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Jones v. City of Akron

United States District Court, N.D. Ohio, Eastern Division

April 23, 2018

DEWEY AMOS JONES, Plaintiff,
v.
THE CITY OF AKRON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Motion for Summary Judgment of Defendants. (ECF #92). Plaintiff filed a Response in opposition to the Defendants' motion. (ECF #128). Defendants filed a Reply in support of their motion for summary judgment. (ECF #134). Also pending before the Court is a fully briefed Motion to Strike Declaration of Thomas Adgate. (ECF #135, 139, 140). Having considered all of the submissions, and having reviewed the undisputed facts and applicable law, this Court finds that Mr. Adgate's Declaration should be stricken, and Defendants' Motion for Summary Judgment should be GRANTED.

         Facts and Procedural History[1]

         Plaintiff, Dewey Amos Jones filed a Complaint under 42 U.S.C. § 1983 and Ohio law. Plaintiff voluntarily abandoned certain claims set forth in the Complaint. The remaining pending claims under §1983 are: (1) Suppression of Exculpatory Material; (2) Suggestive Identification; (3) Fabricated Evidence; (4) Malicious Prosecution; and, (5) Conspiracy. He also has pending claims for Malicious Prosecution, Infliction of Emotional Distress, and Indemnification under Ohio state law. (ECF #1). Defendants filed an Answer on March 13, 2015. (ECF #13), and filed an Amended Answer on May 5, 2017. (ECF #83).

         On February 27, 2017, Plaintiff voluntarily dismissed Defendants Robert Hamas, Ronald Clark, and Bruce Van Horn, [2] pursuant to Fed.R.Civ.P. 41(a)(1). Defendants Charles Snyder and George Reuscher were also voluntarily dismissed on November 1st and 2nd of 2017, respectively. (ECF #110, 111). The remaining Defendants are the City of Akron, Robert McFarland, and Charles Parke.

         The Court will not include an exhaustive recitation of the facts and evidence presented during Plaintiff's criminal trial, but will address only those facts relied on by the parties or otherwise relevant to the issues presented for analysis in this case. Neil Rankin was murdered in his home between 4:00 and 8:00 p.m. on February 13, 1993. (ECF #105 at 114-115). One wrist had been tied, and he had been shot twice in the head. There was no sign of forced entry. Mr. Rankin's car was missing, along with several other items that were taken from the house. Plaintiff's wife, Lori Jones, and a friend, Gary Rusu, found the body on February 14, when Ms. Jones claims to have gone to his house to check on him after being unable to reach him the day before. (ECF #101 at 32). An investigation ensued.

         The day the body was discovered, police interviewed a neighbor, Mr. Strittmater, who lived directly across the street. According to Detective Lacy's Report of Investigation, Mr. Strittmater recalled seeing a white male, mid-30s, with brown or dark neck length hair, and “beer belly” inside the breezeway of the victim's house around 4:00 pm on February 13, 1993.[3] He indicated that he had not seen the man before, and described him as wearing a 3/4 length dark burgundy jacket, with black pants, black leather shoes, and very noticeable glasses. (ECF # 92-2 at 2). A Report of Investigation filed by Sgt. Arnette the next day indicated that Mr. Strittmater estimated the man's height to be 5'9." (ECF #101 at 35).

         Mr. Rankin's car was found the day after the murder. Two witnesses, Mr. Fisher, a teenage boy, and his soon to be stepfather, Mr. Hughey, both saw a man next to Mr. Rankin's car where it had been left after the murder. According to Detective Lacy's Report of Investigation, Mr. Fisher saw a man that afternoon/evening around 4:45 -5:30 p.m., and Mr. Hughey saw “the guy with glasses” on Wednesday, several days prior to the murder. (ECF # 92-2 at 3; ECF #119 at 27). The man was described by Mr. Fisher as white, 28-32 years old, approximately 6'1" and 185 lbs. He was said to have brown, neck length hair, and was wearing a dark leather coat, dark pants, and old style glasses.

         Later on the night of February 14th, Sgt. Arnette showed Mr. Strittmater a photo array from which he identified Terry Bowers as the person “who looked most like” the man he had seen in the breezeway. (ECF #101 at 549). The same photo array was shown to Mr. Fisher and Mr. Hughey, the two men who had seen an individual by the victim's car. (ECF #101 at 35). Both of these witnesses selected a photo of Larry Hayes as matching the person they had seen. (ECF #101 at 35). In their briefing, the parties do not clearly indicate whether Plaintiff's picture was contained in this original photo array, however a later statement by Mr. Hughey, and Detective McFarland's testimony at the first suppression hearing suggest that it was not.[4] (ECF #92-2, at 58; ECF #104 at 60, lines 23-25). This photo array was lost sometime before Plaintiff was indicted for the murder, robbery, and kidnaping of Mr. Rankin.

         In December of 1993, the police re-visited Mr. Strittmater and showed him another photo array containing sixteen Polaroids. According to Detective McFarland's field notes of this interview, Mr. Strittmater identified Mr. Rusu and Mr. Courie as people he'd seen at the victims house before. He also identified pictures of two women who used to come over to the victim's house. He identified Billy Wilson as someone he had seen coming to the victim's house in an old Chevy pick up, and stated that he was a mechanic. Mr. Strittmater said that if Billy Wilson had been dressed up in a black leather jacket and shaved, “it would look like him” (presumably referring to the person in the breezeway on the day of the murder). (ECF #101 at 145). According to the Reports of Investigation, when questioned whether he had previously identified a different person, Mr. Strittmater indicated he had previously picked Larry Hayes because his was “the only one of the pictures I saw that I recognized as being over at Neal's. Now that I see both together, I feel that it was this guy (Wilson) that I saw leave the breezeway that night with something under his jacket.” (ECF #101 at 145). Detective McFarland's notes from that day, as well as the prior Report of Investigation, shows that Mr. Strittmater never identified Larry Hayes as the possible suspect, but rather had previously identified Terry Bowers. (ECF #102 at 304-306).

         According to the Reports of Investigation, Mr. Strittmater identified Plaintiff's photo and one other as people who had been to the victim's house and helped move his car. He also noted that had seen Plaintiff there frequently to clean up the victim's garage. Although it was not mentioned in the Report of Investigation, Detective McFarland's field notes indicated that the Detective then pulled five of the pictures out and told him “if you were shown these five pictures (not knowing the five in the array other than Larry Hayes), what would you say?” From the five photos, Mr. Strittmater “immediately selected Billy Wilson.” He said it could also have been a Harold but only if he had shorter hair and was clean shaven at the time. It is unknown whether Plaintiff's picture was one of the five photos pulled out. The police then expanded the array to thirty photos, but the notes do not indicate whether Mr. Strittmater identified any of the individuals in the added photos. (ECF #92-2 at 60-66).

         The same thirty photographs provided to Mr. Strittmater were shown to Mr. Hughey and Mr. Fisher, the witnesses who saw a man near Mr. Rankin's car. (ECF #92-57-58). Having seen these new photographs, Mr. Fisher affirmed his original identification of Larry Hayes, while Mr. Hughey selected Plaintiff's picture and reportedly stated that he would have picked that photo earlier if it had been in the original array. (ECF #92-2, at 58).

         On March 8, 1994, Detective McFarland took Mr. Strittmater to a tow yard to identify the orange truck he had seen around Mr. Rankin's house, prior to and on the night of the murder. (ECF #101 at 171). Mr. Strittmater identified the truck as the one he had seen, and stated that he had seen George Courie drive the truck to Mr. Rankin's house a number of times in January and February of 1993. (ECF #101 at 172). According to the Report of Investigation, Mr. Strittmater again stated that Plaintiff was the person he has most often seen at Mr. Rankin's house, but that Billy Wilson was the person he saw in the breezeway the night of the murder. (ECF #101, at 172-173).

         On May 3, 1994, Detectives Parke and McFarland visited Mr. Strittmater yet again, and showed him another six picture array. (ECF #100 at 198, 201-202). According to Detective McFarland the purpose of showing the array at this visit was to confirm that Plaintiff was the person who was at Mr. Rankin's house the most often, even though he had already identified him as the most frequent visitor during the prior interviews in December of 1993 and February of 1994. (ECF #100 at 202-203). Mr. Strittmater again identified Plaintiff as “probably the most frequent visitor to Rankin's house, ” and the signed the back of the picture. (ECF #100 at 205-206).

         Mr. Strittmater was then shown a single photo of Plaintiff with glasses on.[5] This photograph was actually a Christmas photo showing Plaintiff with his wife and children. (ECF #104 at 75; ECF #100 at 206). According to the Report of Investigation, Mr. Strittmater said “Wow, that really looks like the guy I saw coming out the front door of Neal's house when he walked over towards the truck.”[6] (ECF #101 at 217). According to the reports and Detective McFarland's Deposition testimony in this case, this was the first time that Mr. Strittmater made any connection between Plaintiff and the man in the breezeway on the night of the murder. (ECF # 100 at 199- 209).[7] Previously, Mr. Strittmater had repeatedly stated that he had seen Plaintiff at Mr. Rankin's house on frequent occasions but that the person in the breezeway was someone he had never seen before and was a stranger to him. (ECF #100 at 170, 186, 205). The Christmas picture of Plaintiff and his family was the only picture ever shown to the witness in which any subject was wearing glasses. (ECF #104 at 77; ECF #100 at 206). On May 3, 1994, the Detectives also revisited Mr. Hughey. Mr. Hughey reiterated his belief that Plaintiff was the person seen in and around Mr. Rankin's car the day after the murder. (ECF #101 at 217).

         Lori Jones, and Virginia Jones, Plaintiff's wife and sister, respectively, were indicted for the Aggravated Murder, Aggravated Robbery, and Kidnaping of Mr. Rankin on June 3, 1994. (ECF #93-4; 93-5). Gary Rusu was indicted on the same charges on July 18. (ECF #93-6). Plaintiff was charged with tampering with evidence and obstructing an investigation. He was arrested on those charges on August 2, 1994. (ECF #92-7).

         Sometime in October, William Caton, an individual who was incarcerated with the Plaintiff, talked to Detective Parke. Mr. Caton informed Detective Parke that Plaintiff had said that a gun recovered by the police “wasn't the gun” and “that they would never find the gun.” (ECF #105 at 258). This was corroborated to some degree by information received from another inmate, Michael Higgins, who reported that Plaintiff told him that he and Gary Rusu had thrown the murder weapon into Blue Pond and the police will never find it there. (ECF #95 at 127).[8] Mr. Caton refused to say anything more about Plaintiff or the murder of Mr. Rankin during that meeting. (ECF #38-2 at 5; ECF #95 at 123).

         On October 21, 1994, a suppression hearing was held challenging the identifications of Plaintiff by Mr. Strittmater and Mr. Hughey. (ECF #104). Exhibit 1 at the hearing was the six person photographic array shown to Mr. Strittmater and Mr. Hughey in May of 1994.[9] (ECF #104 at 13-14). The parties have not provided a copy of Exhibit 1a, however, the testimony at the suppression hearing indicates that Exhibit 1a was a picture of Plaintiff. (ECF #104 at 37-38, 66-67). Mr. Strittmater testified that this photograph (1a) was the person he saw at Mr. Rankin's house. (ECF #104 at 14-15). He also testified that this was the same person he identified in December. (ECF #104 at 15). Exhibit 3 was the thirty person array shown to the witnesses in December. Exhibit 3a was picture of Plaintiff, with a mustache but no beard, that was contained in the thirty person array.[10] (ECF #104 at63- 46; ECF #93-1 at 8-9). Billy Wilson's picture was also in the thirty person array. (ECF #104 at 65). Immediately following, Mr. Strittmater testified that the person he saw at the house on February 13th was the Plaintiff, and he identified him in the courtroom. (ECF #104 at 15).

         According to the Report of Investigations, as outlined above, Mr. Strittmater identified Mr. Wilson, not Plaintiff, as the person he saw (or who looked like he saw) in the breezeway on multiple occasions, including at the December and May photo arrays. However, at the suppression hearing, when questioned about his identification of who was at the house on the night of the murder, Mr. Strittmater testified that he picked Exhibit 1a (Plaintiff's photo) as “the man [he] saw at Neal Rankin's house.” (ECF #104 at 14, 62). He also testified that this picture was the same photo that he picked from “that large group of photographs.” This would appear to reference the prior thirty photo array. Plaintiff's lawyer on cross-examination did try to point out that Mr. Strittmater previously chose Mr. Wilson's photo on several occasions but did not clarify that, according to the Reports of Investigation, there was no record that Mr. Strittmater identified the Plaintiff as looking like the person in the breezeway until he was shown the single family Christmas photo in which Plaintiff was wearing glasses.[11] (ECF #104 at 25-26).

         At the suppression hearing, Detective McFarland testified that Mr. Strittmater “zeroed in on” Plaintiff's picture when he was asked who the “person was he saw around Mr. Rankin's house on February 13th.” (ECF #104 at 63). He also testified that neither Mr. Strittmater nor Mr. Hughey were shown the family Christmas photo of Plaintiff wearing glasses until after they had already identified and signed the picture of Plaintiff from the six picture array in May of 1994. (ECF #104 at 76). The prosecutor focused in closing not on the Christmas photo identification, but on the alleged identification of Plaintiff by both witnesses from the May, six picture array. In closing, he stated that Mr. Strittmater “fairly certainly, picked Dewey Jones” from this array.” (ECF #104 at 101).

         According to the Reports of Investigation, and Detective McFarland's deposition testimony for this case, Mr. Strittmater did not pick Plaintiff out of the thirty person array. (ECF #101 at 145). Detective McFarland confirmed, in his deposition, that Mr. Strittmater had never identified Plaintiff as the man in the breezeway and never stated that he looked like that man until he was shown the Christmas photo of Plaintiff. (ECF #100 at 213-214). Specifically he testified that as of May 3, 1994, “as far as my investigation of Robert Strittmater was, he identified Bill Wilson associated with the breezeway, never identified Dewey at that point being at the breezeway and only identified Dewey at that point being the one most often there.” (ECF #100 at 199).

         Mr. Hughey testified at the hearing, attesting that he immediately identified Plaintiff as the person he saw with the victim's car following the murder when he was shown Plaintiff's picture in December and in May, both prior to viewing the Christmas photo with glasses. (ECF #104 at 39, 56). He told the investigators that he would have chosen Plaintiff's picture in February if it had been included in the original array that he had been shown. (ECF #92-2 at 58). This is corroborated by the Reports of Investigation. Mr. Hughey also identified Plaintiff in court at the suppression hearing and at trial as the man he saw at the car. According to his tesimony in the deposition for this case, he remains steadfast in belief that the Plaintiff was the person he saw with the victim's car on the day after the murder. (ECF #99).[12]

         At the conclusion of the suppression hearing, the court held as follows:

The Court has had the opportunity to look at the State's Exhibit Number 1 as well as the other multitude of photographs in this case. I am not convinced that the out-of-court identification in this case was in any way suggested by or unduly influenced by the photo array process that was conducted in this case ... In any event, the Court does not find the process unduly suggestive in any way, particularly in examining State's Exhibit Number 1... I do not find that that procedure in any way contributed to the identification by Mr. Strittmater or Mr. Hughey. I feel that they had sufficient opportunity to observe the individual the day in question, so the motion to suppress is hereby overruled.

(ECF #104 at 97-98).

         Based on the testimony provided at the suppression hearing, the identifications by Mr. Strittmater and Mr. Hughey, and other background information, the Prosecutor decided that he would seek an indictment against Plaintiff on the charges of Aggravated Murder, Aggravated Robbery, and Kidnaping, and would dismiss the indictments against the other suspects, Gary Rusu, Lori Jones, and Virginia Jones. (ECF # 34-7; ECF # 96 at 19-22, 77). The detectives did not request these additional charges and Detective McFarland, in particular, did not support pursuing murder charges against Plaintiff at that time. (ECF #55 at 55-57). Plaintiff was indicted for Aggravated Murder, Aggravated Robbery and Kidnaping with firearm specifications on November 22, 1994. (ECF # 93-8).

         On December 10, 1994, Mr. Caton sent Detective Parke a letter that talked about Plaintiff having a part in Mr. Rankin's murder. (ECF #38-2 at 6-10; ECF #105 at 262). He was interviewed by Detective Parke and told the detective that Plaintiff had confessed to murdering Neal Rankin. (ECF # 95 at 144-145). Later that month, Mr. Caton sent a letter to the prosecutor stating that he did not want to testify against Plaintiff if he was going to be in a correction facility because he was afraid of retribution. The letter asked the prosecutor for help being placed into treatment and help finding a job. (ECF #38-2 at 10-12; ECF #105 at 263-265). Mr. Caton testified at Plaintiff's trial that no one, including the prosecutor, promised to help him in any way, although he hoped that they would. (ECF #38-2 at 14).

         Plaintiff's trial began on February 21, 1995. (ECF #105). A mistrial was declared the same day because one of the prosecution witnesses, the daughter of the victim, Mr. Rankin, disclosed the Plaintiff's prior criminal history in front of the jury, despite having being counseled by the Prosecutor and by the Court not to do so. (ECF #105 at 27-29). A new jury was empaneled the next day and trial proceeded. (ECF #105). Among the evidence presented at trial were the identifications by Mr. Strittmater and Mr. Hughey, and the testimony of Mr. Caton. (ECF #105 at 149). The victim's daughter also testified that her father had asked her for a gun shortly before his death because he was afraid of the Plaintiff.[13] Another witness testified that Plaintiff had previously said he was upset that Mr. Rankin gave Virginia Jones more money than he gave to Plaintiff's wife, Lori, and that “he wouldn't mind putting a gun to [Mr. Rankin's] head one day and pulling the trigger.” State v. Jones, 1996 Ohio App. LEXIS 289, *7. An additional witness tied Plaintiff to the truck parked near Mr. Rankin's house on the day of the murder. Id. at *21.

         Plaintiff was convicted of Aggravated Murder, Aggravated Robbery, and Kidnaping with firearm specifications. He was sentenced on March 1, 1995 to life imprisonment for the Aggravated Murder, and to ten to twenty-five years each on the Aggravated Robbery and Kidnaping charges. All of the charges were sentenced to run consecutively. He was also sentenced to a mandatory three years to be served first and consecutively to the others for the firearm specification. (ECF #105 at 584-586).

         On direct appeal, Plaintiff raised several assignments of error relating to evidentiary rulings, prosecutorial statements in closing, and sufficiency of the evidence. State v. Jones, 1996 Ohio App. LEXIS 289 at *1-2. He did not appeal the trial court's ruling denying his motion to suppress Mr. Strittmater's and Mr. Hughey's identifications. Id. The Ninth District Court of Appeals overturned the kidnaping conviction for insufficiency of the evidence. All other aspects of the jury verdict and sentencing were affirmed. (ECF #96 at 91; State v. Jones, 1996 Ohio App. LEXIS 289). The trial court vacated the kidnaping sentence and issues a new journal entry reimposing the remaining sentences. Plaintiff filed a notice of appeal to the Ohio Supreme Court, which was dismissed as not involving any substantial constitutional question. See Jones v. Mitchell, Case No. 4:97 CV 989, April 21, 1997, ECF #13 at p. 2.

         Plaintiff then filed a habeas corpus petition with the Northern District of Ohio, challenging his convictions on the grounds that he was denied his right to confront a witness and present a defense when his counsel was prevented from asking Detective McFarland if the victim's daughter had ever mentioned her father's fear of Plaintiff prior to trial. Jones v. Mitchell, Case No. 4:97 CV 989. The district court held that even if she had not previously mentioned her father's alleged fear of Plaintiff, this would not demonstrate witness bias and would not have affected the fundamental fairness of his trial. The petition was, therefore, denied. Jones v. Mitchell, Case No. 4:97 CV 989, Docket No. 13, 16, January 9, 1998. The denial was appealed to the Sixth Circuit Court of Appeals, and was affirmed. Jones v. Mitchell, Case No. 98-3130, February 23, 1999.

         At the time of Plaintiff's trial the available DNA testing was not able to provide any results. Plaintiff sought permission to have the DNA evidence tested after his conviction when the testing technology improved to the point where a successful test was possible. Some of the DNA results affirmatively excluded the Plaintiff, and some were inconclusive. The Common Pleas Court of Summit County, Ohio granted Mr. Jones' Motion for New Trial in July 2012, based on the new DNA evidence, which it determined could be exculpatory, but did not conclusively show innocence. The government appealed this decision, and the Ninth District Court of Appeals upheld the ruling. State v. Jones, 2013 Ohio App. LEXIS 3029 (9th App. Dist., July 10, 2013).

         On August 8, 2013, the state filed a notice of intent to retry Plaintiff. (ECF #43-1 at 4). Plaintiff filed several pre-trial motions, including motions attacking the indictment, the admissibility of Mr. Caton's testimony, the admissibility of Mr. Strittmater and Mr. Hughey's identifications, and addressing other potential evidentiary issues. (ECF #93-13). The Court of Common Pleas denied the motion to dismiss indictment, the motions to suppress the identifications of Plaintiff, and the motion to suppress Mr. Caton's testimony. (ECF #93-13).

         On January 30, 2014, the State filed a Motion to Dismiss the charges against Plaintiff. The Court granted that motion, dismissing the case without prejudice. Consequently, Mr. Jones was set free after serving more than nineteen years in prison. Plaintiff's defense counsel filed a Motion for Dismissal with Prejudice which was denied on February 6, 2015. In its decision the court noted that there was no statute of limitations on murder, and declared that it could not make a presumptive finding that any future prosecution would violate Plaintiff's speedy trial rights. (ECF # 43-1).

         This case was filed on December 1, 2014, seeking damages for alleged violations of his right to fair trial under 42 U.S.C. § 1983, and for Malicious Prosecution, Infliction of Emotional Distress, Spoilation, and Indemnification under Ohio state law.

         Summary Judgment Standard

         Summary judgment is appropriate when the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed.R.Civ.P. 56©). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is “merely colorable” and not “significantly probative, ” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         Once the moving party has satisfied its burden of proof, the burden then shifts to the non-mover. The non-moving party may not simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). Fed.R.Civ.P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

         The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate. Id. Conclusory, factually unsupported allegations are insufficient to withstand a motion for summary judgment. Gagne v. Northwestern National Ins. Co., 881 F.2d 309, 315-16 (6th Cir. 1989).

         Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'” Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Fed.R.Civ.P. 56(e) also has certain, more specific requirements:

[Rule 56(e)] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.

Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect.

If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice.

Id. at 226 (citations omitted).

         As a general matter, the district judge considering a motion for summary judgment is to examine “[o]nly disputes over facts that might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh material evidence to determine the truth of the matter. Id. at 249. The judge's sole function is to determine whether there is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id.

         In sum, proper summary judgment analysis entails “the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.

         Analysis

         I. 42 U.S.C. § 1983/Due Process Clause

         A. Suppression of Exculpatory Material

         Plaintiff originally claimed that the prosecution destroyed and/or failed to turn over several items of exculpatory evidence. He has since abandoned his claim for destruction of evidence, so the Court will consider only those items claimed to have been in the Defendants' possession and allegedly withheld from the Plaintiff prior to his criminal trial. (ECF #128 at 24, fn. 10). The information Plaintiff claims was suppressed includes: (1) Detective McFarland's personal file (consisting primarily of his field notes), [14] as well the field notes of Detective Parke; (2) letters written to suspect Gary Rusu; (3) alleged promises made to William Caton, Michael Higgins, Albert Frank Butler, and Juliet DeRita; (4) photo arrays shown to Mr. Hughey and Mr. Strittmater; (5) a photograph of Plaintiff taken on February 15, 1993; (6) audio recordings of interviews; and, (7) information relating to the murder weapon. Defendants claim ...


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