Robertson v. Ansari

• Citation: 753 F.3d 606
• Decision Date: 28 May 2014
• Docket Number: Nos. 12–3877,12–3890,12–3882,12–3886,12–3889,12–3897.,s. 12–3877
• Parties: Johnny ROBERTSON (12–3877); Arrico Spires (12–3882); Charles Matthews (12–3886); Marlon Brooks (12–3889); Tyron Brown (12–3890); Nolan Lovett (12–3897), Plaintiffs–Appellants, v. Lee LUCAS; Robert Cross; Richland County; Chuck Metcalf; Matt Mayer; Larry Faith; Thomas Verhiley; City of Cleveland: Jamaal Ansari; United States of America, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

753 F.3d 606

Johnny ROBERTSON (12–3877); Arrico Spires (12–3882); Charles Matthews (12–3886); Marlon Brooks (12–3889); Tyron Brown (12–3890); Nolan Lovett (12–3897), Plaintiffs–Appellants,

v.Lee LUCAS; Robert Cross; Richland County; Chuck Metcalf; Matt Mayer; Larry Faith; Thomas Verhiley; City of Cleveland: Jamaal Ansari; United States of America, Defendants–Appellees.

Nos. 12–3877, 12–3882, 12–3886, 12–3889, 12–3890, 12–3897.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 11, 2013.

Decided and Filed: May 28, 2014.

ARGUED:Debra Loevy–Reyes, Loevy & Loevy, Chicago, Illinois, for Appellants. Thomas G. Roth, Belle Meade, New Jersey, for Appellee Lucas. Lowell V. Sturgill, Jr., United States Department of Justice, Washington, D.C., for Federal Appellees. Daniel T. Downey, Weston Hurd LLP, Columbus, Ohio, for Appellees Faith, Mayer, and Richland County. ON BRIEF:Debra Loevy–Reyes, Loevy & Loevy, Chicago, Illinois, for Appellants. Thomas G. Roth, Belle Meade, New Jersey, Joel J. Kirkpatrick, Kirkpatrick Law Offices, P.C., Plymouth, Michigan, for Appellee Lucas. Lowell V. Sturgill, Jr., United States Department of Justice, Washington, D.C., for Federal Appellees. Daniel T. Downey, J. Quinn Dorgan, Weston Hurd LLP, Columbus, Ohio, for Appellees Faith, Mayer, and Richland County. Michael M. Heimlich, Delaware, Ohio, for Appellee Metcalf. Jennifer Meyer, City of Cleveland Department of Law, Cleveland, Ohio, for Appellees Ansari and City of Cleveland.

Before: KEITH, GUY, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which KEITH and GUY, JJ., joined. KEITH, J. (pp. 624–26), delivered a separate concurring opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiffs-appellants Johnny Robertson, Nolan Lovett, Arrico Spires, Charles Matthews, Marlon Brooks, and Tyron Brown appeal the district court's grant of summary judgment to defendants-appellees Lee Lucas, Robert Cross, Thomas Verhiley, Jamaal Ansari, Chuck Metcalf, Matt Mayer, and Larry Faith, and the district court's dismissal of appellants' claims against Richland County and the City of Cleveland. Appellants argue that the district court erred in holding that the individual appellees were shielded by qualified immunity on their 42 U.S.C. § 1983 and Bivens claims; that judicial estoppel barred appellants' false arrest claims; that because the individual appellees had not committed constitutional violations, appellants could not prevail on their Monell claims; and that appellants were not entitled to additional discovery. For the reasons stated below, we affirm.

I.

A.

This is yet another case in a series of civil rights cases arising out of a corrupted investigation into the Mansfield, Ohio, drug trade (the “Mansfield Investigation” or “Operation Turnaround”). As part of the investigation, the Richland County Sheriff's Office (“RCSO”) used a confidential informant it had used once before named Jerrell Bray. Bray's primary task was to make controlled buys of illegal drugs from individuals in Richland County suspected of being involved in illegal drug activity.

In August or September 2005, the United States Drug Enforcement Agency (“DEA”) joined the Mansfield Investigation at the request of RCSO. Bray was registered as a DEA informant by Special Agents Robert Cross and Lee Lucas. Prior to DEA's involvement, Bray made numerous buys for RCSO. Bray's first buy as a DEA informant occurred on September 6, 2005.

Throughout the investigation, Bray was controlled principally by Detective Chuck Metcalf, Sergeant Matthew Mayer, and Captain Larry Faith of RCSO. Jamaal Ansari was a police officer with the City of Cleveland Police Department detailed to the DEA's Cleveland office and deputized as a DEA Task Force Officer pursuant to 21 U.S.C. § 878 during part of the Mansfield Investigation. Thomas Verhiley was a Special Agent with the Ohio Bureau of Criminal Identification and Investigation also detailed to the DEA's Cleveland office and deputized as a DEA Task Force Officer during part of the investigation. These seven individuals are the individual appellees in the instant suit.

All targets of the Mansfield controlled buys were selected either by Bray or RCSO. The controlled buys resulted in numerous arrests and indictments. Robertson, Lovett, Spires, Matthews, Brooks, and Brown were among those indicted.

Lucas was the case agent who testified before the grand jury concerning Robertson, Lovett, Spires, Matthews, Brooks, and Brown. He testified about the corroborative measures generally used to substantiate Bray's information and to supervise Bray's controlled purchases. These included:

• criminal history checks on each suspect;

• driver's license checks on each suspect;

• searches of Bray's person and vehicle prior to a controlled purchase to confirm that he did not have drugs or money;

• tape-recorded phone calls to the suspects to set up buys;

• copies of serial numbers of the buy money so that if a suspect was arrested, officers could confirm that Bray used money supplied by law enforcement to make the controlled purchase;

• audio surveillance via a transmitter;

• visual surveillance of the purchases, which included watching Bray enter and exit the buy location and watching the drug transaction take place if visible;

• meeting Bray after the buy at a predetermined location to recover the drugs and recording device;

• re-searching Bray and his vehicle to make sure he did not steal drugs or money; and

• in certain cases, undercover participation by Lucas or Ansari in the drug transaction.

Lucas also testified about specific controlled purchases Bray made from appellants. On the basis of this information, a federal grand jury returned an indictment and later a superseding indictment against appellants. On November 9, 2005, pursuant to the initial indictment, a judge issued warrants for appellants' arrests.

B.

Corruption pervaded the Mansfield Investigation. Following the completion of the investigation, Bray, while in jail for an unrelated homicide, disclosed that he had abused his position as an informant. The evidence in this case strongly indicates that, as to some arrestees, law enforcement knew of, and even participated in, Bray's misdeeds. Appellants produced copious evidence of wrongdoing throughout the wider investigation. We need not detail all the evidence in this case to emphasize that law enforcement conducted itself inappropriately. Nevertheless, we provide some context for appellants' claims.

Appellants produced evidence indicating that Bray, while working as a confidential informant, framed innocent individuals, stole money and drugs from law enforcement, and dealt his own drugs on the side. Appellants also produced evidence that officers altered evidence to corroborate Bray and that certain appellees lied to prosecutors on Bray's behalf.

Bray used stand-ins to frame innocent individuals, and appellees supported Bray's false identifications of these individuals. For example, a stand-in was used to frame appellants' former co-defendant Dwayne Nabors. Metcalf has admitted that he lied during Nabors's criminal trial, including admitting to a false identification of Nabors. Ansari also falsely identified Nabors in the alleged drug transaction. Lucas and Metcalf lied to the prosecutor about whether there was video taken of the transaction, although Metcalf himself had operated the video camera.

Bray used the controlled buys to steal money and drugs. Appellees were aware of this fact yet continued to use Bray as an informant. On one occasion, Verhiley and Ansari caught Bray stealing money given to him for a drug buy. On another occasion, Bray accepted a Buick Cutlass (a car) in lieu of some of the money that was supposed to be paid as part of the drug deal. In effect, Bray was shorting the government the value of the car. Bray, however, was caught on appellees' recording discussing the “Cutty.” When Bray was questioned about the conversation, he claimed it was a comment about a “Caddy” (Cadillac) that he had been interested in purchasing, but Lucas stepped in on Bray's behalf and asserted that “Cutty” was another term for drugs.

Efforts to corroborate Bray's information were stymied by Bray, and law enforcement disregarded accepted protocol. For example, the first step in a controlled buy was typically a controlled phone call to the target. Appellants produced evidence indicating that Bray dialed identical telephone numbers for unrelated suspects and lied about which suspects he was calling and that the official reports did not accurately reflect the phone conversations Bray had. Bray at times turned off his wireless transmitter during buys. Metcalf also admitted that “the manner in which the Webb deal was conducted violated DEA procedures” and “was not the way that a standard deal should go.”

Almost none of appellants' evidence, however, relates to their own controlled buys, or their subsequent arrests and prosecutions. Only Lovett and Robertson even suggested any impropriety in drug buys involving appellants. At Lucas's criminal trial, discussed at greater length below, Bray testified that he supplied Lovett with the drugs that Lovett allegedly sold to Bray in order to frame Lovett for the sale. Robertson testified that Bray set him up in a manner similar to Lovett. This story was confirmed by Bray at Lucas's trial. Lucas claims that he was not aware of either set-up. And Bray testified that no law enforcement officials, including Lucas, were involved in or aware of his deceptions.

C.

As a result of Bray's admissions, the investigation fell apart. On December 20, 2007, Bray pled guilty to two counts of perjury and five counts of deprivation of civil rights. Bray admitted to falsely identifying several targets as having participated in drug transactions and to perjuring himself at trial by deliberately misidentifying people. Bray's plea, however, did not implicate any of the appellants in this case.

In ...