Buchanan v. Metz

Full title: John C. BUCHANAN, Jr., Plaintiff, v. James W. METZ II and Donovan Motley…

Court: United States District Court, E.D. Michigan, Southern Division.

Date published: Mar 3, 2014

6 F. Supp. 3d 730 (E.D. Mich. 2014)

Opinion

No. 2:12–cv–15511.

2014-03-03

John C. BUCHANAN, Jr., Plaintiff, v. James W. METZ II and Donovan Motley, Defendants.

Elizabeth A. Downey, Elizabeth A. Downey, P.C., Jeffrey T. Stewart, Seikaly & Stewart, Farmington Hills, MI, for Plaintiff. Joseph T. Froehlich, Mark E. Donnelly, Michigan Attorney General, Lansing, MI, for Defendants.

GERALD E. ROSEN

Elizabeth A. Downey, Elizabeth A. Downey, P.C., Jeffrey T. Stewart, Seikaly & Stewart, Farmington Hills, MI, for Plaintiff. Joseph T. Froehlich, Mark E. Donnelly, Michigan Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANT METZ'S MOTION TO DISMISS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

This civil rights litigation arises out of Plaintiff John C. Buchanan, Jr.'s involvement in attempting to redevelop a manufacturing plant into a film studio as part of Michigan's Film and Digital Media Tax Credit program. According to Plaintiff, the project ultimately fell through due to a politically-motivated criminal investigation by the Michigan Attorney General. Defendants James W. Metz II and Donovan Motley handled the investigation. Their investigation ultimately resulted in criminal charges against Plaintiff and another individual, which a Michigan state court subsequently dismissed for want of probable cause. Plaintiff now seeks relief in this Court, asserting causes of action under the Fourth Amendment and Michigan common law for malicious prosecution and false arrest. In short, Plaintiff complains that Metz and Motley decided to pursue charges against Plaintiff without probable cause and effectuated this by having Motley make false statements to a magistrate.

Metz has now moved to dismiss Plaintiff's Amended Complaint on the grounds that it fails to state a claim under Rule 12(b)(6), or, in the alternative, that he enjoys absolute or qualified immunity. Having reviewed and considered Metz's Motion and supporting brief, Plaintiff's response thereto, supplemental briefing, and the entire record of this matter, the Court has determined that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Therefore, the Court will decide this matter “on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). The Court's Opinion and Order is set forth below.

II. PERTINENT FACTS

A. Michigan's Film and Digital Media Tax Credit

The origins of this matter arise out of the State of Michigan's tax incentives for the film industry. As pertinent here, the “Film and Digital Media Tax Credit” permits investors to claim a tax credit “for an investment in a qualified film and digital media infrastructure project ... equal to 25% of the taxpayer's base investment.” M.C.L. § 208.1457(1–2) (effective April 8, 2008).¹ The Michigan Film Office oversees the issuance of these credits, with the concurrence of Michigan's Treasurer. § 208.1457(1). A “qualified film and digital media infrastructure project” includes production and postproduction facilities, property and equipment related to the facility, and “any other facility that is a necessary component of the primary facility.” § 208.1457(11)(d). Finally, the tax credit defines a “base investment” as:

1 After the events at issue in this lawsuit, Michigan significantly changed its film industry tax credit program.

[T]he cost, including fabrication and installation, paid or accrued in the taxable year of tangible assets of a type that are, or under the internal revenue code will become, eligible for depreciation, amortization, or accelerated capital cost recovery for federal income tax purposes, provided that the assets are physically located in this state for use in a business activity in this state and are not mobile tangible assets expended by a person in the development of a qualified film and digital media infrastructure project. Base investment does not include a direct production expenditure or qualified personnel expenditure eligible for a credit under [a different provision of Michigan's film incentive, § 208.1455].
§ 208.1457(11)(a).

B. The Development of the Lear Plant into a Film Production Facility

1. Alpinist and West Michigan Films Agree To Redevelop the Lear Plant

Alpinist Endeavors, LLC was a limited liability company co-owned by Plaintiff and his father. (Plf's Am. Compl., Dkt. # 18, at ¶ 9). It owned a former manufacturing plant just outside of Grand Rapids commonly known as the “Lear Plant” or “Hangar 42.” ( Id. at ¶¶ 10, 46). Recognizing that the large Lear Plant might have potential as a film production facility, Plaintiff began working with an investor, West Michigan Films, to redevelop the Lear Plant into a permanent film studio. ( Id. at ¶¶ 15–21). West Michigan Films, Alpinist, Plaintiff, and Plaintiff's father eventually reached two agreements to effectuate this redevelopment.

First, West Michigan Films agreed to purchase portions of the Lear Plant from Alpinist for $40 million on a land contract. ( Id. at ¶ 21(a)). West Michigan Films' purchase was contingent upon two things: (1) Alpinist making certain improvements to allow the facility to be used as a film studio; and (2) West Michigan Films qualifying for a $10 million infrastructure tax credit. ( Id.). Indeed, the infrastructure tax credit was the linchpin to the purchase agreement; it provided West Michigan Films with the necessary capital to be used for its down payment to Alpinist:

West Michigan Films intended to sell the infrastructure tax credit to an assignee, and use part of the proceeds to make a down payment to Alpinist. The land contract would require no payments for the first year; but would require West Michigan Films to pay a percentage of revenue each year until fully paid. Thus, without the infrastructure tax credit, the deal would not be done.
( Id.). Alpinist made the improvements and the parties eventually closed on this land contract on April 5, 2010, in escrow, pending the issuance of the infrastructure tax credit. ( Id. at ¶¶ 21(a), 71).

Second, Plaintiff entered into a separate agreement with his father concerning his father's stake in Alpinist. Specifically, Plaintiff's father agreed to transfer his interest in Alpinist to Plaintiff “for over $800,000 and other consideration (amounting to over $3 million). This agreement, which specifically referenced the anticipated sale of [the portions of the Lear Plant] to West Michigan Film[s] and gave Plaintiff clear title to the entire assets of Alpinist, was signed and put into escrow to be closed no later than February 15, 2010.” ( Id. at ¶ 21(b)).

2. The Redevelopment Plan Falls Apart

Pursuant to its agreement with Alpinist, West Michigan Films began working with the Michigan Economic Development Corporation (MEDC) and the Michigan Film Office to put together a business plan that would meet state approval for the infrastructure tax credit. ( Id. at ¶ 27). Ultimately, in November 2009, the MEDC, the Michigan Film Office, and the Treasurer approved West Michigan Films' application for the tax credit. ( Id. at ¶¶ 30, 34). In so approving, the MEDC and the Michigan Film Office knew that the base investment claimed on the Lear Plant was $40 million. ( Id. at ¶¶ 29, 31).

The redevelopment plan, however, fell apart, culminating with the Film Office's decision to not finalize the tax credit—declining to issue the “Infrastructure Expenditure Credit certificate”—on May 23, 2010. ( Id. at ¶ 79). Plaintiff asserts that the project's downfall began when “politics intervened.” ( Id. at ¶ 37). Specifically, various individuals and organizations began questioning the veracity of the project's $40 million base investment price, when it had previously been listed for sale a few months before for less than $10 million and had not undergone $30 million in improvements. ( Id. at ¶¶ 52, 77, 94). The claimed base investment price, according to these individuals and organizations, “was inflated purely to get the tax credit.” ( Id. at ¶ 52).

C. Plaintiff's Arrest and Prosecution

Needless to say, this situation received significant media and public attention. ( Id. at ¶¶ 46, 47, 50, 61, 81–83). For example, one individual with close ties to media in Grand Rapids sent at least one “whistleblower email” asserting that the project was a fraud to state legislators and various advocacy groups opposing tax credits. ( Id. at ¶ 45). The election-cycle, and more specifically, the Republican primary for governor in the summer of 2010, magnified this attention. Then-gubernatorial candidate Representative Pete Hoekstra called for a criminal investigation into the matter. ( Id. at ¶ 85). One of Representative Hoekstra's opponents in the upcoming Republican gubernatorial primary was then-Attorney General Mike Cox. Individuals in the Michigan Film Office characterized Representative Hoekstra's call for an investigation as “a political ploy ... to make ... Attorney General Cox ... either investigate or seem soft on fraud.” ( Id. at ¶ 87). By June 16, 2010, the Attorney General had launched such an investigation. ( Id. at ¶ 84). Metz was the Assistant Attorney General assigned to the investigation and Motley was the investigator. ( Id. at ¶¶ 88–89).

On August 2, 2010, the day before the Republican gubernatorial primary, the Attorney General's Office announced that it was filing criminal charges against Joe Peters, West Michigan Films' principal, for attempted fraud on the state. ( Id. at ¶ 91). Five months later, on January 25, 2011, Motley appeared before a magistrate, presented a sworn affidavit with facts uncovered during the investigation, and requested a warrant for Plaintiff's arrest on similar charges. ( Id. at ¶¶ 92, 102). The magistrate granted this request. ( Id. at ¶ 92). After Plaintiff's booking and subsequent release on bond, the state district court held preliminary examinations in May, July, and September 2011, and eventually dismissed the charges against Plaintiff and Peters for lack of probable cause. ( Id. at ¶¶ 103–05).

D. Plaintiff's Claims

The crux of this case deals not with the reason for and propriety of the state's ultimate denial of the tax credit. Nor does it deal with Plaintiff's failure to ultimately convert the Lear Plant into a functioning film studio. Rather, Plaintiff alleges misconduct arising out of the politically-motivated prosecution that Defendants spearheaded.

1. The Problems with Motley's Affidavit

Plaintiff claims that Motley presented untrue statements to the magistrate, which were “material to the issuance of the arrest warrant.” ( Id. at ¶ 101). First, the affidavit provided that “Plaintiff arranged for an appraisal in which he suggested and insisted that the appraiser value the facility in excess of $40 million[ ] and that the appraisal relied in part upon the $40 million sales price as part of the rationale for the final opinion of value.” ( Id. at ¶ 94). Such statements were false because “the appraiser had given a sworn, stenographically-recorded statement before Defendant Metz ... and Defendant Motley .... stat[ing] that he did not rely on the sales price, but rather on the cost to replace the facility as a film studio.” ( Id. at ¶ 95). In short, “he stated that the value of the building for [use as a film studio] was higher than its value for general industrial use.” ( Id.). The appraiser also “specially denied that his number was the result of any influence by plaintiff.” ( Id.).

Second, it “falsely suggested that Mr. Buchanan had a CPA falsify the transaction by stating that the property had been sold.” ( Id. at ¶ 96). This was false because the CPA had also given a sworn and recorded statement to Metz and Motley that Joe Peters had “asked him to send the Film Office [a] letter regarding the sale of the facility to West Michigan Films” and that he “had reviewed the closing papers and considered the property sold, but in escrow pending the [issuance of the infrastructure tax credit].” ( Id. at ¶ 97).

Third, the affidavit claimed “that there was no intent to sell because Mr. Buchanan did not have the ability to transfer title.” ( Id. at ¶ 98). Metz and Motley “knew that this statement was false and misleading because they had in their possession at the time the agreements and e-mails among Mr. Buchanan, his father, and Alpinist's attorney.” ( Id. at ¶ 99). Those documents showed “that while Mr. Buchanan's father was Alpinist's Manager with sole authority to sell the property, he had agreed to the deal if it could be closed, had agreed to sell his entire interest to Mr. Buchanan, and had had Alpinist's attorney work diligently to get the sale to West Michigan Films to closure.” ( Id.)

Fourth, the “totality of the affidavit suggested a scheme in which the property would never change hands, but the tax credit would be pocketed.” ( Id. at ¶ 100). “Evidence in [Metz and Motley's] possession at the time of the affidavit, however, demonstrated that Alpinist, Mr. Buchanan, and West Michigan Films intended that the property would change hands once the certificate of the infrastructure tax credit was received.” ( Id.).

2. Metz's Involvement

As pertinent to Metz's instant Motion, Plaintiff sets forth the following facts concerning Metz's actions:

90. [Metz (along with Motley) ] gathered documents from various persons, and conducted both unrecorded and stenographically recorded statements from various people.

* * *

111. The defendant James Metz was actively involved in the investigatory phase of the proceedings ultimately leading to the prosecution of the plaintiff[.]

112. Upon information and belief, based in part on documents already in the plaintiff's possession, Mr. Metz's functions in the course of that process included or may have included:

a. Determining, independently and in conjunction with the defendant Motley, the witnesses and potential witnesses who would be contacted and interviewed;

b. planning the questioning for persons interviewed in the course of the investigation;

c. conducting critical interviews of the key witnesses who provided testimony directly contrary to that which was offered to the District Court judge at the time the warrant was issued;

d. observing interviews of other witnesses;

e. examining documents obtained;

113. In addition to his role in the foregoing investigatory functions, upon information and belief, the defendant Metz also may have given advice to the defendant Motley concerning how the investigation that (sic) was to be pursued and further gave advice to Motley and others as to the propriety of the arrest of plaintiff.

114. These functions were separate and distinct from his prosecutorial functions which may have included making determinations as to the appropriateness of charging plaintiff and preparing paperwork for submission to the Court.

115. It is believed that both defendants Motley and Metz were fully aware that the investigation was incomplete, that important exculpatory evidence was being consciously ignored, such as the existence of the land contract between Alpinist, LLC and West Michigan Film, LLC, as well as escrow agreements incident thereto.

116. Upon information and belief, defendant Metz was also:

a. aware of the plaintiffs desire to disclose the true facts of the transactions involved with Hangar 42 and the application for tax credits so as to avoid an unwarranted and unfounded prosecution;

b. made or participated in the decision to avoid speaking with plaintiff to obtain additional facts necessary to [make] an informed decision to prosecute.

117. Had the investigation been performed in good faith and in a legitimate attempt to uncover the truth, the prosecution never would have been initiated.

118. Defendant Metz may also have conspired with Defendant Motley to provide false information to the Court at that (sic) time of the issuance of the warrant for plaintiff's arrest.
( Id. at ¶¶ 90, 111–18).

Accordingly, Plaintiff asserts that Metz is liable for malicious prosecution under the Fourth Amendment and Michigan common law.² Metz has now moved to dismiss Plaintiff's Complaint on the grounds that it fails to state a claim under Rule 12(b)(6), or, in the alternative, that he enjoys absolute or qualified immunity. As set forth below, the Court GRANTS Metz's Motion.

2 Plaintiff's Amended Complaint also asserts false arrest in violation of the Fourth Amendment and Michigan common law. Though somewhat inconsistent, Plaintiff's Response makes clear that he is not seeking to hold Metz liable for false arrest. (Plf's Resp., Dkt. # 26, at 2) (“den [ying] that Plaintiff claim[s] false arrest against Mr. Metz”); ( but see id. at 4, 8, 14). Even if this were not the case, the Court's conclusion below concerning absolute immunity would apply equally to a false arrest claim.

III. DISCUSSION

A. Standard of Review

In deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007). To withstand a motion to dismiss, however, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Contrary to Plaintiff's assertion that the old “no set of facts” standard applies to Rule 12(b)(6) motions (Plf's Resp., Dkt. # 26, at 9), the Supreme Court made clear in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), that it “retired” that standard. Id. at 670, 129 S.Ct. 1937. Rather, the factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “The plausibility of an inference depends on a host of considerations, includingcommon sense and the strength of competing explanations for defendant's conduct.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir.2013).

The Sixth Circuit has emphasized that the “combined effect of Twombly and Iqbal [is to] require [a] plaintiff to have a greater knowledge ... of factual details in order to draft a ‘plausible complaint.’ ” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.2011) (citation omitted). Put another way, complaints must contain “plausible statements as to when, where, in what or by whom,” Center for Bio–Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir.2011), in order to avoid merely pleading an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

B. Analysis

1. Eleventh Amendment Immunity

Though Metz does not assert that the Eleventh Amendment bars Plaintiff's claims, the Court is inclined to briefly discuss its applicability because “the question of sovereign immunity ... implicates important questions of federal-court jurisdiction and federal state comity.' ” Cady v. Arenac Cnty., 574 F.3d 334, 344 (6th Cir.2009) (citation omitted); Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir.1999) (a federal court “may sua sponte raise the issue of lack of jurisdiction because of the applicability of the eleventh amendment”). Because Defendants are state officials, any suit for monetary damages in their official capacity is deemed to be an action against the state of Michigan and therefore subject to dismissal under the Eleventh Amendment. Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th Cir.2004).

A plaintiff seeking relief under 42 U.S.C. § 1983 “must clearly notify any defendant[ ] of [his] intent to seek individual liability.” Moore v. City of Harriman, 272 F.3d 769, 775 (6th Cir.2001). In this case, Plaintiff has not specifically designated the capacity in which he is suing the Defendants. Under the Sixth Circuit's “course of proceedings” test, however, a plaintiff who does not affirmatively plead individual capacity may otherwise put a defendant on notice of an individual capacity suit. Id. at 772–74. This test “considers such factors as the nature of the plaintiff's claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims of qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability.” Id. at 772 n. 1 (emphasis added). Here, though Plaintiff did not affirmatively plead that he is suing Defendants in their individual capacities, his prayer for monetary damages plus Metz's assertion of the qualified immunity defense indicates that Metz was aware of potential liability in his individual capacity. Garcia v. Dykstra, 260 Fed.Appx. 887, 895 (6th Cir.2008) (state actors were “on notice of the possibility of an individual capacity § 1983 claim” due to the plaintiff's “demand for money damages” and the defendants' assertion of qualified immunity as an affirmative defense); Lindsay v. Bogle, 92 Fed.Appx. 165, 169 (6th Cir.2004) (“Although a request for monetary damages alone may not suffice to establish the requisite notice, the assertion of a qualified-immunity defense (even a contingent qualified-immunity defense) indicates that the defendants were aware they could be held personally liable.”) (internal citations omitted). Accordingly, this Court finds that Plaintiff has sued Metz in his individual capacity to which Eleventh Amendment immunity does not apply.

2. Absolute Immunity

“State prosecutors are absolutely immune from civil liability when acting within the scope of their prosecutorial duties.” Howell v. Sanders, 668 F.3d 344, 349 (6th Cir.2012) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)).³ “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Prosecutorial immunity flows from the common-law and “is based upon the same considerations that underlie the common-law immunities of judges and gran[d] jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler, 424 U.S. at 422–23, 96 S.Ct. 984. “Although absolute immunity ‘leave[s] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty,’ ‘the broader public interest’ would be disserved if defendants could retaliate against prosecutors who were doing their duties.” Adams v. Hanson, 656 F.3d 397, 401–02 (6th Cir.2011) (alteration in original) (citing Imbler ).

3 As Metz points out and Plaintiff does not contest, Michigan law governing prosecutorial immunity substantially mirrors the Imbler standard. See, e.g., Cheolas v. City of Harper Woods, 2009 WL 388548, at *9 (E.D.Mich. Feb. 13, 2009) (Rosen, C.J.) (citing Payton v. Wayne Cnty., 137 Mich.App. 361, 357 N.W.2d 700 (1984) and Davis v. Eddie, 130 Mich.App. 284, 343 N.W.2d 11 (1983)); but see Wendrow v. Mich. Dept. of Human Servs., 534 Fed.Appx. 516, 534 n. 2 (6th Cir.2013) (questioning but not deciding “whether Michigan's 1986 governmental-immunity statute eliminated the common-law immunity that Michigan previously afforded to lower-level prosecutors for their quasi-judicial actions”). Accordingly, Defendant's immunity arguments rise and fall with federal law.

The key to determining whether a prosecutor is entitled to absolute immunity requires analyzing whether the prosecutor's alleged activities “were intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. If so, then a prosecutor is absolutely immune from liability, even for egregious conduct such as “the knowing use of false testimony and the suppression of material evidence at [a] criminal trial.” Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir.2003) ( citing Imbler ). There are limits to this broad rule. “[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Instead, courts are to apply a “ ‘functional approach,’ which looks at ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269, 113 S.Ct. 2606 (internal citation omitted). “[T]he critical inquiry is how closely related is the prosecutor's challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process.” Spurlock, 330 F.3d at 798. (internal quotation marks and citation omitted).

In Buckley, for example, the Supreme Court focused on the distinction between a prosecutor's “investigative” and “judicial” acts:

A prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. We have not retreated, however, from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial or before a grand jury after a decision to seek an indictment has been made.

* * *

There is a difference between the advocate's role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective's role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is “neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Thus, if a prosecutor plans and executes a raid on a suspected weapons cache, he “has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.”
509 U.S. at 273–74, 113 S.Ct. 2606 (internal citations omitted). The Buckley Court also rejected the notion that a prosecutor may “shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as ‘preparation’ for a possible trial.” Id. at 276, 113 S.Ct. 2606. Accepting such an argument would mean that “every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial.” Id. Applying this reasoning, the Supreme Court held that absolute immunity did not apply to a prosecutor's investigation done in part to establish probable cause, as well as to statements made to the press. Id. at 274–77, 113 S.Ct. 2606.

“The line between conduct that is part of a preliminary investigation and conduct that is intimately associated with the judicial phase of a criminal proceeding is difficult to draw in some cases.” Prince v. Hicks, 198 F.3d 607, 612 (6th Cir.1999). Despite Plaintiff's assertion to the contrary (Plf's Resp., Dkt. # 26, at 15–16), “[t]he dividing line” between these acts “is not ... the point of determination of probable cause. Instead, the dividing line is the point at which the prosecutor performs functions that are intimately associated with the judicial phase of the criminal process.” Prince, 198 F.3d at 614.⁴ As applicable to the case at bar, the Sixth Circuit helped further refine this distinction in Ireland v. Tunis, 113 F.3d 1435 (6th Cir.1997), and Prince v. Hicks, 198 F.3d 607 (1999).

4 In Prince, the Sixth Circuit discussed the Supreme Court's language in Buckley that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. at 614 (citing Buckley, 509 U.S. at 274, 113 S.Ct. 2606). This quote, without context, appears to draw the bright line Plaintiff so articulates. As the Sixth Circuit explained in Prince, however, “[a] footnote in Buckley following the above-quoted sentence clarifies a point that [Plaintiff] fails to recognize. A prosecutor performing an investigative function before she has probable cause to arrest a suspect cannot expect to receive the protection of absolute immunity, but a prosecutor who initiates criminal proceedings against a suspect whom she had no probable cause to prosecute is protected by absolute immunity.” Id.; see also Gregory v. City of Louisville, 444 F.3d 725, 740 (6th Cir.2006) (“The Buckley Court dismissed the argument that probable cause was a dividing line for potential liability attendant to prosecutors' actions.”).

In Ireland, the Sixth Circuit clarified that “[i]nvestigative acts undertaken in direct preparation of judicial proceedings, including the professional evaluation of evidence, warrant absolute immunity, whereas other acts, such as the preliminary gathering of evidence that may ripen into a prosecution, are too attenuated to the judicial process to afford absolute protection.” 113 F.3d at 1445. This includes “a prosecutor's decision to file a criminal complaint and seek an arrest warrant and the presentation of these materials to a judicial officer.” Id. at 1445. “In this role,” continued the Sixth Circuit, “a prosecutor is unquestionably functioning as an advocate for the state in the judicial process, and absolute immunity is fully justified because the integrity of the judicial system depends in large part upon a prosecutor's ability to exercise independent judgment in deciding whether and against whom to bring criminal charges.” Id. This also includes “administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution.” Id. at 1447. But, “not all investigative acts undertaken by a prosecutor will be absolutely protected. Conducting a preliminary investigation is generally removed from a prosecutor's role in a judicial proceeding; ‘such investigations take place outside the adversarial arena with its attendant safeguards that provide real and immediate checks to abusive practices.’ ” Id. at 1447 n. 7. (citation omitted).

Applying these principles to the prosecutors' actions (an alleged involvement in bringing politically motivated criminal charges), the Sixth Circuit held in Ireland that they were “entitled to absolute prosecutorial immunity for deciding to file a criminal complaint against [the plaintiff], authorizing and preparing the complaint, seeking a warrant for her arrest, and ... presenting the charging documents to the judge [because t]hese were advocacy functions intimately associated with the judicial phase of the criminal process.” Id. at 1447. Importantly, and in contrast to Plaintiff's allegations regarding Metz's role here, the plaintiff in Ireland did not “contend that her alleged constitutional deprivation arose from the prosecutors' investigative activities undertaken antecedent to the decision to file criminal charges.” Id.

A few years later, the Sixth Circuit affirmed the denial of absolute immunity for a prosecutor's preliminary investigatory conduct and advice regarding the existence of probable cause in Prince. The underlying facts in Prince revolved around a custody dispute involving the plaintiff's grandson. 198 F.3d at 610. Plaintiff—a vocal critic of the local District Attorney General—agreed to take physical custody of her grandson while one of his parents entered a drug treatment program. Id. Upon the parents' demand for her to return their child, plaintiff sought an emergency protective custody order fearing that the parents would leave the state. Id. The parents then contacted the defendant, an Assistant District Attorney General, who eventually sought and received an arrest warrant for the plaintiff. Id.

After the charges were dropped, the plaintiff sought to hold the defendant liable for her “alleged investigation of, or failure to investigate adequately, criminal charges against [the plaintiff.]” Id. The plaintiff's allegations concerning the defendant's investigatory role were as follows:

After the [the child's parents] contacted [the defendant], she and Defendant Hazelhurst, an Anderson County detective, undertook to perform an investigation of the circumstances surrounding the [parents'] complaints or, alternatively, performed no investigation or a grossly inadequate investigation. Prior to the establishment of any probable cause whatsoever for the arrest or charging of the Plaintiff with a crime, the Defendants knew or should have known that the Plaintiff had applied for an emergency protective custody order with the Juvenile Court for Knox County, Tennessee, were aware or should have been aware of the circumstances surrounding Plaintiff's taking physical custody of the child and were aware or should have been aware that there was no probable or justifiable cause to believe Plaintiff had committed or was committing a crime.
Id. at 611. Focusing “on the specific circumstances of the case” as alleged in the plaintiff's complaint, the Sixth Circuit affirmed the denial of absolute immunity because the “allegations refer to conduct that occurred while [the defendant] performed administrative and investigative functions that were not intimately associated with the judicial phase of the criminal proceedings.” Id. at 613. The Sixth Circuit continued:

In her amended complaint, [plaintiff] claims that [the defendant] engaged in unconstitutional conduct when she “undertook to perform an investigation of the circumstances surrounding [the daughter and son-in-law's] complaints or, alternatively, performed no investigation or a grossly inadequate investigation.” Because [the defendant] has failed to meet her burden to show that the alleged investigation or failure to investigate was intimately associated with the judicial phase of the criminal process, the district court properly refused to dismiss the allegations contained in ¶ 13 of the amended complaint on absolute immunity grounds.
Id. ( citing Buckley, 509 U.S. at 274, 113 S.Ct. 2606 (“A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.”); Ireland, 113 F.3d at 1447 n. 7 (“Conducting a preliminary investigation is generally removed from a prosecutor's role in a judicial proceeding; ‘such investigations take place outside the adversarial arena with its attendant safeguards that provide real and immediate checks to abusive practices.’ ”)); see also Heard v. City of Hazel Park, 2012 WL 1867313, at *3 (E.D.Mich. May 22, 2012) (Cook, J) (similar); Coopshaw v. Figurski, 2008 WL 324103, at *6–11 (E.D.Mich. Feb. 6, 2008) (Borman, J.) (similar).

“Because ‘[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute,’ [this Court] must identify precisely the wrongful acts allegedly performed by [Metz], and classify those acts according to their function.” Adams, 656 F.3d at 403 (quoting Burns, 500 U.S. at 495, 111 S.Ct. 1934). Here, Plaintiff's allegations concerning Metz can be broken down into three general functional categories: (a) participation in the investigation into the Lear Plant redevelopment deal; (b) giving advice regarding the investigation and the propriety of Plaintiff's arrest; and (c) initiating Plaintiff's prosecution. Each is addressed in turn.

a. Participation in the Investigation Into the Lear Plant Redevelopment Deal

The bulk of Plaintiff's facts concerning Metz land in this category, undoubtedly in an attempt to avoid absolute immunity.⁵ Plaintiff alleges that Metz “gathered documents from various persons, and conducted both unrecorded and stenographically recorded statements from various people.” (Plf's Am. Compl., Dkt. # 18, at ¶ 90). More specifically, Metz engaged in the following “investigatory acts:”

5 Plaintiff added these factual assertions as part of his Amended Complaint, apparently in response to a threatened motion to dismiss on prosecutorial immunity grounds.

• Determining, independently and in conjunction with the defendant Motley, the witnesses and potential witnesses who would be contacted and interviewed;

• Planning the questioning for persons interviewed in the course of the investigation;

• Conducting critical interviews of the key witnesses who provided testimony directly contrary to that which was offered to the District Court judge at the time the warrant was issued;

• Observing interviews of other witnesses; and

• Examining documents obtained.
( Id. at ¶ 112). Metz also “consciously ignored” “important exculpatory evidence,” ( Id. at ¶ 114), and “made or participated in the decision to avoid speaking with plaintiff” despite being aware of Plaintiff's desire to disclose information in order to avoid prosecution. ( Id. at ¶ 116).

These factual allegations, taken as true, only relate to the investigative steps Metz took in concert with Motley before the magistrate's finding of probable cause and not to any other function. They are, therefore, not distinguishable from those in Prince and Buckley and mandate a finding that Metz is not entitled to absolute immunity for his participation in the investigation. Metz has failed to meet his burden to show that his investigation and/or lack of investigation “was intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. Stated differently, he has failed to put forth evidence that his investigation was part and parcel with his advocacy function in preparation for a judicial proceeding and was not just done to assist in establishing probable cause. Prince, 198 F.3d at 613. And, that Plaintiff was charged with a crime does not retroactively convert Metz's role in the investigation into a prosecutorial function. Buckley, 509 U.S. at 275–76, 113 S.Ct. 2606.

The Court does not take Metz's policy arguments as to why absolute immunity should apply lightly. Prosecutors are often involved with criminal investigations before probable cause determinations, but Metz's argument that “[d]enying absolute immunity in a case such as this would likely ‘eviscerate’ ... absolute immunity” is overstated. (Def's Br., Dkt. # 23, at 15). It, in no uncertain terms, ignores the Supreme Court and Sixth Circuit's cautions to “ focus on the specific conduct at issue in a case ... [because] the absolute immunity question nonetheless turns on the specific circumstances of the case.” Prince, 198 F.3d at 612 (citations omitted and emphasis added). Here, the specific circumstances relative to Metz's investigative function, as set forth above, dictate a finding of no absolute immunity.

b. Giving Advice Regarding the Investigation and the Propriety of Plaintiff's Arrest

Plaintiff asserts, upon information and belief, that Metz “may have given advice to the defendant Motley concerning how the investigation that (sic) was to be pursued and further gave advice to Motley and others as to the propriety of the arrest of plaintiff.” ( Id. at ¶ 113). The Court declines Metz's broad invitation to hold that advice provided by a prosecutor to an investigator as to how to pursue an investigation or as to the propriety of an arrest constitutes “the professional evaluation of the evidence assembled.” (Def's Br., Dkt. # 23, at 14). Just as in Prince, Plaintiff alleges that Metz gave Motley legal advice prior to the existence of probable cause and prior to Motley's testimony to the magistrate that initiated criminal proceedings against Plaintiff. Considering Plaintiff's Complaint in the light most favorable to Plaintiff, Metz was not acting as an advocate for the state in so advising Motley. Prince, 198 F.3d at 613–15. Accordingly, Metz is not entitled to absolute immunity in this function either.

c. Initiating Plaintiff's Prosecution

Finally, though he makes absolutely clear that the above-referenced “functions were separate and distinct from his prosecutorial functions which may have included making determinations as to the appropriateness of charging plaintiff and preparing paperwork for submission to the court,” Plaintiff's Complaint also sets forth facts related to the prosecutorial process. (Plf's Am. Compl., Dkt. # 18, at ¶ 114). He, for example, asserts that Metz avoided interviewing Plaintiff “to obtain additional facts necessary to [make] an informed decision to prosecute.” ( Id. at ¶ 116(b)) (emphasis added). Plaintiff also asserts that “[h]ad the investigation been performed in good faith and in a legitimate attempt to uncover the truth, the prosecution never would have been initiated.” ( Id. at ¶ 117). Accordingly, Plaintiff summarily concludes that Metz “may also have conspired with Defendant Motley to provide false information to the court at that (sic) time of the issuance of the warrant for plaintiff's arrest.” ( Id. at ¶ 118).

These functions clearly relate to the decision to prosecute, to which absolute immunity absolutely applies. Burns, 500 U.S. at 484, 111 S.Ct. 1934 (prosecutors have absolute immunity from “suits for malicious prosecution and ... this immunity extend[s] to the knowing use of false testimony before the grand jury and at trial”); Buckley, 509 U.S. at 274 n. 5, 113 S.Ct. 2606 (acknowledging that absolute immunity shields “a prosecutor's decision to bring an indictment, whether he has probable cause or not”); Spurlock, 330 F.3d at 797 (“[P]rosecutors are absolutely immune from many malicious prosecution claims.”).

3. Plaintiff's Complaint Fails to Identify Any Actions Taken By Metz That Are Outside the Scope of Prosecutorial Immunity

As to those remaining “functions” to which absolute immunity does not apply, Metz asserts that qualified immunity applies in the alternative. This Court need not address this argument, however, as “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citation omitted). Upon review of Plaintiff's Amended Complaint, it is clear that Plaintiff's alleged injuries attributable to Metz arise out of his prosecution for attempted fraud against the state—not any investigative misconduct independent of the prosecution. As indicated above, there is no doubt that Metz is absolutely immune for any role he played in Plaintiff's prosecution. In order for Plaintiff's lawsuit against Metz to proceed, therefore, he must link his malicious prosecution claims to the investigation in order to avoid absolute immunity.

“To succeed on a malicious-prosecution claim under § 1983 when the claim is premised on a violation of the Fourth Amendment, a plaintiff must prove the following:”

First, the plaintiff must show that a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute. Second, because a § 1983 claim is premised on the violation of a constitutional right, the plaintiff must show that there was a lack of probable cause for the criminal prosecution. Third, the plaintiff must show that, as a consequence of a legal proceeding,the plaintiff suffered a deprivation of liberty, as understood in our Fourth Amendment jurisprudence, apart from the initial seizure. Fourth, the criminal proceeding must have been resolved in the plaintiff's favor.
Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir.2010) (internal citations, quotations, and alternations omitted). The elements of a malicious prosecution claim under Michigan law are slightly different:

To make out a case of malicious prosecution under Michigan law, the plaintiff has the burden of proving (1) that the defendant had initiated a criminal prosecution against him, (2) that the criminal proceedings terminated in his favor, (3) that the private person who instituted or maintained the prosecution lacked probable cause for his actions, and (4) that the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice.
Alman v. Reed, 703 F.3d 887, 902 (6th Cir.2013) (citing Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 572 N.W.2d 603 (1998)) (quotations and alterations omitted). Plaintiff's problem, however, is that he has not alleged that Metz violated his Constitutional and Michigan Common law rights when Metz engaged in functions not covered by absolute immunity.

Just like the line delineating prosecutorial conduct protected by absolute immunity from conduct that is not is difficult to draw, so too is the line between prosecutorial immunity and stating a claim for relief. In Buckley, which involved an allegation that a prosecutor fabricated evidence during his investigation, the Supreme Court articulated this similar line-drawing problem:

As we have noted, the Imbler approach focuses on the conduct for which immunity is claimed, not on the harm that the conduct may have caused or the question whether it was lawful. The location of the injury may be relevant to the question whether a complaint has adequately alleged a cause of action for damages.
Buckley, 509 U.S. at 271–72, 113 S.Ct. 2606 (emphasis added); see also id. at 274 n. 5, 113 S.Ct. 2606 (“[T]he dissent's distress over the denial of absolute immunity for prosecutors who fabricate evidence regarding unsolved crimes ... seems to conflate the question whether a § 1983 plaintiff has stated a cause of action with the question whether the defendant is entitled to absolute immunity for his actions.”). Justice Scalia fleshed out this point in his concurrence:

[M]any claims directed at prosecutors, of the sort that are based on acts not plainly covered by the conventional malicious-prosecution and defamation privileges, are probably not actionable under § 1983, and so may be dismissed at the pleading stage without regard to immunity—undermining the dissent's assertion that we have converted absolute prosecutorial immunity into “little more than a pleading rule,” I think petitioner's false-evidence claims in the present case illustrate this point. Insofar as they are based on respondents' supposed knowing use of fabricated evidence before the grand jury and at trial—acts which might state a claim for denial of due process—the traditional defamation immunity provides complete protection from suit under § 1983. If “reframe[d] ... to attack the preparation” of that evidence, the claims are unlikely to be cognizable under § 1983, since petitioner cites, and I am aware of, no authority for the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial or otherwiseharms him, violates the Constitution.
Id. at 281 (Scalia, J., concurring) (internal citations omitted and alterations in original).

A trio of more recent decisions address this pleading dichotomy and support the dismissal of Plaintiff's claims against Metz. First, take the Sixth Circuit's decision in Koubriti v. Convertino, 593 F.3d 459 (6th Cir.2010), a case that spun-off from the so-called “Detroit Sleeper Cell” matter over which this Court presided. See U.S. v. Koubriti, 336 F.Supp.2d 676 (E.D.Mich.2004) (Rosen, J.). In Convertino, the defendant was the Assistant United States Attorney responsible for successfully prosecuting Koubriti on terrorism-related charges. Convertino, 593 F.3d at 463. As it turned out, Convertino was successful in the criminal case largely because he utterly failed to turn over exculpatory materials and misled the Court, the jury, Koubriti and the other Defendants “as to the nature, character and complexion of critical evidence that provided important foundations for the prosecution's case.” Koubriti, 336 F.Supp.2d at 681.

After a lengthy post-verdict investigation ordered by the Court, the Court vacated the convictions, and Koubriti then filed a Bivens action, alleging that Convertino violated the Fifth Amendment “by maliciously and intentionally withholding exculpatory evidence and fabricating evidence contrary to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Convertino, 593 F.3d at 469–70. As pertinent here, Koubriti alleged that Convertino did not disclose that the government could not establish the location of certain sites depicted in suspicious drawings in a day planner allegedly tied to Koubriti. Id. at 462, 466. In finding that the district court erred in not granting Convertino absolute immunity as to this allegation, the Sixth Circuit held that this was “nothing more than an accusation that Convertino failed to disclose exculpatory evidence” and that it is clear that “prosecutors have absolute immunity from civil liability for the non-disclosure of exculpatory information at trial.” Id. at 467–68 ( citing Imbler, 424 U.S. at 431, 96 S.Ct. 984 and Jones v. Shankland, 800 F.2d 77 (6th Cir.1986)).

In an attempt to distance himself from this general rule, Koubriti argued that Convertino's investigation produced the exculpatory evidence, which therefore negated absolute immunity. Id. at 468. The Sixth Circuit rejected this argument:

Koubriti attempts to distinguish his claim by focusing on the circumstances surrounding the acquisition of the alleged exculpatory information produced by Convertino's investigation instead of the actual non-disclosure of the information. In his brief to this court, Koubriti highlights the fact that Convertino traveled to Jordan some fifteen months before the trial began and investigated the buildings allegedly depicted in the day planner sketches. The district court, in agreeing with Koubriti, stated that “immunity cannot extend to actions by a prosecutor that violate a person's substantive due process rights by obtaining, manufacturing, coercing or fabricating evidence before filing formal charges, even if the subsequent use of that evidence is protected by absolute immunity.” The argument made by Koubriti and the district court fails to recognize that Koubriti is not requesting relief for some alleged violation that took place during Convertino's trip to Jordan. There is nothing in the complaint to suggest that Koubriti is arguing that he is entitled to relief here because of some due process violation Convertino committed while he investigated the case in Jordan. That would be a different claim.... Instead, what we have in the instant case is an allegation that relies on Brady—a case dealing with the non-disclosure at trial of exculpatory information—and is based on the non-disclosure of a pertinent fact, not the underlying investigation itself. There is no claim here of evidence fabrication, and it is not the evidence that resulted from the trip of which Koubriti complains.

* * *

The very same policy reasons undergirding the Supreme Court's decision in Imbler also counsel in favor of recognizing absolute immunity here. Since prosecutors are almost always involved with the police's investigation of crimes, denying absolute immunity in cases such as this would likely “eviscerate” the absolute immunity in traditional non-disclosure claims that the Supreme Court has already decided to protect. Likewise, it would “weaken the adversarial system” and interfere with prosecutorial discretion much in the same way that caused the Imbler Court to rule in favor of granting immunity. Since Plaintiff's claim (and underlying harm) is only related to the non-disclosure and not the underlying investigation, the Imbler and Jones dispositions lead us to the conclusion that Convertino has absolute immunity from this claim.
Id. at 468–69 (emphasis added and internal citations omitted).

Instructive here as well is Bianchi v. McQueen, 917 F.Supp.2d 822 (N.D.Ill.2013), in a case alleging that state special prosecutors abused their positions by bringing criminal charges against Illinois State Attorneys as part of a “politically motivated conspiracy.” Id. at 825. As pertinent here, the plaintiffs claimed that these special prosecutors manufactured evidence as it related to allegations that the plaintiffs engaged in official misconduct, such as having staff perform political work, theft/misappropriation, and giving benefits in criminal prosecutions to friends, relatives, and supporters. Id. at 825–26. The special prosecutors presented this manufactured evidence and other false statements to a grand jury, which ultimately resulted in criminal charges against the plaintiffs. These charges were eventually dismissed and plaintiffs instituted litigation against the special prosecutors, alleging, among other claims, false arrest under 42 U.S.C. § 1983. Id. at 827.

In dismissing plaintiffs' false arrest claim, the court refused to connect the allegations of participating in a “sham” investigation to the Plaintiffs' alleged constitutional injury. Because similar factual issues are at play in this case, the Court extensively quotes Judge Dow's opinion in Bianchi:

Plaintiffs were arrested after they were indicted by a grand jury and warrants were issued based on the indictments. McQueen cannot be liable for false arrest if Plaintiffs were arrested because of witness testimony or his presentation of witness testimony before the grand jury. A prosecutor's conduct before a grand jury is absolutely immune.... Of course, if a prosecutor manufactured incriminating evidence while investigating a case, presented that manufactured evidence to the grand jury, and the grand jury returned an indictment, he could not claim absolute immunity for what he did during the investigation. A judicial proceeding does not automatically immunize misconduct that happened before it. But, by the same token, just because a prosecutor was involved in a case in an investigatory role does not mean that he is deprived of immunity for what he did as a prosecutor.

* * *

In this case, at least for Plaintiffs' false arrest claims, the only allegations against McQueen are that he interviewedwitnesses and reviewed ... reports of interviews with witnesses and that those witnesses and [others] testified and produced documents to the grand jury. McQueen, too, is alleged to have testified before the grand jury. The claim is therefore that (1) witnesses gave false or misleading testimony to the grand jury that included rumor, hearsay, and manufactured and/or fabricated evidence, (2) that testimony persuaded the grand jury to issue an indictment, and (3) that indictment caused an arrest. Plaintiffs' false arrest claim against McQueen thus is an attack on grand jury testimony and a prosecutor's conduct before a grand jury (as a witness and a lawyer). This is not a case where a prosecutor is claiming immunity for investigatory conduct just because it was part of a series of events that led to a judicial proceeding. Here, it is plainly conduct at a judicial proceeding—grand jury testimony—that Plaintiffs claim caused their injuries related to the allegedly false arrest.

In order to find that the indictment, and so the arrest, was improper, the Court would have to scrutinize grand jury transcripts and decide whether witnesses (including McQueen) perjured themselves before the grand jury. That, however, is precisely what the Court cannot do in deciding a claim for money damages against a prosecutor. Especially following the Supreme Court's recent decision in Rehberg [v. Paulk, ––– U.S. ––––, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012) ], the Court is not persuaded by Plaintiffs' argument that they are seeking damages for a conspiracy to present false testimony or a conspiracy to prepare witnesses to give false testimony.... That does not immunize all preparation or turn all investigation into preparation. But that is not what is going on here. Here, the relevant allegations are that evidence was presented to a grand jury and that the evidence was reviewed before it was presented. Plaintiffs cannot “reframe” their challenge to (allegedly) false or repudiated grand jury testimony by pointing to alleged misconduct at the outset of the investigation. It was not the mere existence of an investigation that caused Plaintiffs' arrest; testimony before the grand jury did that.

Plaintiffs have not stated a plausible claim that improper actions by McQueen outside the scope of his duties as a prosecutor infected the grand jury proceedings and so somehow caused Plaintiffs' arrests. One more time, recall the alleged causal chain. Amy Dalby, an SAO employee, shared confidential documents with Bianchi's Republican primary opponent and the media. Bianchi got a special prosecutor appointed. Dalby was investigated and eventually pled guilty to computer tampering. Dalby then petitioned Judge Graham to appoint a special prosecutor to investigate Bianchi, alleging that he abused his position at the SAO. Judge Graham granted Dalby's petition and appointed Tonigan and McQueen as special prosecutors. Tonigan and McQueen interviewed Dalby and others and asked for Judge Graham to expand the scope of their investigation. Judge Graham granted that request, and there were more interviews and documents produced. A grand jury convened and witnesses (including McQueen) appeared before it. The grand jury indicted Plaintiffs, and the indictments led to their arrests. Where is McQueen's misconduct outside his role as a prosecutor (or before the grand jury)? Plaintiffs point to the Tonigan letter [that “contained blatantly false statements” to Judge Graham requesting to expand the investigation] through which they allege that Tonigan and McQueen manipulated Judge Graham to have their mandate expanded. But that did not cause Plaintiffs' arrests. At most, that led to interviews, and those interviews did not violate the Fourth Amendment. Plaintiffs (quite properly) are not claiming a right not to be investigated or talked about. Individuals were interviewed and then testified before the grand jury. In the context of this case at least, interviewing a witness before his or her testimony before a grand jury is conduct within the scope of McQueen's role as a prosecutor and so is absolutely immune. Testimony before the grand jury is absolutely immune. And, as has long been the rule, a prosecutor's conduct before a grand jury is absolutely immune.
Id. at 830–32 (emphasis added and internal citations omitted).

Finally, both the procedural history and language from the Supreme Court's recent decision in Rehberg ultimately drives home this Court's conclusion. The Rehberg plaintiff sued a district attorney, a specially-appointed prosecutor, and an investigator alleging various § 1983 claims—including one for malicious prosecution—relating to being indicted three separate times for different charges that the state court eventually dismissed. As applicable here, the plaintiff lodged complaints concerning prosecutorial misconduct during the pre-indictment investigation, as set forth by the Eleventh Circuit:

Hodges [the District Attorney] and Paulk [the Chief Investigator], acting as investigators, got together as a favor to the hospital, with malice and without probable cause, and made up a story about Rehberg, and then Paulk (at Hodge's direction) told that fake story under oath to the grand jury, leading to Rehberg's indictment and arrest.
Rehberg v. Paulk, 611 F.3d 828, 840 (11th Cir.2010). The Eleventh Circuit concluded that absolute immunity barred the plaintiff's claims, reasoning that “[s]ince Paulk receives absolute immunity for his false testimony before the grand jury, Hodges and Paulk are similarly immune for their alleged conspiracy to fabricate and present false testimony to the grand jury.” Id. at 841 ( citing, inter alia, Jones v. Cannon, 174 F.3d 1271 (11th Cir.1999) (“To allow a § 1983 claim based on subornation of perjured testimony where the allegedly perjured testimony itself is cloaked in absolute immunity would be to permit through the back door what is prohibited through the front.”)). The Eleventh Circuit also noted that in contrast to other cases involving prosecutorial misconduct during investigations,

there is no allegation of any physical or expert evidence that Hodges or Paulk fabricated or planted. There is no allegation of a pre-indictment document such as a false affidavit or false certification. Rather, Hodges and Paulk are accused of fabricating together only the testimony Paulk later gave to the grand jury. No evidence existed until Paulk actually testified to the grand jury. Stated differently, the only evidence Rehberg alleges was fabricated is Paulk's false grand jury testimony, for which Paulk receives absolute immunity.
Id. at 841–42.

Though the prosecutor's absolute immunity was not appealed to the Supreme Court, the investigator's was. The Supreme Court affirmed the Eleventh Circuit on this point, again applying the familiar “functional approach.” Rehberg, 132 S.Ct. at 1501–03. Concluding that grand jury witnesses “should enjoy the same immunity as witnesses at trial,” id. at 1506, the Supreme Court reinforced the public policy implications underpinning the Eleventh Circuit's holding concerning immunity for engaging in a conspiracy to present false testimony before a grand jury:

[T]his rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness' testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, “a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.” In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.
Id. at 1506–07 (internal citations omitted).⁶ See also Grant v. Hollenbach, 870 F.2d 1135, 1138–40 (6th Cir.1989) (prosecutors absolutely immune from claims of conspiring to bring false charges, failing to investigate, and falsely obtaining an indictment).

6 To be sure, the Supreme Court made a distinction in Rehberg between a witness's testimony before a grand jury and that of a “complaining witness” who, like Motley, are law enforcement officials who submit affidavits in support of applications for an arrest warrant. Id. at 1507–09. This is a distinction without a difference given that the scope of Motley's potential immunity is not at issue at this time.

Here, as with the plaintiffs in Convertino, Bianchi, and Rehberg, Plaintiff seeks respite from absolute immunity in the fact that Metz participated in an investigation before his arrest. But the malicious prosecution claims set forth in his Amended Complaint make clear that he is seeking relief as a result of his prosecution. Accordingly, Plaintiff has not stated any claim to which absolute prosecutorial immunity does not apply. Plaintiff's claims against Metz must be dismissed. See also Grant, 870 F.2d at 1138–39 (“This is not a case in which the prosecutor allegedly violated plaintiff's or another's constitutional rights through actual investigation.”); Cheolas, 2009 WL 388548, at *8–9 (“Although the allegations in support of count II make reference to activities—most notably, the fabrication of evidence—that are more investigative in nature, and therefore may not be shielded by absolute immunity, nothing in the complaint forges ... a link between these sorts of activities and the Defendant prosecutors. Rather, as to these Defendants, Plaintiffs allege only that they brought criminal charges and continued to prosecute despite the lack of probable cause or sufficient evidence, and that they plea bargained in bad faith. As explained earlier, the Defendant prosecutors enjoy absolute immunity from liability for any federal § 1983 claims arising from such activities.”).

IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendant Metz's Motion to Dismiss [Dkt. # 23] is GRANTED.

IT IS SO ORDERED.

OPINION AND ORDER REGARDING PLAINTIFF'S MOTIONS FOR RECONSIDERATION AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

I. INTRODUCTION

On March 3, 2014, this Court dismissed Plaintiff John C. Buchanan Jr.'s claims against Defendant James W. Metz II. 6 F.Supp.3d at 750. Presently before the Court are two related motions: (1) Plaintiff's Motion for Reconsideration of Opinion and Order Granting Defendant Metz's Motion to Dismiss (Dkt. # 38); and (2) Plaintiff's Motion for Leave to File Second Amended Complaint (Dkt. # 44). Having reviewed and considered Plaintiff's Motions and supporting briefs, Defendant's Response to the latter,¹ and the entire record of this matter, the Court has determined that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Therefore, the Court will decide these matters “on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). The Court's Opinion and Order is set forth below.

1 Pursuant to Eastern District of Michigan Local Rule 7.1(h)(2), Metz was not permitted to respond to Plaintiff's Motion for Reconsideration unless this Court ordered otherwise—which it did not.

II. DISCUSSION

A. Procedural History

Though the parties and the Court are quite familiar with this matter, a brief procedural history will help place Plaintiff's two Motions into context. This action arises out of Plaintiff's failed attempt to redevelop a manufacturing plant outside of Grand Rapids into a film studio as part of Michigan's Film and Digital Media Tax Credit program. He alleges that the project was on track until “politics intervened,” which led to a “sham investigation” by the Michigan Attorney General. The investigation, according to Plaintiff, was designed with the ends in mind: a politically-motivated prosecution of Plaintiff and his business partner in order to make the office look tough on fraud in support of then-Attorney General Mike Cox's campaign for governor. The Michigan Attorney General eventually filed criminal charges against both individuals on the theory that the redevelopment plan was really just a scheme to bilk the State of Michigan out of millions of dollars of film tax credits.

After a Michigan state court dismissed the criminal charges for want of probable cause, Plaintiff commenced this action against the two individuals responsible for the investigation: Defendant James W. Metz II, an Assistant Attorney General, and Defendant Donovan Motley, an investigator. His First Amended Complaint raised causes of action under the Fourth Amendment and Michigan common law for malicious prosecution and false arrest, essentially alleging that Metz and Motley decided to pursue charges against him without probable cause and effectuated this by having Motley make false statements to a magistrate. Metz subsequently moved to dismiss Plaintiff's First Amended Complaint on the grounds that it failed to state a claim under Rule 12(b)(6), or in the alternative, that he enjoyed absolute or qualified immunity.

In granting Metz's Motion, this Court went into some detail about the scope of prosecutorial immunity generally, as well as its application to Plaintiff's First Amended Complaint. Id. at 738–50. Though this Court found that some of the activities in which Metz engaged were not entitled to absolute immunity, it concluded that Plaintiff's First Amended Complaint did “not state[ ] any claim to which absolute immunity [did] not apply.” Id. at 750. This was because “Plaintiff's alleged injuries attributable to Metz [arose] out of his prosecution for attempted fraud against the state—not any investigative misconduct independent of the prosecution.” Id. at 751. In short, Plaintiff's allegations did not set forth any claims arising out of a constitutionally infirm investigation that were independent from his claims arising out of his arrest and subsequent prosecution. Id. at 744–50.

Plaintiff's Motions for reconsideration and for leave to amend now seek to revive his claims against Metz. The former argues that he discovered additional facts after briefing that support his initial claims. The latter now adds these new facts as well as recasts some of his claims as ones based on substantive due process and false arrest. The Court addresses each in turn.

B. Plaintiff's Motion for Reconsideration

Eastern District of Michigan Local Rule 7.1(h) governs Plaintiff's Motion for Reconsideration, and provides in relevant part, that:

Generally, and without restricting the court's discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case.
L.R. 7.1(h)(3). In order to prevail on a motion for reconsideration therefore, the movant must not only demonstrate a palpable defect by which the Court has been misled, he must also show that a different disposition of the case must result from a correction of that defect. A “palpable defect” is “a defect that is obvious, clear, unmistakable, manifest or plain.” United States v. Lockett, 328 F.Supp.2d 682, 684 (E.D.Mich.2004) (Gadola, J.). A motion that merely presents the same issues already ruled upon by the Court—either expressly or by reasonable implication—will not be granted. L.R. 7.1(h)(3); Flanagan v. Shamo, 111 F.Supp.2d 892, 894 (E.D.Mich.2000) (Rosen, J.). Moreover, “a motion for reconsideration is not an appropriate vehicle for raising new facts or arguments.” United States v. A.F.F., 144 F.Supp.2d 809, 812 (E.D.Mich.2001) (Lawson, J.). This is because “[l]ike motions under Federal Rule of Civil Procedure 59, motions under Local Rule 7.1(h) ‘are aimed at re consideration, not initial consideration.’ ” Convertino v. U.S. Dep't of Justice, 2013 WL 6163219, at *1 (E.D.Mich. Nov. 25, 2013) (Cleland, J.) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998)).

In support of his Motion for Reconsideration, Plaintiff argues that he discovered new facts that support his claim against Metz a little over a month after he submitted his Response to Metz's Motion to Dismiss.² On April 29, 2013, Plaintiff deposed the incoming Director of the Michigan Film Office, Carrie Jones, in a state court matter related to the failed redevelopment of the manufacturing plant. (Plf's Mtn., Dkt. # 38, at 2). She testified that the outgoing director, Janet Lockwood, essentially instructed her not to process West Michigan Film's tax credit during the pendency of the Attorney General's investigation. ( Id. at 3–5). Had Jones finalized the tax credit, Plaintiff argues that he would not have (1) been forced to relinquish his interest in his company pursuant to a separate agreement he had entered into with his father (the other co-owner of his company) and (2) had “his reputation as a developer ... destroyed.” ( Id. at 9). Therefore, Plaintiff claims that by linking the Film Office's failure to process the tax credit to the Attorney General's investigation, he has shown that “both the investigation and [his] prosecution damaged [him.]” ( Id. at 2).

2 In addition, Plaintiff's Motion for Reconsideration duplicates his request for leave to amend to add substantive due process violations in lieu of the claims this Court has previously dismissed. (Plf's Mtn., Dkt. # 38, at 10). The Court addresses this request with his Motion for Leave to File Second Amended Complaint.

The procedural posture of this matter necessitates denying Plaintiff's Motion for Reconsideration. This Court's March 3, 2014 Opinion dismissed Plaintiff's First Amended Complaint on the pleadings pursuant to Federal Rule of Civil Procedure 12(b)(6). That rule “tests the legal sufficiency of [P]laintiff's complaint.” Riddle v. Egensperger, 266 F.3d 542, 550 (6th Cir.2001). Plaintiff's instant Motion, however, raises new facts—ones that were not pled in Plaintiff's First Amended Complaint. His Motion is therefore aimed not at reconsideration, but instead at initial consideration. Accordingly, Plaintiff has not and cannot demonstrate a palpable defect by which this Court was misled. Reconsideration is not appropriate.³

3 For what it is worth, these additional facts do not solve the absolute immunity and Rule 12(b)(6) issues that this Court previously addressed with respect to Plaintiff's claims in his First Amended Complaint, which “make[s] clear that he is seeking relief as a result of his prosecution.” 6 F.Supp.3d at 750 (emphasis added). While these additional facts may be relevant to his new claim that the investigation torpedoed his business deal and cost him his interest in his company and his reputation, they have no bearing on the facts surrounding the prosecutorial misconduct claims that are set forth in the First Amended Complaint.

C. Plaintiff's Motion for Leave to File Second Amended Complaint

1. Applicable Standard

“[W]hen a motion to dismiss a complaint is granted, courts typically permit the losing party leave to amend.” PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir.2004), abrogated on other grounds by Matrixx Initiatives, Inc. v. Siracusano, ––– U.S. ––––, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011). This practice recognizes that Federal Rule of Civil Procedure 15(a)(2) instructs courts that leave should be “freely give[n] ... when justice so requires.” Fed.R.Civ.P. 15(a)(2). Such a liberal rule “reject[s] the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept[s] the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Foman v. Davis, 371 U.S. 178, 181–82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (citation omitted).

“Although Federal Rule of Civil Procedure 15(a)(2) provides that a court should freely give leave to amend a complaint when justice so requires, the right to amend is not absolute or automatic.” Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 551 (6th Cir.2008) (internal quotation and modification omitted). “In deciding whether to allow an amendment, the court should consider the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir.2001). An amendment is deemed futile if the resulting amended complaint “could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir.2000). Metz objects to Plaintiff's proposed amendment only on futility grounds. (Defs' Resp., Dkt. # 46).

2. Plaintiff's Proposed Second Amended Complaint

There are just a few differences between Plaintiff's First Amended Complaint and his proposed Second Amended Complaint. With respect to the factual allegations, the proposed Second Amended Complaint adds more details concerning Carrie Jones's testimony referenced above and the effect that the investigation had on Plaintiff's ability to complete the redevelopment deal:

81. As of July 2010, the Michigan Film Office was to get a new Director. The incoming Director testified that the previous denial did not cancel or deny [West Michigan Film's application for a tax credit], but only the first attempt to show compliance so as to merit the tax credit. She testified that an applicant such as West Michigan Film could try again to satisfy the Office that the Application and Agreement had been fulfilled, and that West Michigan Film and Plaintiff wanted to work with the Michigan Film Office to try again to close the deal.

* * *

92. The incoming Director of the Film Office testified that once the investigation began, she had to stop talking to West Michigan Film and stop any processing of the tax credit.

* * *

94. The [Attorney General]'s investigation against Plaintiff continued through the [gubernatorial] election, right through 2010. During this time, it was common knowledge that Plaintiff was under criminal investigation, and Plaintiff was unable to close any development deals while under the cloud of official suspicion. By July 15, 2010, he had also forfeited his interest in the company that owned the building.

* * *

101. Had the investigation been performed in good faith and in a legitimate attempt to uncover the truth, Plaintiff would have been exonerated, the deal could have been completed, he would not have lost his interest in the building, and his reputation would have been enhanced rather than destroyed. In addition, the prosecution never would have been initiated.
(Ex. 1 to Plf's Mtn., Dkt. # 44–1, at ¶¶ 81, 92, 94, 101).⁴

4 Though Plaintiff's Motion does not reference the change, Plaintiff now also alleges that Metz “appl[ied] for document and investigatory subpoenas; and suppl[ied] false, misleading, and defamatory information to the Attorney General's media representative to release to the media so as to falsely tell the public that Plaintiff committed a crime, was dishonest, and was untrustworthy.” (Ex. 1 to Plf's Mtn., Dkt. # 44–1, at ¶ 96(g-h)). Plaintiff's proposed Second Amended Complaint does not, however, bring a separate defamation claim.

The Proposed Second Amended Complaint adds and reorders claims, with only two being pertinent. First, Count I alleges that Metz and Motley's investigation violated (1) the Fourth Amendment's general prescription against arrests without probable cause and (2) the Fifth and Fourteenth Amendment's substantive due process guarantees. ( Id. at ¶¶ 121–132). More specifically:

129. By planning, shaping, and conducting an investigation that ignored the evidence negating probable cause, Defendants, under color of law, violated Plaintiff's Fourth Amendment right to be free of arrest without probable cause, and his Fifth and FourteenthAmendment rights to due process in the investigation.
( Id. at ¶ 129). Count I additionally ties his damages to the investigation:

124. Because of the investigation itself, Plaintiff suffered loss of the profit of the deal with West Michigan Film, loss of other pending deals that were to be financed with the profits, loss of his share of the building, loss of the profits he would have made with the rest of the building, loss of his reputation, and loss of his ability to make any other development deals, and mental anguish.
( Id. at ¶ 124).

Second, Count II alleges that both Metz and Motely violated the Fourth Amendment by effectuating his arrest without probable cause. ( Id. at ¶¶ 133–43). As to Metz, Plaintiff asserts that Metz “either falsely advised Mr. Motley that probable cause existed to arrest Plaintiff, or ordered his arrest in the absence of probable cause.” ( Id. at ¶ 134). With respect to Motley, he obtained an arrest warrant “by misleading the issuing authority ... [by] making false statements and omitting evidencing from the investigatory file that negated probable cause.” ( Id. at ¶ 135).

3. Plaintiff's Count I does not state a claim for relief

Though Plaintiff has couched Count I as one claim, it is really two. First, Count I alleges that Metz and Motley are liable for violating Plaintiff's Fourth Amendment right to be free from arrest without probable cause due to the sham investigation. Second, Count I alleges that Metz and Motley are liable for violating Plaintiff's substantive due process rights under the Fifth and Fourteenth Amendments when their sham investigation resulted in the loss of his business interests in the company he co-owned with his father.

At its core, this litigation involves the allegation of an unlawful arrest and subsequent prosecution—all for political means. Plaintiff's proposed Count I attempts to merge these causes of action into a separate cause of action arising out of a sham investigation. Under Plaintiff's theory, the Constitution permits a state official to be held liable for participating in a sham investigation that leads to an unlawful arrest and prosecution separate and distinct from the Constitutional torts of false arrest and malicious prosecution. In support of this novel theory, Plaintiff relies upon on a myriad of Sixth Circuit and other cases interpreting the scope of absolute and qualified immunity. See, e.g., Parsons v. City of Pontiac, 533 F.3d 492 (6th Cir.2008); Harris v. Bornhorst, 513 F.3d 503 (6th Cir.2008); Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir.2005); Gardenhire v. Schubert, 205 F.3d 303 (6th Cir.2000); Prince v. Hicks, 198 F.3d 607 (6th Cir.1999); Kuehl v. Burtis, 173 F.3d 646 (8th Cir.1999). Whether a state official is entitled to immunity is distinct from whether a plaintiff has alleged a viable cause of action. Plaintiff's citation to these cases appears to conflate application of qualified immunity—i.e., was there probable cause to arrest Plaintiff, which in part sometimes requires an examination of what a particular individual knew (and when) as part of his investigation prior to the arrest, see, e.g., Logsdon v. Hains, 492 F.3d 334, 343–44 (6th Cir.2007)—with whether Plaintiff has stated a cause of action.

As discussed in more detail below, the Court finds Plaintiff's Count I to be futile. Plaintiff has put forth no authority authorizing a separate cause of action for participating in a sham investigation that is independent from a cause of action arising out of the arrest and subsequent prosecution. His claims clearly fail within the ambit of the well-recognized actions of false arrest and malicious prosecution claims under the Fourth Amendment, and should remain there. Plaintiff may not spin these claims off into a distinct claim in an attempt to work around this Court's prior holding with respect to prosecutorial immunity.

a. Plaintiff has not stated an independent Fourth Amendment false arrest claim against Defendants for participating in the “sham investigation”

Plaintiff asks that this Court extend Fourth Amendment jurisprudence to cover a state official's pre-arrest investigation independent from an actual arrest. This Court declines. Plaintiff has put forth no authority—nor could this Court locate any such authority—holding that an individual may hold a state official liable under 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from arrest without probable cause solely because that state official's pre-arrest investigation was designed to ignore evidence and come to a pre-determined result. Plaintiff argues that “the Sixth Circuit has clearly held that when an investigator ... conducts a bogus investigation leading to an arrest without probable cause, he violates the Fourth and Fourteenth Amendments.” (Plf's Reply., Dkt. # 47, at 2) (citing Radvansky, Gardenhire, and Prince, supra ) (emphasis added). But again, these cases involve the interplay between the existence of probable cause and absolute/qualified immunity, not the viability of an independent cause of action resting on the nature of the investigation alone.

Surely, the manner in which a state official conducts an investigation may be relevant to determining whether he had probable cause to effectuate an arrest or whether he has qualified immunity. As but one example, the Sixth Circuit in Gardenhire discussed this “duty to investigate:”

This Court recognizes that an officer does not have to investigate independently every claim of innocence. See Baker v. McCollan, 443 U.S. [137] at 145–56, 99 S.Ct. 2689 [61 L.Ed.2d 433 (1979) ]. But, this axiom does not suggest that an officer has no duty to investigate an alleged crime before making an arrest. A police officer has probable cause only when he discovers reasonably reliable information that the suspect has committed a crime. See Beck [ v. Ohio], 379 U.S. [89] at 91, 85 S.Ct. 223 [13 L.Ed.2d 142 (1964) ]. And, in obtaining such reliable information, an officer cannot look only at the evidence of guilt while ignoring all exculpatory evidence. Rather, the officer must consider the totality of the circumstances, recognizing both the inculpatory and exculpatory evidence, before determining if he has probable cause to make an arrest. See Dietrich [ v. Burrows], 167 F.3d [1007] at 1012 [ (6th Cir.1999) ]. While it is true that “[a] valid arrest based upon then-existing probable cause is not vitiated if the suspect is later found innocent,” “[a] suspect's satisfactory explanation of suspicious behavior is certainly a factor which law enforcement officers are entitled to take into consideration in making the determination whether probable cause to arrest exists.” Criss [ v. City of Kent ], 867 F.2d [259] at 262 [ (6th Cir.1988) ].
205 F.3d at 318. The Sixth Circuit has also held that “officers may [not] make hasty, unsubstantiated arrests with impunity. Several cases both from this and other circuits, caution against incomplete, poorly conducted investigations.... [O]fficers, in the process of determining whether probable cause exists, cannot simply turn a blind eye toward potentially exculpatory evidence known to them in an effort to pin a crime on someone.” Ahlers v. Schebil, 188 F.3d 365, 372 (6th Cir.1999).

But the issue here is not whether Defendants had probable cause sufficient to defeat a claim of false arrest, either substantively or on immunity grounds. Instead, it is whether Plaintiff may reframe a traditional Fourth Amendment false arrest claim into a separate cause of action by “pointing to alleged misconduct at the outset of the investigation.” 6 F.Supp.3d at 748 (citing Bianchi v. McQueen, 917 F.Supp.2d 822 (N.D.Ill.2013)). He cannot, as “[i]t was not the mere existence of an investigation that caused Plaintiffs' arrest; testimony before the [magistrate] did that.” Id. Plaintiff's protestations about the sufficiency of the investigation as it relates to the Fourth Amendment belongs in his independently pled claims that Defendants violated his right against malicious prosecution and to not be arrested without probable cause—causes of action that arise out of his arrest—not a newly formed cause of action that is not supported in law.

b. Plaintiff has not stated a substantive due process claim for participating in a “sham investigation”

“Substantive due process claims may be loosely divided into two categories: (1) deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the conscience.’ ” Pittman v. Cuyahoga Cnty. Dep't of Children & Family Servs., 640 F.3d 716, 728 (6th Cir.2011) (citation omitted). Plaintiff alleges that he “had a right, under the Fifth and Fourteenth Amendments, to due process in the way the investigation against him was initiated, planned, and executed.” (Ex. 1 to Plf's Mtn., Dkt. # 44–1, at ¶ 126).⁵ The Sixth Circuit has not recognized such a claim and this Court declines to do so here.

5 Though Plaintiff relies on the Due Process Clauses contained within both the Fifth and Fourteenth Amendments, the Fifth Amendment's Due Process Clause cannot support a claim against state actors: “The Fourteenth Amendment's Due Process Clause restricts the activities of the states and their instrumentalities; whereas the Fifth Amendment's Due Process Clause circumscribes only the actions of the federal government.” Scott v. Clay Cnty., Tenn., 205 F.3d 867, 873 n. 8 (6th Cir.2000). “ Ergo, ... [Plaintiff]'s citation to the Fifth Amendment Due Process Clause [is] a nullity, and redundant of [his] invocation of the Fourteenth Amendment Due Process Clause.” Id.

The Supreme Court and the Sixth Circuit have made clear that courts are to narrowly interpret substantive due process claims:

[W]e have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.
Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir.2003) (quoting Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotation omitted); see also Graham v. Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This Court has also previously noted the “clear Sixth Circuit precedent declining to extend the ‘shocks the conscience’ standard beyond cases involving physical abuse.” Kawecki ex rel. Marlowe v. Cnty. of Macomb, 2008 WL 205241, at *25 (E.D.Mich. Jan. 24, 2008) (Rosen, J.) (discussing cases).

Here, Plaintiff's allegations clearly do not involve physical force. Additionally, and to the extent his allegations raise the specter of arbitrary behavior, his examples of such conduct—“planning, shaping, and conducting an investigation that ignored the evidence negating probable cause”—directly implicate the Fourth Amendment's protections against malicious prosecution and arrest without probable cause. See, e.g., Robertson v. Lucas, 753 F.3d 606, 615–16 (6th Cir.2014) (noting the distinction between malicious prosecution claims and false arrest claims under the Fourth Amendment). Plaintiff has not presented any binding authority permitting him to recast his Fourth Amendment malicious prosecution and false arrest claims into a substantive due process claim.

Though neither of the parties' respective briefs discussed the parameters of a substantive due process claim in the context of a criminal investigation, the bulk of the case law from other circuits supports this Court's conclusion that Plaintiff's substantive due process claim fails. See, e.g., Freeman v. Town of Hudson, 714 F.3d 29, 41 (1st Cir.2013) (substantive due process claim for pursuing “unsupported criminal charge against [the plaintiff] for personal reasons” was merely “a garden-variety claim of malicious prosecution”); Alexander v. McKinney, 692 F.3d 553, 557–58 (7th Cir.2012) (rejecting substantive due process claim arising out of initial arrest against prosecutor who allegedly manufactured false evidence while performing an investigatory function because plaintiff could not “recast his untimely Fourth Amendment claim ... by combining it with a state law malicious prosecution claim and simply changing the label of the claim to substantive due process”); Hernandez v. Terrones, 397 Fed.Appx. 954, 965–66 (5th Cir.2010) (holding that while there is “no freestanding, clearly established constitutional right to be free from a reckless investigation,” “conducting a reckless investigation could support other claims for violations of established constitutional rights”); Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir.2009) (“A plaintiff cannot state a due process claim ‘by combining what are essentially claims for false arrest under the Fourth Amendment and state law malicious prosecution into a sort of hybrid substantive due process claim under the Fourteenth Amendment.’ ”) (citation omitted); Becker v. Kroll, 494 F.3d 904, 922–23 (10th Cir.2007) (declining to extend substantive due process claim to allegation of a “groundless investigation designed to obtain civil penalties” from the plaintiff); Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir.2004) (“[T]he principle that Albright establishes is that no substantive due process right exists under the Fourteenth Amendment to be free from prosecution without probable cause”).⁶

6 Other district courts are also in accord. See, e.g., Lawrence v. City of St. Paul, 740 F.Supp.2d 1026, 1039 (D.Minn.2010) (declining to find substantive due process claim on basis of “sham investigation” in and of itself); Goodfellow v. Ahren, 2014 WL 1248238, at *6 (N.D.Cal. Mar. 26, 2014) (“An inadequate investigation alone does not ‘involve[ ] the deprivation of a protected right,’ but must implicate ‘another recognized constitutional right.’ ”) (citation omitted); Snell v. Vill. of Bellville, 2011 WL 5361120, at *9 (N.D.Ohio Oct. 28, 2011) (a plaintiff does not have a protected property interest in an “error-free criminal investigation”); Watson v. Grady, 2010 WL 3835047, at *22–23 (S.D.N.Y. Sept. 30, 2010) (collecting cases).

The Court notes that its own research uncovered case law in the Eighth Circuit indicating that a plaintiff may assert a substantive due process claim “based on an inadequate investigation.” See, e.g., Winslow v. Smith, 696 F.3d 716, 732 (8th Cir.2012). Under this body of case law, “a plaintiff must show that the defendant officer's ‘failure to investigate was intentional or reckless, thereby shocking the conscience.’ ” Id. (citation omitted). This includes coercing or threatening a defendant, purposefully ignoring evidence suggesting innocence, or placing systematic pressure to implicate a defendant in the face of contrary evidence. Id. Plaintiff did not raise this line of cases, see e.g., Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir.2013) ( “arguments not raised in a party's opening brief, as well as arguments adverted to in only a perfunctory manner, are waived”), nor did he present any Sixth Circuit authority discussing such cases. Moreover, given the discussion above, this Court cannot conclude that the Sixth Circuit would permit such a claim based on the alleged facts here.

Plaintiff's Count I is therefore futile.

4. Plaintiff's Count II States a Claim for Relief

Plaintiff's Proposed Second Amended Complaint clarifies that he wishes to hold Metz (in addition to Motley) liable for false arrest in violation of the Fourth and Fourteenth Amendments. The Fourth Amendment, as incorporated by the Fourteenth Amendment, provides that “a law enforcement officer may not seize an individual except after establishing probable cause that the individual has committed, or is about to commit, a crime.” Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007) (citation omitted). Though “[a]n arrest pursuant to a facially valid warrant is normally a complete defense to a federal constitutional claim for false arrest, ... [a]n officer cannot rely ... on a facially valid warrant as satisfactory evidence of probable cause ‘when evidence exists that a defendant intentionally mislead or intentionally omitted information at a probable cause hearing for an arrest ... warrant provided that the misleading or omitted information is critical to the finding of probable cause.’ ” Voyticky v. Village of Timberlake, 412 F.3d 669, 677 & n. 4 (6th Cir.2005); see also Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010). Plaintiff has sufficiently stated a cause of action for false arrest against Metz.

There is no doubt that Plaintiff's arrest was effectuated by a warrant issued by a state magistrate. But Plaintiff alleges facts to fit this exception: Metz and Motley orchestrated his arrest by having Motely falsely testify before the magistrate. And as pertinent here to Metz, Plaintiff now alleges without equivocation that Metz “falsely advised Mr. Motley that probable cause existed to arrest Plaintiff, or ordered his arrest in the absence of probable cause.” This Court has already determined that Metz is not entitled to absolute immunity for Plaintiff's prior allegation that “upon information and belief, the defendant Metz also may have given advice to the defendant Motley concerning how the investigation that was to be pursued and further gave advice to Motley and others as to the propriety of the arrest of plaintiff.” 6 F.Supp.3d at 743 (citing Prince, 198 F.3d at 613–15). The same reasoning applies to Plaintiff's similar, but now express allegations.

The Court rejects Defendants' argument that “the damages flowing from [Metz's] advice would be a result of the prosecution that was initiated.” (Defs' Resp., Dkt. # 46, at 5). In other words, Defendants argue that Plaintiff's false arrest claim “does not seek relief as a result of the investigation; rather, the claim seeks reliefas a result of the prosecution.” ( Id.). Defendants' argument ignores the fact that a claim for false arrest is separate and independent from a claim for malicious prosecution. Robertson, 753 F.3d at 615–16; Sykes, 625 F.3d at 305–10. That Plaintiff cannot bring a claim of malicious prosecution against Metz due to absolute immunity, 6 F.Supp.3d at 750, does not also support dismissal of Plaintiff's claim of false arrest against Metz as alleged in his proposed Second Amended Complaint.⁷

7 As this Court noted in its prior Opinion, it was not initially clear as to whether Plaintiff brought a false arrest claim against Metz in his First Amended Complaint, but Plaintiff's briefing clarified that he had not. Id. at 737 n. 2. In dicta, this Court reflected that “[e]ven if this were not the case, the Court's conclusion ... concerning absolute immunity would apply equally to a false arrest claim.” Id. Upon reconsideration, and more importantly, Plaintiff's clarification that he is not only seeking to hold Metz liable for false arrest, but also because he wishes to do so based on the express allegations that Metz “falsely advised Mr. Motley that probable cause existed to arrest Plaintiff, or ordered his arrest in the absence of probable cause,” Plaintiff may pursue a false arrest cause of action against Metz.

To be sure, Metz may ultimately have qualified immunity for his actions regarding Plaintiff's false arrest claim. Metz raised such a defense in his original motion to dismiss, but not in his present Response. He may do so again if he so chooses, but should recognize that “qualified immunity is typically addressed at the summary judgment stage of the case.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th Cir.2001).

In sum, Plaintiff may amend his complaint to add a claim of false arrest against Defendant Metz.

III. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration of Opinion and Order Granting Defendant Metz's Motion to Dismiss (Dkt. # 38) is DENIED; and

IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Second Amended Complaint (Dkt. # 44) is GRANTED IN PART AND DENIED IN PART.

IT IS SO ORDERED.