Moldowan v. City of Warren

Decision Date18 August 2009
Docket NumberNo. 07-2117.,No. 07-2115.,No. 07-2116.,07-2115.,07-2116.,07-2117.
Citation578 F.3d 351
PartiesJeffrey Michael MOLDOWAN, Plaintiff-Appellee, v. CITY OF WARREN, Donald Ingles, Michael Schultz (07-2115); Alan Warnick (07-2116); Maureen Fournier (07-2117), Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Appellants. Marc M. Susselman, Dennis A. Dettmer, Detroit, Michigan, for Appellee.

Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. KETHLEDGE, J. (pp. 401-07), delivered a separate opinion concurring in the judgment in part and dissenting in part.


CLAY, Circuit Judge.

In this action, Plaintiff Jeffrey Moldowan ("Moldowan") asserts a number of claims under 42 U.S.C. § 1983 alleging violations of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments, as well as claims under Michigan state law. Moldowan's claims arise out of his arrest, criminal prosecution, conviction, and retrial for the 1990 abduction and brutal sexual assault of Maureen Fournier ("Fournier"). After new evidence came to light and a key prosecution witness recanted her testimony, the Michigan Supreme Court reversed Moldowan's conviction in 2002. People v. Moldowan, 466 Mich. 862, 643 N.W.2d 570 (2002). On retrial, in February 2003, Moldowan was acquitted of all charges and released, having served nearly twelve years in prison.

After his release, Moldowan filed the instant civil action asserting various claims against the City of Warren, the Warren Police Department, Macomb County, the Macomb County Prosecutor in his official capacity, Dr. Alan Warnick, Warren Police Detective Donald Ingles, Warren Police Officer Mark Christian, and Fournier. Moldowan subsequently amended his complaint to assert claims against Warren Police Officer Michael Schultz. Broadly speaking, Moldowan alleges that the Defendants — both acting separately and conspiring together — violated his civil rights by fabricating evidence against him, failing to disclose exculpatory evidence, and pursuing his prosecution and retrial without probable cause.

After discovery, the Defendants moved for summary judgment on all thirty-six counts asserted in Moldowan's Third Amended Complaint raising various immunity defenses. After dismissing certain counts against Detective Ingles, the City of Warren, and the Warren Police Department, and dismissing all counts against Officer Christian, the district court denied Defendants' motions for summary judgment in all other respects. These three interlocutory appeals followed. For the reasons set forth herein, we AFFIRM IN PART and REVERSE IN PART the judgment of the district court.


Moldowan's Third Amended Complaint asserts thirty-six claims against nine county, municipal, and individual defendants. All claims arise out of Moldowan's arrest, criminal prosecution, conviction, and retrial for the abduction and assault of Maureen Fournier.

A. Factual Background

On the morning of August 9, 1990, Emergency Medical Service ("EMS") found Fournier badly injured and lying in the street in the City of Detroit. EMS transported Fournier to St. John's Hospital. The medical forms completed on her admission to the hospital, as well as subsequent medical reports and testimony from her doctors, bear witness to the extreme brutality of the crime. The police determined that Fournier had been abducted from the City of Warren, brutally assaulted and raped, and left on a street in Detroit.

Because Fournier had been abducted from Warren, the matter was turned over to the Warren Police Department ("Department"), and the case was assigned to Detective Ingles. Given the extent of Fournier's injuries, officers had to wait two days before they could interview her regarding the attack. Even then, the extent of Fournier's injuries forced Detective Ingles to write questions on a board, and Fournier responded in kind.1 During the interview, Fournier reported that she had been abducted from Warren on the night of August 8, 1990 by four Caucasian males, all of whom she knew. Fournier stated that, while she was walking down the street, she was approached by Moldowan, who was her ex-boyfriend, thrown into a white or light-colored van, and brutally beaten and raped by three of the four assailants. Fournier identified her attackers as Michael Cristini, Jim Cristini, Tracy Tapp ("Tapp"), and Moldowan. Fournier's sister, Colleen Corcoran ("Corcoran"), confirmed Fournier's claims that Moldowan previously had assaulted and threatened Fournier.

After completing their investigation, the police arrested and charged all four individuals. The police subsequently dropped the charges against Tapp based on his alibi that he had been in Texas for several days prior to the assault, had not returned to the Michigan until the evening of August 8, and spent the rest of the night with his girlfriend. Tapp's girlfriend confirmed his alibi.

On September 17-18, 1990, the Macomb County Circuit Court held a preliminary examination to determine whether sufficient evidence existed to proceed to trial. During that hearing, Fournier testified that, prior to the assault, she had dated and lived with Moldowan for more than a year before their relationship ended when he was arrested for assaulting her. Fournier and her sister both testified that, prior to the attack, Moldowan had been abusive toward Fournier and threatened her. In describing the assault, Fournier testified that she had been walking on 11 Mile Road in Warren when a van pulled alongside her. Fournier testified that Moldowan got out of the van, grabbed her, and dragged her into the van, where she was beaten and raped. As a result of the assault, Fournier suffered significant injuries that required extensive abdominal surgery.

Corcoran also testified at the hearing, stating that she received a call from an unidentified male on August 9, 1990, the day Fournier was found in Detroit, inquiring as to Fournier's whereabouts. Corcoran claims that she immediately recognized the caller as Moldowan. Corcoran testified that, although she knew that her sister was in the hospital, she lied and told Moldowan that her sister was at home with her, and that Moldowan then exclaimed: "No, she's not.... She's at the morgue." (J.A. 839.) Corcoran also testified that Moldowan had called her home the previous day looking for Fournier, and that Moldowan had stated that "he was going to get her." (J.A. 841-42.)

At the conclusion of the examination, the court dismissed Jim Cristini as a defendant, but bound over Moldowan and Michael Cristini on all counts. A jury trial was held from April 30 to May 10, 1991, during which Fournier and Corcoran offered substantially the same testimony they provided during the preliminary examination. Fournier also testified that she had never been in the Detroit neighborhood where EMS found her, and that she had never frequented a crack house in the area.

In addition, Dr. Alan Warnick, D.D.S., a forensic odontologist and consultant for the Wayne County Medical Examiner's Office and a consultant to Macomb County, Monroe County, and the Michigan State Police, offered expert testimony that bite marks on Fournier's neck were consistent with dental impressions taken from Moldowan, and that bite marks on Fournier's right arm and right side were consistent with Michael Cristini's dentition. In describing his conclusions, Dr. Warnick testified that the "chances are ... 2.1 billion to 1 that another individual can make those same marks." (J.A. 2544.)

In presenting their defense, Cristini and Moldowan offered alibi witnesses who testified that the defendants were not together on the evening in question. The defense also introduced pizza delivery tickets which documented the location of the pizza deliveries Cristini had made the night of August 8, 1990, seeking to show that Cristini could not have been part of the kidnaping. The defense also presented testimony from a witness who claimed that she observed several males in the street where Fournier was found, and that the males were both Caucasian and African-American. The defense also offered expert testimony from its own forensic odontologists countering Dr. Warnick's testimony concerning the bite-mark evidence.

On rebuttal, the prosecution called Dr. Pamela Hammel, D.D.S., a colleague of Dr. Warnick, who offered testimony corroborating and supporting Dr. Warnick's conclusions.

On May 10, 1991, the jury convicted Moldowan and Cristini of kidnaping, assault with intent to commit murder, and two counts of criminal sexual conduct in the first degree. After sentencing, the court entered an order requiring that "[a]ll evidence in the custody of the Warren Police Department, the Macomb County Prosecutor's Office and the Macomb County Circuit Court[,] whether admitted into evidence or not ... [,] be preserved from this date forward until further order of the Circuit Court, Michigan Court of Appeals, or Michigan Supreme Court." (J.A. 2613.)

After trial, a private investigator hired by Moldowan's family located a witness, Jerry Burroughs, who reported that, on the morning of August 9, 1990, he saw four African-American males standing around a naked white female who was lying in the street, and that he saw the four men leave in a light-colored van....

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