Webb v. United States

Citation789 F.3d 647
Decision Date17 June 2015
Docket Number14–3444.,Nos. 14–3443,s. 14–3443
PartiesJoshawa WEBB (14–3443); Herman Price (14–3444), Plaintiffs–Appellants, v. UNITED STATES of America, et al., Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED:Jon Loevy, Loevy & Loevy, Chicago, Illinois, for Appellants. Daniel T. Downey, Fishel Hass Kim Albrecht LLP, Columbus, Ohio, for Richland County Appellees. Thomas G. Roth, Belle Meade, New Jersey, for Appellee Lucas. Lowell V. Sturgill Jr, United States Department of Justice, Washington, D.C., for Federal Appellees. ON BRIEF:Jon Loevy, Debra Loevy–Reyes, Loevy & Loevy, Chicago, Illinois, for Appellants. Daniel T. Downey, Paul M. Bernhart, Fishel Hass Kim Albrecht LLP, Columbus, Ohio, for Richland County Appellees. Thomas G. Roth, Belle Meade, New Jersey, Joel J. Kirkpatrick, Plymouth, Michigan, for Appellee Lucas. Lowell V. Sturgill Jr, United States Department of Justice, Washington, D.C., for Federal Appellees. Michael M. Heimlich, Delaware, Ohio, for Appellee Metcalf. Jennifer M. Meyer, City of Cleveland, Cleveland, Ohio, for Appellee Ansari.

Before: BOGGS, SILER, and CLAY, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

PlaintiffsAppellants Joshawa Webb and Herman Price (a.k.a. Ronald Davis) appeal the district court's grants of summary judgment and dismissals of their claims in their civil-rights actions against DefendantsAppellees Drug Enforcement Agency (DEA) officers Lee Lucas, Robert Cross, Thomas Verhiley, and Jamaal Ansari; Richland County Sheriff's Office (RCSO) officers Chuck Metcalf, Matt Mayer, and Larry Faith; and the United States. The Plaintiffs argue that the district court erroneously held that: (1) Price lacked standing to sue; (2) qualified immunity shielded each of the law-enforcement Defendants from the Plaintiffs' Bivens and § 1983 claims for malicious prosecution, false arrest, fabrication of evidence, and conspiracy to deprive civil rights; and (3) the Plaintiffs' state-law tort claims against the individual Defendants and Federal Tort Claims Act (FTCA) claims against the United States must be dismissed.

For reasons set forth below, we reverse the district court's decision that Price lacked standing. We also reverse the grants of summary judgment to: Lucas and Metcalf with respect to Webb's malicious-prosecution claim; Lucas, Metcalf, and Faith with respect to Price's malicious-prosecution claim; Lucas with respect to Webb's false-arrest claim; Lucas, Metcalf, and Cross with respect to Webb's fabrication-of-evidence claim; Lucas, Metcalf, and Faith with respect to Price's fabrication-of-evidence claim; Lucas, Metcalf, and Cross with respect to Webb's federal conspiracy claims; and Lucas, Metcalf, and Faith with respect to Price's federal conspiracy claims. Price's false-arrest and trespass claims under the FTCA are time barred. We reverse and remand the Plaintiffs' state-law and remaining FTCA claims and affirm the remaining dismissals and grants of summary judgment.

I. Background
A. Operation Turnaround

Webb and Price were separately arrested and charged as part of “Operation Turnaround,” a “corrupted investigation into the Mansfield, Ohio, drug trade.” Robertson v. Lucas, 753 F.3d 606, 610 (6th Cir.2014) ; see also Brown v. United States, 545 Fed.Appx. 435 (6th Cir.2013) ; Mott v. Mayer, 524 Fed.Appx. 179 (6th Cir.2013). The RCSO launched Operation Turnaround after discovering the body of Timothy Harris in Richland County, Ohio on December 31, 2004. Webb v. Lucas, No. 1:07–cv–3290, 2013 WL 1303776, at *2 (N.D.Ohio Mar. 28, 2013). His death was believed to be drug related. Ibid. The RCSO recruited Jerrel Bray as a confidential informant to make undercover buys of illegal drugs from suspected drug traffickers in Mansfield.Ibid. In August 2005, DEA Agents Lucas and Cross joined the investigation at RCSO's request and registered Bray as a DEA informant. They were assisted by DEA Task Force Officers Ansari and Verhiley. Bray's first controlled buy as a DEA informant occurred on September 6, 2005.

Each controlled buy was supposed to proceed as follows. Bray and the RCSO officers would identify a target and inform the DEA agents, who would supply the buy money and travel from Cleveland to assist. Bray would place a phone call to the target. Investigators would search Bray and his vehicle before the buy and follow Bray to the location of the buy, attempting to view or record the transaction when possible. After the buy, they would follow Bray back to the sheriff's office, search Bray's person and vehicle, and take a statement from Bray.

Mott, 524 Fed.Appx. at 181.

On the basis of Bray's controlled buys, law-enforcement officials arrested and charged over two dozen individuals with violating federal criminal drug laws. Webb and Price were among these individuals. Lucas was the case agent who testified before the grand jury that indicted Webb and Price. Following the completion of Operation Turnaround, Bray, while he was in jail for killing a man in an unrelated Cleveland drug deal, disclosed that Lucas conspired with him to frame innocent individuals—including Webb and Price.

This admission prompted the Office of Inspector General (OIG) of the United States Department of Justice to launch an investigation, which revealed that numerous Operation Turnaround targets—including Webb and Price—did not participate in the drug deals for which they were charged. Bray had used stand-ins to participate in the drug deals and then falsely identified each stand-in as an Operation Turnaround target. Robertson, 753 F.3d at 612. Bray later testified that Lucas did not conspire with him to frame targets and that he acted on his own initiative. In any event, the OIG concluded that law-enforcement officials supported Bray's false identifications by knowingly making false reports and testimony and by covering up his misdeeds.

For example, a stand-in was used to frame ... Dwayne Nabors. Metcalf has admitted that he lied during Nabors's criminal trial, including admitting to a false identification of Nabors. Ansari also falsely identified Nabors in the alleged drug transaction. Lucas and Metcalf lied to the prosecutor about whether there was video taken of the transaction, although Metcalf himself had operated the video camera.
Bray used the controlled buys to steal money and drugs. [Law-enforcement officers] were aware of this fact yet continued to use Bray as an informant. On one occasion, Verhiley and Ansari caught Bray stealing money given to him for a drug buy. On another occasion, Bray accepted a Buick Cutlass (a car) in lieu of some of the money that was supposed to be paid as part of the drug deal. In effect, Bray was shorting the government the value of the car. Bray, however, was caught on [a] recording discussing the “Cutty.” When Bray was questioned about the conversation, he claimed it was a comment about a “Caddy” (Cadillac) that he had been interested in purchasing, but Lucas stepped in on Bray's behalf and asserted that “Cutty” was another term for drugs.
Efforts to corroborate Bray's information were stymied by Bray, and law enforcement disregarded accepted protocol. For example, the first step in a controlled buy was typically a controlled phone call to the target. Appellants produced evidence indicating that Bray dialed identical telephone numbers for unrelated suspects and lied about which suspects he was calling and that the official reports did not accurately reflect the phone conversations Bray had. Bray at times turned off his wireless transmitter during buys. Metcalf also admitted that “the manner in which the Webb deal was conducted violated DEA procedures” and “was not the way that a standard deal should go.”

Ibid. Bray pleaded guilty to two counts of perjury and five counts of violation of civil rights.1 The government dismissed the charges against all Operation Turnaround targets and prosecuted Metcalf and Lucas. Metcalf pleaded guilty to one count of violating Dwayne Nabors's civil rights by falsely testifying in his criminal trial. The United States charged Lucas with making false statements, violation of civil rights, obstruction of justice, and perjury. The jury found Lucas not guilty. Despite the verdict, a 2011 OIG investigation concluded that Lucas falsified reports and testimony to corroborate Bray's false identifications.

B. Targeting Webb

According to Lucas's DEA Report of Investigation (DEA–6 report), the Webb drug buy was set up in a recorded phone call between Bray and Webb on October 13, 2005. In the recorded call, titled DEA Exhibit N–17 (N–17 recording), the two spoke about selling cars. At one point, the call transcript shows that Webb said that he entered into an automobile transaction for $1000 “and the H.” In 2010, Webb clarified that “H” was a mis-transcription for “eighth,” which was a unit of measurement for drugs that he had sold to an unrelated party in the past. Law-enforcement officers did not recognize the error or its meaning at the time. The recorded conversation contained no other references to drugs. Towards the end of the call, Bray stated that he would have “a couple stacks tomorrow” for Webb. Lucas reported that ‘two stacks' tomorrow” was “code for $2000 to purchase crack.” Webb admits to having this conversation with Bray. However, he disputes that “a couple stacks” referred to drug-buy money and that the conversation took place on October 13. The DEA searched phone records but was unable to find evidence of a call between Webb and any phone number that was associated with Bray on October 13. Bray also denied that the call occurred on October 13 in an interview with OIG investigators.

At approximately 4:00 PM on October 14, 2005, Lucas, Cross, Metcalf, Mayer, and Verhiley accompanied Bray to a controlled drug buy at a Mansfield gas station with an individual Bray falsely identified as Webb. Lucas drove to the gas station where Bray awaited him in a car with tinted windows. The other officers...

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