Russo v. City of Warren

• Decision Date: 09 May 1995
• Docket Number: No. 94-1002,94-1002
• Citation: 54 F.3d 777,1995 WL 276257
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Shannon Gayle Barton RUSSO, Joseph Roland Russo, Plaintiffs-Appellants, v. CITY OF WARREN, a Michigan municipal corporation, Dennis Burrick, individually and in his representative capacity as Deputy Fire Marshall for the City of Warren Fire Department, John Uritescu, individually and in his representative capacity as a detective for the City of Warren Police Department, Mark Fontaine, individually and in his representative capacity as a detective for the City of Warren Police Department, Robert Lehman, individually and in his representative capacity as a detective for the City of Warren Police Department, jointly and severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 777

54 F.3d 777

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Shannon Gayle Barton RUSSO, Joseph Roland Russo, Plaintiffs-Appellants, v. CITY OF WARREN, a Michigan municipal corporation, Dennis Burrick, individually and in his representative capacity as Deputy Fire Marshall for the City of Warren Fire Department John Uritescu, individually and in his representative capacity as a detective for the City of Warren Police Department, Mark Fontaine, individually and in his representative capacity as a detective for the City of Warren Police Department, Robert Lehman, individually and in his representative capacity as a detective for the City of Warren Police Department, jointly and severally, Defendants-Appellees.

No. 94-1002.

United States Court of Appeals, Sixth Circuit.

May 9, 1995.

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

PER CURIAM.

On July 2, 1993, the district court granted summary judgment to the defendants in this Section 1983 case and dismissed with prejudice all of plaintiffs' claims. Arguing that summary judgment was inappropriate, plaintiffs Shannon Russo and Joseph Russo appeal the court's denial of their motion for reconsideration of its summary judgment order. For the reasons set forth below, we AFFIRM in part and REVERSE in part the district court's decision granting summary judgment to the defendants on all claims.

The tragedy from which this case arose occurred on October 13, 1990. On that date Shannon Barton Russo ¹ was babysitting Matthew Russo and Joey Russo, ages 2 and 4 respectively, when she noticed the lights dimming in the house and smoke in various rooms. Joey was with her, but she was unable to locate Matthew. Despite Russo's efforts to find Matthew, and those of a neighbor and another person, he was not found until the firefighters arrived and extricated him. Matthew was taken to a hospital where he subsequently died of smoke inhalation.

As the fire was being suppressed, Deputy Fire Marshall Dennis Burrick and Warren Police Department detectives John Uritescu and Robert Lehman arrived and began investigating the cause of the fire. Burrick also called arson investigation expert Donald Worden of the Michigan State Police Fire Marshall Division to assist. During his investigation, Burrick noticed a V-pattern on the floor of the family room, indicative of the use of an incendiary device. Warren Police Department detective Mark Fontaine prepared an affidavit in support of a search warrant containing Burrick's finding and opinion about the cause of the fire. The Warren Police Department conducted a search of the Russo residence and collected physical evidence for analysis. Burrick and Worden issued separate reports, each concluding that the cause of the fire was not natural, mechanical or electrical and that there were signs of the use of a liquid accelerant. Lab tests, however, failed to identify the presence of any accelerant. At the request of the police, Shannon Russo took and passed a polygraph examination. Burrick, Uritescu and Lehman interviewed several firefighters, witnesses and suspects, and found certain inconsistencies in their statements. Based on the totality of this information, Burrick and Uritescu submitted a request for an arrest warrant and turned over their files to Macomb County Prosecutor, Gerald Warner. Warner authorized a warrant for the arrest of Shannon Russo on a charge of felony murder. A magistrate approved the warrant.

On April 16, 1991, a preliminary examination was held before the Michigan 37th District Court. The hearing took all day and involved the taking of evidence from six witnesses as well as Burrick and Worden. Counsel for Russo cross-examined each witness. The state district court determined that probable cause existed to believe that a crime had been committed and that Russo committed it. Russo was then bound over for trial.

Russo filed a Motion to Quash Information in the Macomb County Circuit Court, arguing that there had been insufficient evidence of probable cause to believe that a felony murder had been committed and that Russo had committed it. The state circuit court denied the motion to quash. The circuit court noted the circumstantial nature of the evidence, and recognized that other theories as to the cause of the fire could be supported by the evidence, but the circuit court did not believe that the state district court had abused its discretion in determining that probable cause existed. Russo chose not to appeal the denial of her Motion to Quash to the Michigan Court of Appeals.

After presentation of the evidence at trial, the circuit court granted Russo's motion for directed verdict. The court believed that the weak circumstantial evidence, and the lack of evidence as to motive (an element of the crime of arson in Michigan) was such that no reasonable juror could find that Russo was the person who set the fire.

Subsequent to the criminal trial, Shannon Russo and her husband Joseph Russo filed a Section 1983 action against the defendants. The case was filed in state court but was removed to federal court pursuant to 28 U.S.C. Sec. 1441. The Russo's nine-count complaint included claims of false arrest and false imprisonment, malicious prosecution, intentional infliction of emotional distress, invasion of privacy/false light, gross negligence, conspiracy to violate Shannon Russo's rights, a claim that the municipality failed to adequately train and supervise individual defendants, and derivative claims of Mr. Russo. The City of Warren and the individual defendants filed motions for summary judgment. On June 24, 1993, after hearing, the federal district court granted the defendants' motions and dismissed all the Russos' claims, including all their state law claims. The district court believed that each of the Russos' claims was premised upon the absence of probable cause, and that they were estopped from relitigating the probable cause issue under Michigan's doctrine of collateral estoppel. The Russos then filed a motion for reconsideration, which was denied on December 3, 1993. This timely appeal followed.

On appeal, the Russos argue that the state district court's decision that probable cause existed was "vacated" by the state circuit court's subsequent directed verdict acquitting Shannon Russo. Thus, they argue that the state district court's decision cannot be given preclusive effect in their Section 1983 case on the issue of probable cause. They also argue that, even if probable cause existed, Michigan requires strict mutuality for issue preclusion and therefore they are not precluded from relitigating the issue. Finally, the Russos argue that even if the probable cause determination has preclusive effect, the district court improperly granted summary judgment as to three of their state law claims--the intentional infliction of...