Gillispie v. Miami Township, Ohio

• Citation: 18 F.4th 909
• Decision Date: 30 November 2021
• Docket Number: No. 20-4119,20-4119
• Parties: Roger Dean GILLISPIE, Plaintiff-Appellee, v. MIAMI TOWNSHIP, OHIO, Defendant, Matthew Scott Moore, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

18 F.4th 909

Roger Dean GILLISPIE, Plaintiff-Appellee,

v. MIAMI TOWNSHIP, OHIO, Defendant,Matthew Scott Moore, Defendant-Appellant.

No. 20-4119

United States Court of Appeals, Sixth Circuit.

Argued: July 29, 2021

Decided and Filed: November 30, 2021

ARGUED: Frank H. Scialdone, MAZANEC, RASKIN AND RYDER, CO., L.P.A., Cleveland, Ohio, for Appellant. David B. Owens, LOEVY & LOEVY, Chicago, Illinois, for Appellee. ON BRIEF: Frank H. Scialdone, Todd M. Raskin, Cara M. Wright, MAZANEC, RASKIN AND RYDER, CO., L.P.A., Cleveland, Ohio, for Appellant. David B. Owens, LOEVY & LOEVY, Chicago, Illinois, for Appellee.

Before: GIBBONS, STRANCH, and BUSH, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which GIBBONS, J., joined and BUSH, J., joined in part. BUSH, J. (pp. 919–22), delivered a separate opinion concurring in part and dissenting in part.

JANE B. STRANCH, Circuit Judge.

Roger Dean Gillispie was convicted of two rapes and spent over 20 years in prison before the Ohio courts vacated his convictions, finding meritorious his claims of failure to disclose exculpatory evidence and actual innocence. Gillispie now brings five § 1983 claims against Matthew Scott Moore, the police officer responsible for much of the investigation and the identification of Gillispie as the likely perpetrator. Gillispie alleges that Moore suppressed exculpatory evidence, arranged an unduly suggestive eyewitness identification procedure, fabricated inculpatory evidence, assisted in maliciously prosecuting him, and destroyed exculpatory evidence. Moore claims entitlement to qualified immunity on each count. In an exhaustive and well-reasoned order, the district court determined that each of Gillispie's claims should proceed to trial. Moore appeals. Because Moore fails to abide by the basic, mandatory jurisdictional requirements governing appeals from denials of qualified immunity, we DISMISS the case for lack of jurisdiction.

I. BACKGROUND

Following the district court, we do not "trudge through all" the "extensive" history of this case. Gillispie v. City of Miami Twp. , No. 3:13-CV-416, 2020 WL 5629677, at *1 (S.D. Ohio Sept. 21, 2020) (" Dist. Ct. Order"). We instead draw on the district court's careful chronology, noting that the state courts’ previous decisions offer additional detail. See, e.g. , State v. Gillispie , 65 N.E.3d 791, 793–800 (Ohio Ct. App. 2016). Because the district court correctly applied the standard for summary judgment, as discussed below, we adopt the district court's recitation of the facts, see Adams v. Blount Cnty. , 946 F.3d 940, 948 (6th Cir. 2020), including casting them in the light most favorable to Gillispie, see Jackson v. City of Cleveland , 925 F.3d 793, 803 (6th Cir. 2019), cert. denied sub nom. City of Cleveland v. Jackson , ––– U.S. ––––, 140 S. Ct. 855, 205 L.Ed.2d 460 (2020).

In 1988, twin sisters were abducted and sexually assaulted in Miami Township, Ohio. Dist. Ct. Order, 2020 WL 5629677, at *1. A third woman was similarly assaulted outside the Township's jurisdiction.¹ Id. Township Detective Sergeant Steven Fritz assigned Detective Gary Bailey to investigate the crimes. Id. at *2. Bailey interviewed the victims, who created composite images of the person who had assaulted them; one victim also saw and provided Bailey with the perpetrator's pants size. Id. Bailey compiled this information in a report that supplemented his main, handwritten report on the investigation's progress. Id.

At the time, Gillispie worked as a security officer at General Motors (GM). Id. "There was tension and animosity between Gillispie and his superiors"—in particular, Defendant Richard Wolfe. Id. Wolfe had previously worked for and volunteered with the Township's police department, and his father had been the chief. Id. In 1989, a GM employee told his then supervisor, Wolfe, that one of his subordinates thought a composite of the suspect resembled Gillispie. Id. Wolfe contacted the department and met with Fritz, Police Chief Bailey, and a captain, bringing along Gillispie's employee photo. Id. He "suggested that Gillispie become a suspect," but "Bailey and Fritz were skeptical, thinking that Wolfe might be being vindictive." Id. Nevertheless, the Chief ordered Bailey and Fritz to investigate Gillispie. Id.

Following their investigation, Bailey and Fritz ruled out Gillispie as a suspect and explained that decision in written supplemental reports. The district court found that:

Some of the reasons why Bailey and Fritz eliminated Gillispie as a suspect included: (1) Gillispie was too large to have the pants size of the perpetrator that [the victims] had indicated; (2) Gillispie's lack of any criminal history, while the perpetrator's crimes were brazen—suggesting an extensive criminal history; (3) the perpetrator, who told the victims his name was "Roger," most likely would not have provided his real name; (4) Wolfe's (and other GM employees’) apparent animosity toward Gillispie; (5) in their opinion, the picture of Gillispie that Wolfe brought did not match the composite; and (6) the long delay between when the police department had shared the composite of the perpetrator with GM and when Wolfe had suggested Gillispie as a suspect. However, Bailey and Fritz cannot recall all of the reasons why they eliminated Gillispie as a suspect. There were more reasons and details provided in the supplemental reports that they wrote.

Id. Wolfe kept asking Fritz "whether the Township police department was going to do anything about Gillispie," and Fritz kept telling him that "Gillispie was not considered a good suspect." Id. at *3. Still, "Wolfe showed up at the police department claiming that he had additional information and providing an envelope with photos in it, which were given to Fritz." Id.

By June 1990, Bailey and Fritz had stopped working on the case; Bailey was reassigned, and Fritz left the department. Id. Before Fritz's departure, he told the Chief and a captain:

Defendant Moore would be the best one to assign to the ... investigation, so long as Moore had supervision. Fritz believed that Moore was tenacious and had the qualities of being a good investigator. However, at the time, Moore was relatively new to the force, and Fritz believed that Moore could be overzealous and had a tendency to go "rogue," sometimes continuing to pursue cases even when he lacked evidence.

Id.

Moore was assigned to the case and "received all of the supplemental reports that pre-dated his involvement in the investigation, including the supplemental reports detailing the first meeting with Wolfe and the elimination of Gillispie as a suspect (and the reasoning for doing so)." Id. Moore's ex-wife later testified that "the supplemental report concerning the previous elimination of Gillispie as a suspect frustrated and angered Moore." Id. Moore chose to write his own replacement "supplemental reports that do not reference Wolfe's initial meeting at the Township's police department or the circumstances concerning the elimination of Gillispie as a suspect," and instead identified Gillispie as a key suspect. Id. at *3–4. These reports were electronic as opposed to handwritten, Moore could edit them later, and he was not required to give the reports to supervisors until the investigation was closed. Id. at *4.

Moore proceeded to create photo lineups, asking the victims to identify the perpetrator. The district court described those lineups as follows:

The photo lineups consisted of six photographs, one being of Gillispie. The photograph of Gillispie was from a GM identification badge. Moore did not know how old the picture was, but the identification badge indicated that it was issued on January 27, 1989. Moore made at least three different photo lineups; he placed the photo of Gillispie in a different location for each of the three victims’ lineup procedure. He did not contemporaneously make a copy of the photo lineups that he showed to the victims, despite the "PHOTOGRAPHIC IDENTIFICATION GENERAL GUIDELINES" used by Moore and the Township's police department stating: "ALSO RUN A COPY OF THE PHOTO SPREAD USED!"

Moore told each of the victims, before conducting the lineups, that he had a possible suspect for the crimes. C.W. conducted a lineup procedure with Moore first. The next day, when B.W. conducted a lineup procedure with Moore, C.W. came with her and waited in the lobby of the police department. Moore's report states that he had told C.W. not to speak with her sister about the lineup. After B.W.’s lineup, Moore informed the sisters that they had picked out the same suspect, that the suspect used to be a security guard at GM but was fired, that the suspect's name was Roger Gillispie, and that Roger Gillispie was the suspect that he (Moore) thought might be the one who committed the crimes. (Again, the perpetrator had told the victims that he was with security for the Best Products store and that his name was "Roger.") After S.C.’s lineup, Moore told S.C. that she had identified the person that he believed was the perpetrator.

The picture of Gillispie used in the lineups appears to be different from the pictures of the five men used as fillers in the lineups. For example, Gillispie's face appears to be wider than the faces of the fillers in the lineup photos. (Testimony from the victims described the perpetrator as having a wide face.) His face is closer and larger than the faces of the others. Unlike the fillers, Gillispie's photo had been changed from its original size by the Montgomery Valley Regional Crime Lab, at Moore's request. Also, Gillispie's photo had a different finish than the other photos in the lineups. Moore admitted that there was a difference in quality between Gillispie's photo and the photos of the fillers, and that Gillispie's photo seemed to be "slightly duller." Additionally, two of the filler photos used were of Township officers.

Id. at *4–5 (citation omitted). Three such lineups were ultimately introduced at trial,...