Prose v. Wendover

96 F. App'x 358
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 27, 2004
DocketNo. 02-1950
StatusPublished
Cited by4 cases

This text of 96 F. App'x 358 (Prose v. Wendover) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prose v. Wendover, 96 F. App'x 358 (6th Cir. 2004).

Opinion

OPINION

ALAN E. NORRIS, Circuit Judge.

Plaintiff Thomas Mark Prose appeals from the district court’s grant of summary judgment in favor of all defendants and its denial of Prose’s motion for partial summary judgment. Prose brought suit under 42 U.S.C. § 1983 alleging that the defendants violated and conspired to violate his rights under the First. Fourth and Fourteenth Amendments of the United States Constitution.1 Because we conclude that Prose did not raise any genuine issues of material fact to support his allegations, we affirm the judgment of the district court.

I.

Prose’s allegations are premised upon the actions of the defendants in connection with three incidents.2 Viewing the evidence in the light most favorable to Prose, we recount the manner in which these incidents transpired.

1. The 1996 Incident

On September 16,1996, David Dameron, a painter hired by defendant Wendover, parked his “cherry-picker” truck on an easement owned by Wendover that was located on Prose’s property. Dameron got into the cherry-picker’s bucket, raised the bucket to the proper height and began painting the exterior of Wendover’s building. Prose demanded that Dameron move the cherry-picker. Prose then shut off the cherry-picker’s engine, causing Dameron to jump out of the bucket to safety.

The first police officer who arrived on the scene was Officer Curtis Hill. Defendant Lieutenant Edward Ochal, who arrived later to supervise, testified at deposition that Prose was not asked why he turned off the cherry-picker. Hill testified at deposition that he had witnessed a heated verbal disagreement between Prose and Dameron when he arrived on the scene, that Dameron did not complain of injury or demand that charges be brought against Prose, and that Prose was issued a ticket for disorderly conduct only when Ochal became upset at Prose when he asked to leave the scene to go to his office, where[361]*361upon Ochal detained Prose in the back of a police car. Plymouth City Attorney Donald Morgan declined to charged Prose with violating a city ordinance. On September 27, 1996, Ochal amended the charge against Prose to include “molesting and disturbing [a] person in pursuit of his occupation, vocation, or avocation,” for which Wayne County prosecutor Patrick Muscat declined to prosecute Prose, citing insufficient evidence.

2. The 1998 Incident

On November 3, 1998. Prose visited Wendover’s building after he had been awarded the right to inspect Wendover’s business records under a court order. Wendover was the owner of a local newspaper. Because the newspaper’s manager, defendant Mike A. Carne, had refused to speak with Prose earlier that morning over the telephone. Prose walked over to the lobby of the newspaper’s offices to hand out copies of the court order. When Prose arrived. Carne telephoned Wendover. Wendover told Carne to call the police. Carne testified at deposition that he did not hear Prose use profanity, and that Prose left the building when asked to do so.

Officers Richard Webster and Robert Kamisky arrived on the scene after Prose had left. According to their report, they stayed for six minutes and determined that “[n]o further action [was] necessary.” The report contains no reference to any criminal conduct by Prose. Defendant Ochal testified at deposition that he provided Wendover with a pile of blank witness statement forms to distribute to his employees.

On November 5, 1998, defendant Robert L. Scoggins, the Chief of Police, ordered Officer Webster to cite Prose with three violations: disorderly conduct involving telephone harassment, harassment, and the use of profanity in front of women and children, all arising from Prose’s actions on November 3. Webster refused to follow Scoggins’ order because he lacked personal knowledge to support the citation. Scoggins had Wendover sign the citation ticket although Wendover was not present in the newspaper’s lobby at the time of the incident.'

At some time after November 5, witness statements from newspaper employees were returned to the police. None of the statements backed by personal knowledge supported the charge that Prose used profanity in the lobby on November 3. Nor was there any evidence of telephone harassment on that date. On August 4, 1999, a court dismissed the charges against Prose for procedural insufficiency.

3. The 1999 Incident

Shortly after August 4, 1999, Prose met with city officials and told them that he contemplated bringing a civil action against the City. That same month, Scoggins and Ochal met with City Attorney John Martin about curing the legal defect in the newspaper lobby incident case. Martin testified at deposition that he told Scoggins and Ochal that the charges were weak, that the factual details upon which they were based were unsubstantiated, that the profanity charge may have been premised upon an unconstitutional ordinance, and that re-issuing charges at that time might be seen as retaliation for Prose’s threat to sue. Scoggins thereafter ordered Ochal to write a new report concerning the lobby incident and present it to Wayne County prosecutor Ray Walsh.

On September 16, 1999, the defendants were served with notice that Prose had filed the present action. Later that day. Ochal met with Walsh and provided him with the report he had written regarding the lobby incident. After the meeting. [362]*362Walsh authorized a stalking complaint and warrant against Prose for allegedly stalking defendants Wendover and Repeck between November 3, 1998, and September 16,1999.

The following day, Ochal, Wendover and Repeck appeared before Magistrate Theodore Johnson in Plymouth district court on the stalking charges. No record of that hearing can be located. However, Wend-over and Repeck testified at deposition that Prose had engaged in several acts against them after the lobby incident that could have been perceived as stalking. The Magistrate approved the charges. On July 25, 2000, the stalking charges against Prose were dismissed because the judge concluded that the stalking statute was unconstitutional as applied to Prose.

II.

Prose commenced this lawsuit in federal district court on September 16, 1999. The district court summarized the four-count allegation as follows:

In his Second Amended Complaint. Prose has alleged four causes of action. Count I. entitled “Conspiracy to Violate Federal Law Pursuant to 42 U.S.C. § 1983,” claims that the defendants “aided and abetted each other in fabricating the evidence against Dr. Prose,” ... conspired to violate his rights to be free from illegal searches and seizures and unlawful arrest and to be allowed due process and to engage in protected speech under the First Amendment.” Second Am. Comp. pp. 9-10.
Count II, entitled “Substantive Violation of 42 U.S.C. § 1983,” claims that defendants violated Prose’s constitutional rights to be free from illegal search and seizure and unlawful arrest and to be allowed due process and to engage in protected speech. Second Am. Comp, at pp. 11-12.

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Cite This Page — Counsel Stack

Bluebook (online)
96 F. App'x 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prose-v-wendover-ca6-2004.