Balsa U.S.A., Inc. v. Austin

• Decision Date: 16 July 1999
• Docket Number: No. 2:97-CV-152.,2:97-CV-152.
• Citation: 60 F.Supp.2d 723
• Parties: BALSA U.S.A., INC., Plaintiff, v. Elaine P. AUSTIN, Charles J. Lorish, and Eva Hatt, Defendants.
• Court: U.S. District Court — Western District of Michigan

Page 723

60 F.Supp.2d 723

BALSA U.S.A., INC., Plaintiff, v. Elaine P. AUSTIN, Charles J. Lorish, and Eva Hatt, Defendants.

No. 2:97-CV-152.

United States District Court, W.D. Michigan, Northern Division.

July 16, 1999.

Jonathan P. Barstow, PC, Menominee, MI, for Balsa USA Inc.

Margaret A. Nelson, Asst. Atty. General, Jennifer M. Granholm, Attorney General, Tort Defense Division, Lansing, MI, for Elaine P. Austin Charles J. Lorish, Eva Hatt.

Jonathan P. Barstow, PC, Menominee, MI, for Ron Busch.

OPINION

ROBERT HOLMES BELL, District Judge.

In this action Plaintiff Balsa U.S.A., Inc., alleges constitutional violations and malicious prosecution arising out of the investigation of safety violations at the Plaintiff's business. This matter is currently before the Court on Plaintiff's motion for partial summary judgment on the issue of liability and on Defendants' motion for summary judgment.

I.

Plaintiff Balsa U.S.A., Inc., is a Wisconsin corporation that manufactures wooden model airplanes. Balsa operates a manufacturing plant in Menominee, Michigan.

Defendants Elaine P. Austin, Charles J. Lorish and Eva Hatt are employees of the Michigan Occupational Safety and Health Administration ("MIOSHA"). At the time of the conduct alleged in the complaint, Defendant Hatt was an assistant chief at the Bureau of Safety and Regulation, General Industry Services Division of MIOSHA. Defendant Lorish was a regional supervisor, and Defendant Austin was a safety officer.

In January 1994, the Federal OSHA office in Wisconsin received an anonymous letter complaining of various violations of OSHA standards at Plaintiff Balsa. Because the plant was a Michigan facility, the complaint was forwarded to MIOSHA. The complaint was reviewed by Defendant Hatt. Although the letter did not so state, Defendant Hatt concluded that the letter was from an employee.¹ Defendant Hatt forwarded a complaint form, but not the original letter, to Defendant Austin for commencement of an investigation.

On February 15, 1994, Defendant Austin went to the Balsa plant to conduct an inspection/investigation. Defendant Austin was permitted entry into the plant on February 15, but she received little cooperation from Balsa's president, Ron Busch. When Defendant Austin returned to the plant the following day, Mr. Busch refused to allow her to complete the investigation.

When Defendant Austin reported to Defendant Hatt about the violations she observed and her inability to complete the investigation, Defendant Hatt determined that an administrative search warrant should be obtained. Defendant Hatt prepared the Affidavit and sent it to Defendant Austin's supervisor, Defendant Lorish. On March 21, 1994, Defendants Austin and Lorish, applied for an administrative warrant. The affidavit in support of search warrant, signed by Defendants Austin and Lorish states "On February 14, 1994 Department of Labor received a complaint from an employee or an employee representative of the above described place of employment."

On March 22, 1994, Defendant Austin returned to Balsa with the administrative warrant signed by Menominee County District Court Magistrate Chris Bradley. The premises were searched, and Defendant Austin recorded a number of safety violations. As a result of this investigation, the Department of Labor assessed penalties against Balsa. Balsa filed an administrative appeal, which ultimately resulted in the elimination of all penalties.

Plaintiff filed this action in the Menominee County Circuit Court, alleging that Defendants violated Plaintiff's Fourth, Fifth and Fourteenth Amendment rights and engaged in a malicious prosecution by searching Plaintiff's premises pursuant to an invalid search warrant. Defendants removed the action to this court on the basis of federal question jurisdiction.

II.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the moving party carries its burden of showing there is an absence of evidence to support a claim then the non-moving party must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The proper inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

III.

In their motion for summary judgment Defendants have raised the defense that Plaintiff's federal claims are barred by the doctrine of qualified immunity.

"Under the doctrine of qualified immunity, government officials acting in their official capacities are protected from being sued in their individual capacities for damages if their actions did not `violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Greene v. Reeves, 80 F.3d 1101, 1104 (6th Cir.1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Whether qualified immunity is applicable to an official's action is a question of law. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.1996). In analyzing qualified immunity, "the first step is to determine whether plaintiff has shown a violation of a constitutionally protected right. If the answer is yes, then the second step is to determine whether the right is so `clearly established' that a `reasonable official would understand that what he is doing violates that right.'" Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir.1996).

In this case the constitutional right that Plaintiff contends Defendants violated is the Fourth Amendment right to be free from unreasonable searches and seizures.²

Plaintiff's Fourth Amendment claim rests upon one factual allegation: that the affidavit submitted in support of the search warrant falsely stated that the Department of Labor received a complaint from "an employee or employee representative."³ Based upon this single factual assertion, Plaintiff argues that probable cause did not exist for the search warrant; and Defendants did not have the authority to commence an investigation or to seek a search warrant.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a warrant may be invalidated to the extent probable cause for issuance of the warrant was based upon intentionally or recklessly misrepresented facts in a search warrant affidavit. Id. at 155, 98 S.Ct. 2674. Although Franks was concerned with suppression of evidence in a criminal case, Franks has a civil application as well. "An action under § 1983 does lie against an officer who obtains an invalid search warrant by making, in his affidavit, material false statements either knowingly or in reckless disregard for the truth." Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989). See also Hartzler v. Licking County Humane Soc., 740 F.Supp. 470, 474 (S.D.Ohio 1990) ("A law officer who obtains an invalid search warrant by making material false statements in the warrant affidavit, either knowingly or in reckless disregard for the truth, is liable under 42 U.S.C. § 1983.").

Thus, in order to establish its § 1983 claim for damages caused by misrepresentation of facts in a warrant affidavit, the plaintiff must make a substantial preliminary showing that the false statements in the warrant affidavit were made in knowing or reckless disregard of the truth.⁴ Perlman v. City of Chicago, 801 F.2d 262, 265 (7th Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1349, 94 L.Ed.2d 520 (1987). The plaintiff must also show that the statements were material and that the untainted evidence in the affidavit was insufficient to support probable cause. Hartzler, 740 F.Supp. at 474.

In this case there is no evidence to support Plaintiff's allegation that Defendants Austin and Lorish signed the affidavit knowing it was false or in reckless disregard of the truth. At the time they signed the affidavit for search warrant, the only information in Austin and Lorish's possession indicated that the complaint was from an employee. They had not seen the original letter or even a copy of it. They had not been told that the letter was anonymous. They had only received the complaint form with the relevant allegations of safety violations. According to the practices and procedures of the MIOSHA, the complaint form is only used for complaints filed by an employee or employee representative. The affidavit prepared by Defendant Hatt for Defendants Austin and Lorish's signature indicated that the complaint came from an employee or employee representative. Moreover, the conditions Austin witnessed during her first visit to the Balsa plant were consistent with the allegations in the complaint and were consistent with the kinds of violations that an employee might have witnessed and reported to MIOSHA. Based upon the undisputed evidence of record, no jury could reasonably find that Defendants Austin and Lorish signed the warrant in knowing or reckless disregard for the truth.

Neither is there evidence sufficient to show that Defendant Hatt violated the Michigan Penal Code by inciting or procuring Defendants Austin and Lorish to commit perjury.⁵ The...