Terry Bach v. Scott Drerup

545 F. App'x 474
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 13, 2013
Docket13-3173
StatusUnpublished
Cited by1 cases

This text of 545 F. App'x 474 (Terry Bach v. Scott Drerup) 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
Terry Bach v. Scott Drerup, 545 F. App'x 474 (6th Cir. 2013).

Opinion

HELENE N. WHITE, Circuit Judge.

Terry Bach appeals the district court’s grant of Defendants’ motion for summary judgment in this 42 U.S.C. § 1983 action alleging false arrest and malicious prosecution. We AFFIRM.

I.

Defendants Scott Drerup and Paul Mar-kowski are Kettering (Ohio) police officers *475 who arrested Bach, without a warrant, for the August 21, 2009, aggravated robbery of a Walgreens store in Kettering. According to the incident report and witness statements, the robber of the Walgreens store wore a green, hooded sweatshirt, displayed a knife to store employees, stated that he had a gun, and demanded Oxycontin. The pharmacist complied and placed the Oxycontin in a bag.

Bach’s arrest was based largely on an interview of Michelle Walls conducted by Detective Gary Schomburg and Officer Drerup on September 1, 2009. Walls was under investigation for unrelated charges. As the officers concluded the interview, Drerup asked Walls whether she had information that would help in other investigations. Walls responded that she got Xanax from a drug dealer who lived down the street, and went on to describe Terry Bach. Walls recounted being at Bach’s house one night and seeing him repeatedly put a green, hooded sweatshirt in the oven to cause it to catch on fire. Walls said that the plain sweatshirt was unusual for Bach because most of his tops had designs or logos, that Bach showed her a sock containing a large amount of Oxycontin, talked about burying a pair of shoes, told her he was going back to prison for committing a robbery, stated that he had robbed a Walgreens of Oxycontin and told the Walgreens clerk that he had a gun when he only had a knife, and that the Walgreens clerk put the Oxycontin in a bag. Walls also stated that Bach told her that since she would eventually be arrested, he did not want her telling police about the Walgreens robbery he had told her about.

Defendant Drerup was aware that Defendant Markowski was investigating the Walgreens robbery and pulled the case file to check whether Walls’s statement matched the details of the robbery. When Drerup showed Walls the video surveillance of the Walgreens robbery, Walls said ‘Wow, that’s definitely Terry.” Walls stated that the perpetrator stood like Bach, put his hands on his hips like Bach, and had “long fingers like Terry.”

Based on Walls’s statements, Drerup researched Bach’s criminal history and compared the physical description provided by a Walgreens employee to physical attributes listed in Bach’s criminal history. A Walgreens employee had described the perpetrator as a thin, white male with facial hair, approximately 20 to 25 years old, and 5'3" to 5'5" tall. Police records described Bach differently, as between 5'7" and 6'0" and between 120 and 180 pounds.

After reviewing Bach’s police file, Drer-up prepared a photographic lineup using a 2008 photograph of Bach. Two Walgreens pharmacy employees were unable to identify Bach and explained that they had been scared to look at the perpetrator’s face while being robbed at knife-point. A third Walgreens employee who had been present at the robbery was not shown the photo lineup at that time.

On September 3, 2009, two days after the initial interview, Defendants interviewed Walls a second time to gauge whether her story remained consistent and for Markowski to assess her credibility. Based on Walls’s statements, Defendants arrested Bach for the Walgreens robbery later that day. Bach agreed to speak with Defendants, denied involvement in the Walgreens robbery, and consented to a search of his home and to a polygraph test. The search yielded no evidence related to the robbery and Bach continued to deny his involvement. Drerup then prepared a second photographic lineup using Bach’s recent arrest photo. The third Walgreens employee positively identified Bach.

The third Walgreens employee was the sole witness at Bach’s preliminary hearing. *476 The state court found probable cause to bind the matter over to the Montgomery County grand jury. Walls testified before the grand jury, which returned an indictment against Bach on September 29, 2009.

About six weeks later, Walls stated in a November 13 sworn affidavit:

I made up the entire statement I wrote about Terry Bach on September 1, 2009 so that Police would not pursue charges against me;.... No one has forced, threatened, or coerced me into making this statement. No promises have been made to get me to make this statement.

On December 19, Walls allegedly told Kettering Police that she lied in her November 13 affidavit because she did not want to testify at Bach’s trial and was afraid of Bach and his father. Walls allegedly stated that Bach’s father offered to pay her legal fees, bought her a bus ticket, and told her he wanted her out of town before Bach’s second trial. The district court struck Walls’s statement on Bach’s motion, stating that it had “no basis to conclude the evidence is, or even could be, what it purports to be.” When Bach’s trial ended in a hung jury, the prosecutor dismissed the case. Bach later filed the instant § 1983 action alleging false arrest and malicious prosecution. The district court granted Defendants’ motion for summary judgment, and this appeal ensued.

II.

We review a grant of summary judgment de novo. Sullivan v. Oregon Ford, Inc., 559 F.3d 594, 594 (6th Cir.2009). Under Rule 56(a), summary judgment is proper if “the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir.2010).

A.

To recover against an individual actor for constitutional violations under § 1983, a plaintiff must demonstrate that the actor directly participated in the alleged misconduct, at least by encouraging, implicitly authorizing, approving or knowingly acquiescing in the misconduct, if not carrying it out himself. Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir.2013) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999)). A false arrest claim under federal law requires a plaintiff to establish that the arresting officer lacked probable cause to arrest the plaintiff. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010). To succeed on a malicious prosecution claim, the plaintiff must show that: (1) a prosecution was initiated against the plaintiff and that the defendant participated in the decision; (2) there was a lack of probable cause for the criminal prosecution; (3) the plaintiff suffered a deprivation of liberty as a consequence of the legal proceedings; and (4) the criminal proceeding was resolved in the plaintiffs favor. Id. at 308-09.

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545 F. App'x 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-bach-v-scott-drerup-ca6-2013.