Drogosch v. Metcalf

• Decision Date: 25 February 2009
• Docket Number: No. 08-1249.,08-1249.
• Citation: 557 F.3d 372
• Parties: Edward DROGOSCH, Plaintiff-Appellee, v. Timothy METCALF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

557 F.3d 372

Edward DROGOSCH, Plaintiff-Appellee, v. Timothy METCALF, Defendant-Appellant.

No. 08-1249.

United States Court of Appeals, Sixth Circuit.

Argued: December 11, 2008.

Decided and Filed: February 25, 2009.

ARGUED:

Kevin R. Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Ben M. Gonek, Law Office, Detroit, Michigan, for Appellee.

ON BRIEF:

Cori E. Barkman, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Ben M. Gonek, Law Office, Detroit, Michigan, for Appellee.

Before MARTIN and GILMAN, Circuit Judges; CARR, Chief District Judge.^*

OPINION

RONALD LEE GILMAN, Circuit Judge.

Timothy Metcalf, a parole agent with the Michigan Department of Corrections (MDOC), placed Edward Drogosch under arrest based on the mistaken belief that Drogosch had violated the terms of his probation. Because Metcalf did not have the proper type of paperwork with him to place Drogosch in the custody of the Wayne County Jail as a probation violator, Metcalf decided to lodge Drogosch in the jail using a type of form that identified him as a parole violator—a class of prisoners that Metcalf knew would not be entitled to a prompt probable-cause hearing before a judge. As a result, Drogosch lingered in jail for 13 days before being released.

Drogosch subsequently sued Agent Metcalf and several other defendants pursuant to 42 U.S.C. § 1983, claiming that his constitutional rights were violated by the defendants' unlawful search and arrest, as well their failure to present him to a judge promptly following the arrest. Metcalf now appeals the district court's denial of his motion for summary judgment that he had sought on the basis of qualified immunity. For the reasons set forth below, we AFFIRM the judgment of the district court.

II. BACKGROUND

A. Factual background

1. Drogosch's probation

Drogosch had his first contact with the criminal justice system in 2003, when he was charged in state court with three counts of third-degree criminal sexual conduct. He was then 44 years old. Drogosch entered into a plea agreement to resolve the case. Under the terms of that agreement, he pled guilty to a single charge of second-degree criminal sexual conduct. The rest of the charges against him were then dropped. An additional condition of the agreement provided that Drogosch's guilty plea was to be taken under advisement, so that the case would be dismissed in its entirety if he successfully completed one year of probation.

Between the judge's acceptance of the plea and the scheduled sentencing hearing, Drogosch met with John Lazarski, a probation officer with the MDOC. Lazarski prepared a Pre-Sentence Investigation Report that erroneously stated that the victim of Drogosch's offense was a minor child. The victim was in fact 46 years old at the time of the offense.

In May 2004, Drogosch was sentenced to one year of probation. The terms of the probation order required that he attend Alcoholics Anonymous at the discretion of his probation officer, who was Lazarski. Drogosch was not, however, required to refrain from drinking alcohol. Nor was he required to register as a sex offender. Because the plea was taken "under advisement," Drogosch was not technically convicted of any crime, and he was therefore not disqualified from owning a firearm.

2. Operation SPOTCHECK/Drogosch's arrest

The MDOC and the Wayne County Sheriff's Department set up a joint initiative in 2004 called Operation SPOTCHECK with the goal of reducing crime by randomly inspecting the homes of over 20,000 active parolees and probationers. In late October 2004, SPOTCHECK team members performed a series of unannounced checks on sex offenders. Officer Lazarski submitted Drogosch's name to his supervisor as a candidate for a home inspection as part of this sweep. As a result, SPOTCHECK team members were given a printout listing Drogosch as an individual to visit.

On October 29, 2004, Agent Metcalf, along with two other SPOTCHECK team members, arrived at Drogosch's home in Livonia, Michigan. The agents were under the impression, based on the printout that they had been given, that Drogosch's victim was between 13 and 15 years old at the time of the offense. Drogosch opened the door after one of the agents knocked. He had bloodshot eyes, slurred speech, poor dexterity, and a strong odor of alcohol on his breath.

The agents entered the home without any objection by Drogosch. Once inside, one of the agents accused Drogosch of drinking. He replied that he had consumed about five beers that evening. Drogosch then walked down the hall to let his wife know that the police were in their home. The agents followed behind him and noticed a computer in the den. They asked Drogosch's wife to turn it on. She complied, and one of the agents briefly checked the computer, presumably for pornography. The agent found nothing. Metcalf then asked Drogosch if there were any weapons in the house. Drogosch answered that he had an unloaded pistol in the bottom drawer of his dresser, Metcalf retrieved the gun from a case in the dresser, observing that it was in fact unloaded and had a trigger lock. The case also contained registration and safety-inspection forms for the pistol.

Drogosch attempted to explain the terms of his probation to the agents. He brought out two documents—his Order of Probation and Conditions of Probation— that listed all of the restrictions and requirements associated with his probation. The agents declined to look at the documents, simply stating "this doesn't mean anything." Drogosch's wife also attempted to explain that Drogosch was allowed to drink alcohol and own a gun under the terms of his probation, but to no avail.

Based on Drogosch's apparent intoxication and possession of a firearm, the agents concluded that he was in violation of his probation. They briefly debated among themselves whether they could take Drogosch's gun without taking him into custody, but ultimately decided that they must make an arrest. While Drogosch was being arrested, his wife repeated two or three times: "I'm sorry I befriended her." Agent Metcalf assumed that she was referring to the victim of Drogosch's offense.

The agents transported Drogosch to the Wayne County Jail. Jail policy required that an appropriate detainer form be submitted before the jail would house Drogosch. One of the agents filled out a SWIFT detainer form, which indicated on its face that Drogosch was a probationer. A SWIFT detainer is a mechanism used by the Wayne County Sheriff's Department to temporarily hold fugitives or absconders and detain them in jail until a more formal detainer is completed. But the desk attendant refused to accept Drogosch for incarceration under the SWIFT detainer form, instead insisting that Drogosch could be held only in connection with an MDOC-generated form. The MDOC, however, did not have a specific form for lodging probationers in jail, despite the SPOTCHECK operating procedures requiring that the arresting agent fill out any necessary detainers following a probationer's arrest.

Agent Metcalf finally decided to complete and submit a parole detainer form, the only form that he had available, in order to lodge Drogosch in the jail. Drogosch was not, and never had been, on parole. Metcalf knew this. Moreover, Metcalf was aware that a detained parolee, unlike a detained probationer, was not entitled to an immediate hearing before a judge. He nonetheless decided to submit a form that misrepresented Drogosch's status so as to ensure that Drogosch would be jailed. Metcalf testified that he did so because Drogosch appeared to be drunk and Metcalf was concerned that Drogosch would do something to harm either his wife or the crime victim if not incarcerated.

Drogosch's arrest took place on a Friday night. Agent Metcalf made an entry that night in Drogosch's electronic probation file on the MDOC computer system, noting that Drogosch had been arrested and lodged in the Wayne County Jail. But Metcalf waited until the following Monday, November 1, 2004, to call Lazarski, the probation officer, to inform him that Drogosch had been taken into custody. Lazarski apparently did not know at the time that Metcalf had used an inapplicable parole detainer form to lodge Drogosch in the jail. After the telephone conversation, Lazarski prepared an Order to Show Cause against Drogosch and sent it to the county court. He took no further action until November 9, 2004. In the meantime, Drogosch lingered in jail.

Agent Metcalf did not hear anything further regarding Drogosch until he received word from Officer Lazarski on November 10, 2004 that the judge on duty had ordered Drogosch released from jail. Lazarski told Metcalf, with some urgency in his voice, something along the lines of "Judge Edwards wanted him out and he wanted him out yesterday." Metcalf then called the jail to tell them to prepare Drogosch for release, and he obtained a "Parole Detainer Removal Form." But when Metcalf and Drogosch attempted to leave the jail, the staff at the jail refused to release Drogosch because he was listed as having a November 12 court date. Drogosch was finally released the next day, November 11, 2004, after a judge issued an order of discharge.

B. Procedural background

In April 2005, Drogosch filed a federal lawsuit pursuant to 42 U.S.C. § 1983 against Agent Metcalf, Officer Lazarski, the other arresting agents, Wayne County, and two other county officials. The district court eventually dismissed Drogosch's claims against all of the defendants except for Metcalf. It specifically found that the agents' arrest of Drogosch was valid because they reasonably believed that Drogosch was violating the conditions of his probation, and the court accordingly dismissed the unlawful search and arrest claims against Metcalf on the basis of qualified immunity. But the court denied summary judgment on the claim that Metcalf had failed to promptly bring Drogosch...