claim, the plaintiffs would need to establish
either (1) “deprivations of a particular constitutional guarantee,” or (2) government actions that
“shock the conscience.” Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d
716, 728 (6th Cir. 2011). “Where government action does not deprive a plaintiff of a particular
constitutional guarantee or shock the conscience, that action survives the scythe of substantive
due process so long as it is rationally related to a legitimate state interest.” Valot v. Se. Local
Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997) (citations omitted). Here, the
plaintiffs have not alleged any cognizable constitutional interest, nor have they produced any
evidence of “conscience shocking” behavior. See Range v. Douglas, 763 F.3d 573, 589 (6th Cir.
2014) (finding that the “‘shocks the conscience’ standard sets a high bar: ‘Substantive due
process affords only those protections so rooted in the traditions and conscience of our people as
9
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to be ranked as fundamental.’” (quoting EJS Props., LLC v. City of Toledo, 698 F.3d 845, 862
(6th Cir. 2012))). Not only did probable cause exist in this case, but the defendants had a duty to
protect four-year-old A.M. from potential child abuse, and their pursuit of A.M.’s allegations
against Cameron Garner does not shock the conscience; rather, the defendants acted in a rational
and reasonable manner based on the circumstances. Accordingly, the government actors in this
case violated no substantive due process right owed the plaintiffs by the Constitution.6
III.
For the reasons discussed above, we affirm the judgment of the district court.
6
Because the district court did not err in granting summary judgment to the defendants on all claims, it is
unnecessary to reach the issue of whether the defendants are immune from these claims.
10