867 F.2d 259 (6th Cir. 1988), 88-3314, Criss v. City of Kent

• Docket Nº: 88-3314.
• Citation: 867 F.2d 259
• Party Name: Mark A. CRISS, Plaintiff-Appellant, v. The CITY OF KENT, et al.; Rick Haury, Officer, Kent City Police Department, Defendants-Appellees.
• Case Date: December 28, 1988
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 259

867 F.2d 259 (6th Cir. 1988)

Mark A. CRISS, Plaintiff-Appellant,

v.

The CITY OF KENT, et al.; Rick Haury, Officer, Kent City

Police Department, Defendants-Appellees.

No. 88-3314.

United States Court of Appeals, Sixth Circuit

December 28, 1988

Submitted Dec. 6, 1988.

Page 260

L. James Martin, Stow, Ohio, for plaintiff-appellant.

Mark B. Marein, Leo R. Ward & Associates, Cleveland, Ohio, for defendants-appellees.

Before KEITH, KENNEDY and MILBURN, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiff-appellant, Mark A. Criss, appeals from the decision of the District Court granting summary judgment for the defendants, The City of Kent, Ohio and Officer Rick Haury, in plaintiff's section 1983 suit and remanding plaintiff's pendent state law claims. Plaintiff asserts that the District Court erred, first, by restricting plaintiff's discovery pending resolution of the threshold immunity issue; second, by concluding that no material factual dispute concerning probable cause precludes summary judgment; and third, by failing to find further investigation to be a necessary element of probable cause. Because none of plaintiff's arguments are persuasive, we affirm the judgment of the District Court in all respects.

On January 22, 1987, while on routine patrol, Officer Rick Haury of the Kent Police Department observed through an open apartment window a City of Kent street sign located on a wall inside an apartment which later turned out to be occupied by plaintiff and his roommate. After securing a search warrant Patrolman Haury, accompanied by two other officers, returned to execute the warrant. Because no one was home at the time, the officers gained entry to the apartment with the assistance of a maintenance man.

Upon entry, the officers observed two City of Kent street signs on a wall in the living room of the apartment. Shortly after the officers began their search plaintiff entered and identified himself as a tenant of the apartment. One of the officers explained the purpose of their visit. The parties' versions of the facts differ at this point. One of the officers submitted an affidavit stating that the plaintiff then admitted he knew the signs were city property but that his roommate had taken them. Joint Appendix (hereinafter "JA") at 72. On the other hand plaintiff, via affidavit, has stated that he never knew the signs were stolen. JA at 18. The plaintiff, however, admits to telling Officer Haury, at

Page 261

the station, that "my roommate told me that his old roommates got drunk downtown at a bar and ripped [the signs] down."

The officers arrested plaintiff for the offense of receiving stolen property. See Ohio Rev.Code Ann. Sec. 2913.51(A) (Anderson 1987). The officers then took plaintiff to the City of Kent police station where he was charged with the misdemeanor version of the receipt of stolen property offense. See id., at Sec. 2913.51(B). Plaintiff secured his release approximately one hour later. The prosecutor later dismissed with prejudice the charge against plaintiff.

Plaintiff subsequently filed an action in the state court which defendants removed to the United States District Court for the Northern District of Ohio. In an unreported opinion, the District Court granted summary judgment for the defendants on all federal claims. The District Court found that the sole factual dispute (whether plaintiff had admitted he knew the signs were stolen) was immaterial to the determinative issue of whether probable cause existed for the arrest. The court concluded as a matter of law that defendants were entitled to judgment.

The standard of review on appeal from the grant of a motion for summary judgment is the same as that utilized by the District Court--whether examining the evidence and all reasonable inferences therefrom in a light most favorable to the party opposing the motion, a genuine issue of material fact existed in the record below. Hand v. Central Transport, Inc., 779 F.2d 8, 10 (6th Cir.1985). No issue is presented for trial and judgment should accordingly be entered in favor of the moving party as a matter of law, unless "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The threshold inquiry performed by the district court after ruling on a motion for summary judgment is whether there should be a trial: "[W]hether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id., 477 U.S. at 250, 106 S.Ct. at 2511.

A. Propriety of Protective Order

"[I]t is well established that the scope of discovery is within the sound discretion of the trial court." Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981). An appellate court will not reverse a trial court's ruling denying discovery unless its action was clearly an abuse of discretion. Id. Plaintiff argues that the District Court abused its discretion when, pending resolution of the defendants' motion for summary judgment, it refused plaintiff's request to depose the Kent Police Chief and Officer Haury. This action, claims plaintiff, prevented him from properly responding to the motion and precluded his acquisition of facts relevant to the issue of probable cause and qualified immunity. We disagree.

The Supreme Court has clearly stated that discovery in litigation against government officials should be halted until the threshold question of immunity is resolved. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The desire to preclude excessive discovery against the government and resolve "insubstantial" claims on summary judgment also extends to issues that would be dispositive of the qualified immunity issue. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987).

The probable cause issue to be resolved by the District Court on the summary judgment motion in this case disposed of the qualified immunity question. If the investigating officers had probable cause to arrest plaintiff, then no constitutional violation occurred and the court would never reach the qualified immunity question. The District...