Canter v. Hardy

• Decision Date: 06 March 2002
• Docket Number: Nos. 97-CV-76290-DT, 97-CV-76291-DT.,s. 97-CV-76290-DT, 97-CV-76291-DT.
• Parties: Mark William CANTER and Walter Edwin Moore, Plaintiffs, v. John HARDY, Frederick LaBarge, Douglas Wilt, Kenneth Bur, Carl Goeman, Charles Rettstadt, Research North, Inc., and Debra Parmentier, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 773

188 F.Supp.2d 773

Mark William CANTER and Walter Edwin Moore, Plaintiffs, v. John HARDY, Frederick LaBarge, Douglas Wilt, Kenneth Bur, Carl Goeman, Charles Rettstadt, Research North, Inc., and Debra Parmentier, Defendants.

Nos. 97-CV-76290-DT, 97-CV-76291-DT.

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

March 6, 2002.

Ray J. MacNeil, Gaylord, MI, for Plaintiffs.

Christopher Johnson, Farmington Hills, MI, for Otsego County.

Gregory Thomas, Southfield, MI, for Rettstadt & Research.

Mark S. Meadows, Asst. Atty. Gen., Lansing, MI, for Goeman Hardy, LaBarge Wilt and Bur.

OPINION AND ORDER REGARDING STATE POLICE AND RESEARCH NORTH, INC. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

ROSEN, District Judge.

I. INTRODUCTION

The above-captioned Section 1983 action is presently before the Court on two Motions for Summary Judgment filed by Defendants John Hardy, Frederick LaBarge, Douglas Wilt, Kenneth Bur and Carl Goeman (the "State Police Defendants") and Defendants Charles Rettstadt and Research North, Inc. (the "Research North Defendants"). Plaintiffs have responded to Defendants' Motions to which Responses Defendants have replied. The Court has reviewed and considered the parties respective briefs and supporting documents, and having heard the oral arguments of counsel on November 30, 2001, the Court now issues this written Opinion and Order setting forth its ruling.

II. PROCEDURAL HISTORY

Plaintiffs William Moore and Mark Canter ("Plaintiffs") were separately tried and convicted of second degree murder in 1988 in Otsego County Circuit Court for the murder of oil field worker Jerry Tobias.¹ Both Moore and Canter appealed their convictions to the Michigan Court of Appeals. While their appeals were pending, at the request of Canter's counsel, the Michigan Attorney General commenced an investigation into Canter's conviction in December 1989. This investigation revealed extensive irregularities in the prosecution's handling of both Canter's and Moore's cases.

In light of the Attorney General's findings, both men sought new trials and the Court of Appeals ultimately remanded their cases to the trial court for evidentiary hearings on the allegations of prosecutorial irregularities and consideration of their new trial requests.

Following remand, the Otsego County prosecutor's office turned over to the defense for the first time thousands of pages of documents relating to the investigation of Jerry Tobias's murder. Many of these documents contained exculpatory information relating to Plaintiffs, notwithstanding the county prosecutor's testimony before the Otsego County Circuit Court in the remand/new trial proceedings that all such information had been disclosed prior to trial. In addition, one of the prosecution's key witnesses, Debra Parmentier, was charged in 1994 with eight counts of perjury for false statements she allegedly made during Plaintiffs' murder trials. Then, in February 1995, Parmentier gave a lengthy unsworn, tape-recorded statement to Canter's counsel indicating that her testimony implicating Plaintiffs had been false.

On January 16, 1996, the state trial court advised counsel that it would grant Plaintiffs' motions for a new trial, and on January 18, 1996, Plaintiffs were released from prison. They had served more than seven years in prison at the time of their release.

The county prosecutor thereafter decided to recharge Canter and Moore with murder, and filed new criminal charges against them on May 24, 1996. The trial court, however, ruled that Parmentier's previous testimony against Plaintiffs would not be admitted at their new trial. Consequently, the trial court dismissed the new charges against Plaintiffs for lack of probable cause.

Plaintiffs subsequently filed the instant civil rights actions in this Court on September 5, 1997, alleging various constitutional violations stemming from the state's prosecution of them for the murder of Jerry Tobias. In their separately-filed, but identical, 135-page, eleven-count Complaints, Moore and Canter named 13 individuals and entities as defendants: Norman Hayes, Prosecuting Attorney for Otsego County; Kevin Hesselink, former Assistant Otsego County Prosecuting Attorney and Hayes' successor as County Prosecutor; Dawn Schumacher, Assistant Otsego County Prosecuting Attorney; Jerry Boerema, investigator with the office of the Otsego County Prosecuting Attorney; Patricia Newhouse, Assistant Otsego County Medical Examiner; and Otsego County (collectively referred to herein as the "County Defendants"); Frederick LaBarge, a Michigan State Police Detective Sergeant; John Hardy, a Michigan State Police Detective Lieutenant; Douglas Wilt, a Michigan State Police Detective Sergeant; Kenneth Bur, a Michigan State Police Trooper; and Carl Goeman, a Michigan State Police Lieutenant (collectively the "State Police Defendants"); Charles Rettstadt, a private investigator and sole owner of Research North, Inc. (the "RNI Defendants"); and Brieanna Herrick, a/k/a Debra Parmentier.²

The County and State Police Defendants subsequently filed separate motions for summary judgment. These motions were referred to Magistrate Judge Komives for Report and Recommendation. On September 30, 1999, this Court issued an Opinion and Order adopting the Magistrate Judge's comprehensive R & R with certain modifications, the substance of which was affirmed by the Sixth Circuit Court of Appeals. See Canter v. County of Otsego, et al., 14 Fed.Appx. 518, 2001 WL 814937 (6th Cir.2001) (unpublished decision; text available on WESTLAW). This resulted in the dismissal of a number of Plaintiffs' claims. Then, on November 2, 2001, a settlement was entered into between the Plaintiffs and the County Defendants and on November 7, 2001, all claims against the County Defendants were dismissed.

Consequently, only Plaintiffs' Section 1983 claims for malicious prosecution against State Police Defendants Hardy and LaBarge in Count I and against Defendant Goeman in Count II; their claim of denial of fair trial/due process based on subornation or perjury, intimidation of witnesses and destruction of evidence in Count VI against all of the State Police Defendants; and their Section 1983 conspiracy claim against the State Police Defendants, the RNI Defendants, and Debra Parmentier in Count VIII remain for adjudication.

Discovery has now closed and the State Police Defendants and the RNI Defendants now seek entry of summary judgment in their favor on Plaintiffs' claims against them in this action. Specifically, the State Police Defendants renew their previously filed motion for summary judgment favor contending that Plaintiffs are unable to make a factual showing sufficient to establish the constitutional violations they complain of against them. The RNI Defendants contend that they are not "state actors" and therefore cannot be held liable to Plaintiffs under Section 1983. They further argue that there is no evidence supporting Plaintiffs' theory that they conspired with others to deprive Plaintiffs of their constitutional rights.

III. FACTUAL BACKGROUND

As indicated, these consolidated cases arise from the prosecution of Plaintiffs Mark Canter and Walter ("Terry") Moore for the December 1986 murder of Jerry Tobias in Otsego County, Michigan. Plaintiffs' suit against the State Police Defendants is predicated upon the involvement of these defendants in the murder investigation and subsequent prosecution of Canter and Moore.

On December 8, 1986, the body of Jerry Tobias, an oil field worker, was discovered in the City of Gaylord, in the bed of his pickup truck. At the time his frozen body was discovered, Tobias's hands were tied with jumper cables, his shirt was torn and bloodstained, and there was blood over the right temple, behind the right ear, on the top of the head, and over the left ear. See People v. (Laurie) Moore, 189 Mich.App. 315, 316, 472 N.W.2d 1, 2 (1991) (per curiam). An autopsy was performed on the following day, and the date of death was fixed as December 5, 1986. See Compl., ¶ 21.

In early January of 1987, Defendant Debra Parmentier told her husband, Leonard Parmentier, and Bernard J. Casper, an attorney, that she had witnessed the Tobias murder. She indicated that Tobias had been stabbed. Casper related this information to Otsego County Prosecutor Norman Hayes, and Leonard passed on the information to Jerry Boerema, an investigator attached to the Otsego County Prosecutor's office. See Att. # 68; # 126, at 151; # 178, at 72; # 180.³ On March 2, 1987, based on Parmentier's information and further investigation, Laurie Moore, brother of Plaintiff Walter Moore, was arrested and charged with the Tobias murder. Then, in early June, Debra Parmentier was interviewed by Boerema at a hotel in Gaylord. At that time, Parmentier indicated that two others (beside Laurie Moore) were involved in the Tobias murder. Boerema's notes indicate that Parmentier also made a number of allegations of criminal conduct (drug and weapons trafficking) on the part of Canter and Moore and others. See Att. # 48; # 126, at 156-62. Boerema characterized Parmentier's allegations as incredible, and delivered copies of his notes to the Defendants John Hardy and Frederick LaBarge and discussed their contents with these two State Police detectives and Prosecutor Hayes. See Att. # 126, at 153, 159-60.

At around the same time, Parmentier was interviewed by Agent Val Goddard of the Bureau of Alcohol, Tobacco, and Firearms, concerning allegations she had made about theft of weapons from military bases and weapons trafficking. See Att. # 153. Parmentier was interviewed by Thomas Soreno, a Northern Michigan radio talk show host. Soreno later testified that he turned the tape of this interview over to Boerema. See Att. #89, at 13, 17-18. According to Plaintiffs, the report of Agent Goddard, Boerema's interview notes and Soreno's interview tape were not disclosed to Plaintiffs until after their...