412 F.3d 707 (6th Cir. 2005), 02-1086, Wolfe v. Perry

Docket Nº:02-1086, 02-1589.
Citation:412 F.3d 707
Party Name:Ronald WOLFE, Jr., Plaintiff-Appellant, v. Allan PERRY et al., Defendants-Appellees.
Case Date:June 27, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 707

412 F.3d 707 (6th Cir. 2005)

Ronald WOLFE, Jr., Plaintiff-Appellant,

v.

Allan PERRY et al., Defendants-Appellees.

Nos. 02-1086, 02-1589.

United States Court of Appeals, Sixth Circuit

June 27, 2005

Argued and Submitted: Nov. 4, 2004.

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[Copyrighted Material Omitted]

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ARGUED:

Marcelyn A. Stepanski, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellees.

ON BRIEF:

Marvin L. Berris, Bingham Farms, Michigan, Victoria Eva Abdella, Franklin, Michigan, for Appellant. Marcelyn A. Stepanski, S. Randall Field, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellees.

Before: MOORE and GIBBONS, Circuit Judges; MILLS, District Judge. [*]

OPINION

MOORE, Circuit Judge.

In these two appeals, Plaintiff-Appellant Ronald Wolfe, Jr. ("Junior") challenges the district court's grant of summary judgment in favor of Defendant-Appellee, Detective Allan Perry ("Perry") as well as the district court's award of attorney fees to Defendants-Appellees Perry, Sheriff's Deputy Ivan Deering ("Deering"), and Assistant Prosecutor Daniel Rose ("Rose"). The district court found that Junior's constitutional claims brought pursuant to 42 U.S.C. § 1983, as well as his state-law claims, were barred by Michigan's three-year statute of limitations. On appeal, Junior argues that the district court erred in holding that the statute of limitations began to run from the date of his arrest. Upon review, we conclude that the district court did err in finding Junior's claims time barred, but that his arrest was supported

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by probable cause. Therefore, we AFFIRM the district court's grant of summary judgment in favor of Perry on other grounds. Furthermore, we AFFIRM the district court's grant of attorney fees to Deering and Rose as well. In light of our conclusion that the claims against Perry were not time barred, we VACATE the attorney fee award to Perry and REMAND to the district court for reconsideration. Finally, because the award amount was not apportioned among the three defendants, we VACATE the entire award amount and REMAND to the district court to allow the court to reconsider the award to Perry.

I. BACKGROUND

These appeals arise out of a criminal investigation into the activities of Junior, his father, Ron Wolfe, Sr. ("Senior"), and his stepmother, Marie Wolfe (collectively, the "Wolfes"). The Wolfes were under investigation for a series of larcenies committed in Livingston County, Michigan, over a two-year period. Specifically, the Wolfes were suspected of involvement in the theft of two hundred bales of hay on August 19, 1996; the theft of building materials, including a large amount of OSB panels, from a construction site on September 15, 1996; the theft of roofing materials from another construction site on September 28, 1996; the theft of two golf carts from a country club on January 7, 1995; the theft of two horses from a residence on May 23, 1996; and finally, a fraudulent insurance claim involving residential windows. 1 The police investigation into the various larcenies was headed by Detective Perry, a deputy with the Livingston County Sheriff's Department. Perry's investigation of the Wolfes consisted primarily of interviews with William Harp ("Harp"), a former friend of Senior, and Harold Van Patten ("Van Patten"), who worked as a handyman for the Wolfes from November 1994 until 1996 at Senior's residence at 5753 Fisher Road ("the Fisher Road residence"). Van Patten's responsibilities included maintaining the property, caring for the animals, and constructing a pole barn. From January through September 1996, Van Patten also resided at the Fisher Road residence, living above the barn.

With regard to the stolen hay, Van Patten informed Perry that one night in August 1996 he was awakened by Senior at half past midnight and told to get dressed and get in Senior's truck. Van Patten noticed that Junior and another man, Rich Munson ("Munson"), were driving a separate truck. The two pickup trucks drove to a field owned by Robert Salmon ("Salmon"), where two wagons filled with hay were located. Van Patten stated that Senior stood guard with a walkie-talkie, while Van Patten drove the truck onto the field and along with Junior and Munson attached the two wagons to the trucks. Van Patten stated that he was so upset about stealing the hay that he was unable to drive and therefore, Senior drove the truck back to the Fisher Road residence. Upon arrival at the residence, Van Patten stated that they drove through pine trees to get to an old airplane hanger located on the north side of the property. Van Patten told Perry that he helped Senior, Junior, and Munson unload the hay into the hangar, and then return the empty wagons by the side of the road near the Salmon residence,

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where they were discovered the next day. Van Patten stated that he believed both Senior and Junior were carrying weapons that night and therefore, he was too afraid to object to participating. The next day, Van Patten claimed that he told Senior "don't you guys ever get me involved in anything like this again, because I'm not this way." Joint Appendix ("J.A.") at 286 (Van Patten Dep. at 9). Van Patten's story was corroborated by a police incident report taken on August 19, 1996, documenting a complaint by Salmon of the theft of bales of hay from his property.

With regard to the stolen construction materials, Harp told Perry that in November 1996, while on a neighboring property, he observed the construction of a pole barn with OSB panels and new shingles at the Fisher Road residence. Harp stated that he told Perry that building materials had been stolen from residential construction sites in the area and suspected the Wolfes' involvement. Perry discussed the matter with Van Patten, whose responsibilities included constructing the pole barn on the Fisher Road residence. Van Patten informed Perry that he went to bed around 12:30 A.M. on September 14, 1996, and the next morning when he went down to feed the livestock he discovered a stack of building materials by the barn. Van Patten claims he asked Senior about the materials, to which Senior responded that Junior and Rich Culbert ("Culbert") had stolen 185 sheets of OSB from a nearby construction site. Van Patten used the materials to construct the remainder of the pole barn. A few weeks later, Van Patten mentioned to Senior that he needed shingles to finish the roof of the pole barn. The next day, Van Patten discovered twenty-five squares of shingles lying on the ground next to the barn along with other roofing materials. Van Patten claims that when he asked Senior about the shingles, Senior responded that Junior and Culbert got them from a house being built down the road. Van Patten used the shingles for the roof of the pole barn. Once again, the story told to Perry was corroborated by a police incident report taken on September 15, 1996, documenting the theft of building materials from a nearby construction site.

With regard to the stolen golf carts, Harp told Perry that in early January 1995, Senior asked Harp if he could borrow Harp's Chevy Suburban as well as if Harp wanted to go for a ride with him. Harp stated that he rode with Senior in a gray sedan to a restaurant located at the Oakpointe Country Club. Junior and another man arrived driving Harp's Suburban and towing Senior's horse trailer. Harp explained that both Junior and Senior had firearms and communicated through walkie-talkies. Harp told Perry that he assisted Senior, Junior, and the other man in loading two cream-colored golf carts into the horse trailer. One of the carts was off-loaded in Harp's barn, while the other was taken to the Fisher Road residence. The following day, Oakpointe Country Club reported that two carts were stolen the previous night. Harp also told Perry that there was an additional golf cart, which looked very similar, already at the Fisher Road residence prior to the January 1995 theft of the other two. Van Patten corroborated Harp's claim by providing Perry with a photograph of the decks he had built at the Fisher Road residence, in which a golf cart is visible in the background of the picture.

During a conversation with Perry on December 18, 1996, Van Patten also mentioned that during the month of May, his work at the Fisher Road residence included taking care of two horses. Van Patten stated that one morning when he went out to feed the livestock, he found two horses

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inside a stall. Van Patten explained that Senior told him that a woman called at 3 A.M. and said her barn burned down and asked Senior to care for her horses. On May 23, 1996, Ms. Jean Wainscott reported to the police that two of her horses were stolen from her residence. Van Patten had seen photos of the two horses from a friend who worked with Ms. Wainscott and identified them as the horses he took care of for a month on the Fisher Road residence.

Finally, during his conversation with Perry on December 10, 1996, Harp mentioned that in 1994 he had allowed Senior to store about two dozen residential windows in his barn. Harp stated that a month later Junior began transferring the windows from Harp's barn back to the Fisher Road residence. Van Patten informed Perry that during that time he was constructing a log home on the property and was installing the windows. Van Patten stated he would tell Senior the measurements of the windows he needed and Senior and Junior would drive off and return with the windows twenty minutes later. Senior told Van Patten that he and Junior were purchasing the windows at a store in town. Scott Van Patten, Harold's brother, informed Perry that Senior told him that "the windows were stolen and there was an insurance claim made on them." J.A. at 311 (Scott...

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