David Gavitt v. Bruce Born

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0216p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

DAVID L. GAVITT, ┐
Plaintiff-Appellee (15-2136), │
│
Plaintiff-Appellant (15-2434), │
│
> Nos. 15-2136/2434
v. │
│
BRUCE BORN, personal representative of Estate of │
John E. DeVries, │
Defendant-Appellant (15-2136), │
│
│
COUNTY OF IONIA; GARY M. GABRY; RAYMOND P. │
VOET; GAIL BENDA; RONALD J. SCHAFER; CITY OF │
IONIA; KENNETH E. VOET; RANDALL W. KLEIN; │
JOHN P. FATCHETT; JOHN J. KALMAN, JR., │
Defendants-Appellees (15-2434). │
│
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cv-12164—Nancy G. Edmunds, District Judge.

Argued: August 3, 2016

Decided and Filed: September 1, 2016

Before: CLAY, ROGERS, and McKEAGUE, Circuit Judges.
_________________

COUNSEL

ARGUED: Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant in 15-2136 and Appellees Fatchett and Kalman in 15-2434.
Christopher P. Desmond, JOHNSON LAW, PLC, Detroit, Michigan, for Appellee in 15-2136
and Appellant in 15-2434. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO,
P.L.C., Livonia, Michigan, for Ionia County Appellees in 15-2434. Mary Massaron,
PLUNKETT COONEY, Bloomfield Hills, Michigan, for City of Ionia Appellees in 15-2434.
ON BRIEF: Joseph T. Froehlich, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

1
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 2

Lansing, Michigan, for Appellant in 15-2136 and Appellees Fatchett and Kalman in 15-2434.
Christopher P. Desmond, JOHNSON LAW, PLC, Detroit, Michigan, for Appellee in 15-2136
and Appellant in 15-2434. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO,
P.L.C., Livonia, Michigan, for Ionia County Appellees in 15-2434. Mary Massaron,
PLUNKETT COONEY, Bloomfield Hills, Michigan, for City of Ionia Appellees in 15-2434.

_________________

OPINION
_________________

McKEAGUE, Circuit Judge. Plaintiff in the action from which these two appeals arise,
David Gavitt, was sentenced to life in prison in 1986 after a jury found him guilty of arson and
felony murder, charges stemming from a house fire that took the lives of his wife and two
daughters. In June 2012, the state court granted Gavitt’s unopposed motion for relief from
judgment based on newly discovered evidence. The newly discovered evidence is in the nature
of advancements in fire science research and investigation methods that tend to impugn some of
the evidence on which Gavitt’s convictions were based. The judgment was vacated, the charges
dismissed, and Gavitt was released from prison.

Two years later, Gavitt brought this civil rights action against numerous city and county
entities, prosecutors, law enforcement officials, and investigators who participated in the
prosecution against him. He claims that defendants violated his due process rights by
intentionally misrepresenting evidence and failing to disclose exculpatory evidence, and that they
conspired to deprive him of his rights. All defendants moved to dismiss on the pleadings and the
district court granted all but one of the motions, that of the Estate of John DeVries, a Michigan
State Police forensic laboratory technician who testified at Gavitt’s trial.1 While the district
court identified legal deficits that warranted dismissal of most of Gavitt’s claims, it held that
Gavitt’s claim against DeVries included sufficient factual allegations to state a valid claim for
relief.

We now address two appeals stemming from the district court’s rulings. First, in No. 15-
2136, the Estate of DeVries challenges the denial of its motion to dismiss based on qualified

1
John DeVries died in 1994. His Estate is represented in this matter by Bruce Born, special personal
representative.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 3

immunity. In short, the Estate contends the district court read Gavitt’s claim too generously,
failing to recognize that the public record made in state court contradicts his allegations,
rendering the claim implausible. Second, in No. 15-2434, Gavitt challenges the dismissals of his
claims against the other defendants, contending that his allegations pass muster at the pleading
stage and that he deserves the chance to conduct discovery. For the reasons that follow, we deny
relief in both appeals. The Estate’s appeal must be dismissed for lack of appellate jurisdiction.
As to the second appeal, we affirm, finding no error in the dismissals of Gavitt’s claims against
the remaining defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND

Each of the district court’s substantive rulings includes substantially the same summary
of the factual and procedural background. No party having disputed the accuracy of the
summary, it is reproduced here:

A. Fire, Investigation, Arrest, Trial, and Conviction

Gavitt survived a March 9, 1985 house fire. His wife and two daughters
tragically did not. An investigation was initiated by the City of Ionia Police
Department and the Michigan State Police Arson Task Force.

On the morning of March 10, 1985, Defendants Kalman and Fatchett,
then-Michigan State Police (“MSP”) officers assigned to the MSP Arson Strike
Force Unit (“Det./Sgt. Kalman” and “Det./Sgt. Fatchett” respectively), were
dispatched to the scene of the house fire to investigate its cause and origin. Based
on their initial review of the evidence, they concluded that the fire was incendiary
in nature. At 2:30 in the afternoon that same day, Det./Sgts. Kalman and Fatchett
summoned Defendant Klein, then-Sergeant with the Ionia Police Department
(“Sgt. Klein”), to the burned home, walked him through the evidence at the fire
scene that led them to their initial conclusion that the fire was incendiary in
nature, and collected evidence that Sgt. Klein then placed in an Ionia Police
Department evidence locker. Sgt. Klein then continued his investigation by
obtaining evidence from and interrogating Plaintiff David Gavitt (“Gavitt”), and
obtaining more evidence from the burned home.

On March 12, 1985, as reported in Det./Sgt. Kalman’s March
1985 Report, a meeting was held “for the purpose of reviewing the evidence and
determining the course of the investigation.” Defendant Prosecutor Gabry is
listed as being present. Det./Sgt. Kalman reported that he presented evidence, a
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 4

discussion was held, and a conclusion reached that Gavitt may have set the fire
himself and was unable to save his family once the fire started:

Undersigned officer explained the burn patterns and also relating
[sic] the burn patterns to the burns on the victim. A formal
discussion was held on all the evidence obtained and it is the
feeling that there is strong evidence pointing to the fact that MR.
DAVID GAVITT may have indeed set the fire himself and was
unable to save his family once the fire started.

Sgt. Klein’s March 20, 1985 Report also discussed the March 12th meeting and
calls it a “‘skull session’ starting at/around 8:30 am, ending a short time later.”
Sgt. Klein does not list Prosecutor Gabry as being present. Rather, he reports:

Journal Entry: It was on TUES, MARCH 12th, 1985 that this
investigating officer, Sgt. Wieczorek and Chief Voet met with the
following: City Superintendent Allen Housler, Det/Sgt. JOHN
KALMAN and Det/Sgt. JOE DeKRACKER of the Arson Strike
Force, MSP Rockford Post, this meeting was an “initial assessment
of the case”. It should be noted that this meeting was a “skull
session” starting at/around 8:30 am, ending a short time later.

On June 10, 1985, a felony complaint was issued, and state criminal
charges were brought against Gavitt – three counts of murder, three counts of
felony murder, arson, and arson insured property – and he was subsequently
arrested. Sgt. Klein was the complaining witness on the criminal complaint.

On June 21, 1985, a preliminary examination hearing was held on the
criminal charges brought against Gavitt. District Court Judge James Ward was
the presiding judge and Defendant Gabry was the prosecutor. The District Court
found that probable cause existed on the charged offenses – murder, felony
murder, and arson – but dismissed the insurance fraud charge.

A jury trial was held in the Circuit Court for the County of Ionia. On
February 14, 1986, a jury convicted Gavitt on three counts of murder committed
in the perpetration of arson (first degree felony murder) and one count of arson to
a dwelling place. The one count of arson was dismissed by the Court at
sentencing.

On April 18, 1986, Gavitt was sentenced to “imprisonment for life on each
of the three counts of murder, to be served concurrently with each other.”

B. Innocence Clinic’s Post-trial Motion for Relief, Stipulation, and Dismissal

In September 2011, a motion for relief from judgment was filed on
Gavitt’s behalf by the University of Michigan Law School’s Innocence Clinic,
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 5

arguing that there was newly discovered scientific analysis of the origin and cause
of the March 1985 fire establishing that there was no arson. That motion
explained that evidence of actual innocence was only recently discovered
because, beginning in 1992, there has been a complete revolution in the field of
fire investigation:

14. The field of fire investigation has undergone a complete
revolution since Mr. Gavitt was convicted in 1986. In 1992, the
National Fire Protection Association adopted NFPA 921, the
current standard of care for fire investigations, which for the first
time put the field of fire investigation on a scientific basis.

15. In light of the changes in the field of fire investigation, John
Lentini – a world-renowned fire investigator who has reviewed all
available testimony and evidence in this case – has concluded that
there is no basis to conclude that arson was the cause of the Gavitt
fire. Mr. Lentini’s affidavit is attached to the brief accompanying
this motion.

16. Mr. Lentini’s findings are rooted in the crucial concept of
“flashover,” which was not well understood by the fire
investigation community at the time of Mr. Gavitt’s trial. During
flashover – a phenomenon that takes place when a compartment
like the Gavitt living room catches fire – a room becomes so hot
that every exposed combustible surface can catch fire.

*****

29. Mr. Lentini’s scientific conclusions regarding the origin and
cause of the Gavitt fire meet this [newly discovered evidence] test.
His findings are based on the new standards of origin and cause
investigation, which were not adopted until the early 1990s, at the
earliest, years after Mr. Gavitt’s trial. The evidence refutes all
scientific evidence presented at trial, so it is not cumulative.
Further, because the prosecution’s case relied wholly on the
testimony of fire experts, no rational jury could have found Mr.
Gavitt guilty of murder if the findings of Mr. Lentini or any
competent fire investigator applying modern standards had been
presented. This is particularly true when this evidence is
considered alongside the new evidence regarding the absence of
gasoline on the carpet samples. . . .

30. Finally, because the field of gas chromatography was much
less precise in 1986 than it is today, trial counsel could not have
discovered the new evidence that undermines Mr. DeVries’s
testimony through the exercise of due diligence, and the fourth and
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 6

final prong for granting a new trial based on newly-discovered
evidence is satisfied.

The supporting brief relied heavily on John Lentini’s Affidavit and
similarly argued that, because of “significant advancements in the field of fire
science and arson investigation,” there is newly-discovered evidence that
undermines the prosecution’s case against Gavitt:

While the investigation of this case was, perhaps, normal for a fire
investigation conducted in the mid-1980s, approximately a decade
before scientific principles were first applied to fire investigation,
practically all of the investigative methods and conclusions
reached by the various fire investigators in this case fail to meet
modern standards of accuracy and reliability.

*****

The field of fire investigation has undergone a complete revolution
since Mr. Gavitt’s conviction. John Lentini Affidavit ¶¶ 15-59.
Theories that low-burning, alligatoring, pour patterns, depth of
char, and temperature and speed of fires can serve as indicators of
arson were once unquestioned, but have been completely and
unequivocally repudiated by rigorous scientific testing. Id. at ¶¶
36-59. As such, every indicator of arson relied upon by the
prosecution’s experts at Mr. Gavitt’s trial has been discredited and
is understood to be useless in determining the true origin and cause
of fires. Id. Many factors once thought to be present only in
accelerated fires are now understood to be present in natural fires
that have undergone flashover and progressed to full room
involvement, a phenomenon that was not understood in 1986[.] Id.
at ¶¶ 29-35.

*****

Mr. Lentini’s finding that Mr. DeVries’s testimony about the
carpet flame tests was false meets all parts of the standard for
newly-discovered evidence. Given that the understanding of
flashover is a novel concept in arson science and certainly was not
known outside of a very small subset of the scientific community
at the time of Mr. Gavitt’s trial, the evidence itself and not merely
its materiality is newly-discovered. For this same reason, it is clear
that the evidence could not have been discovered with due
diligence at the time of trial; indeed the concept of flashover would
not become widely known and understood by fire investigators
until at least a decade after Mr. Gavitt’s conviction. . . .
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 7

As Mr. Lentini admitted in his affidavit, at the time that Sgt. Fatchett and
the Ionia County Prosecutor’s expert, Dr. Edwards, considered the impact of
flashover, they had no way of knowing that their generally accepted
interpretations of burn patterns would be refuted years later:

Neither Sgt. Fatchett nor Dr. Edwards considered the impact of
flashover and the impact of the burning curtains when they
attempted to discern what caused the patterns they observed on the
living room floor in the course of their investigation. Nor would
such consideration have been expected in 1986, because the state
of the art in fire investigation had not come to fully recognize
flashover at that time.

*****

All of the above testimony [Defendant Fatchett’s trial testimony
evaluating evidence from the fire and opining that the fire was
intentionally set] can be shown by today’s standards to have been
false and misleading, albeit without malicious intent. . . .

*****

The State’s experts had no way of knowing that their interpretation
of the burn patterns at the Gavitt residence was without any
scientific validity because, at the time of the trial, those
interpretations were, in fact, generally accepted by most fire
investigators, including your affiant. The misinterpretation was
bolstered by the incorrect laboratory analysis performed by Mr.
DeVries. The state’s fire investigators “expectations” were not
properly “calibrated.” They expected the confined fire in the
Gavitt residence to behave like an unconfined fire. Because the
fire did not meet their expectations of normal fire behavior, they
incorrectly determined the fire to be incendiary.

An experienced fire investigator that Gavitt’s defense attorney consulted
with in 1985 also provided an affidavit which was attached as an exhibit to
Gavitt’s motion for relief. Mr. Churchwell, like Mr. Lentini, stressed that “the
world of fire science is vastly different today than it was in 1985;” that the way he
“would have viewed the fire scene in 1985 is completely different from the way”
he “would view the same scene today;” and “the advancements in fire science
would enable [him] to have far better insights and be wary of false findings
today.” Mr. Churchwell, like Mr. Lentini, stated that he subscribed to the same
beliefs that science has now proven to be false; that he can say now that Gavitt
was falsely convicted; but could not have reached that conclusion in 1985-86
when he was consulting with defense counsel:
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 8

Well into the 1980’s, the arson investigation profession believed
that things like floor burn patterns, low burning, deep charring and
alligatoring were automatic indicators of arson: I subscribed to
those beliefs at one time as well. But in the 1990s, with a wider
understanding of the concept of flashover and the emergence of
NFPA 921, the profession grew up and began to embrace the rigors
of actual science. Upon doing so, the open-minded among us
discovered that the old indicators that we thought were automatic
markers of arson were in fact not. This led to the realization that
each of us – investigators who had worked in the 1970s and 1980s
– had misread many fire scenes, possibly leading to the conviction
of innocent people. I have no doubt in my mind that David Gavitt
is one such falsely-convicted person. I can say this knowing what
I know today, but such a conclusion would have been impossible
for me to make in 1985-86 (when Mr. Kolenda consulted with me)
because the profession had yet to become enlightened to the errors
of the old ways of arson investigation at that time.

Mr. Churchwell also admitted that he “would likely have made the same
mistake” as those investigating the Gavitt home fire by failing to give adequate
consideration to possible accidental causes of that fire:

As I know from having worked many similar fires in the 1980s, the
fact that obvious sources of ignition and the presence of various
fuels (candles, ashtray, oil lamps, paneling, etc.) went largely
ignored at the trial is not all that surprising. In those days, fire
investigators would look first for pour patterns, alligatoring and
other such things, and upon finding them, we would assume the
fire was arson – so much so that we’d ignore far more obvious
accidental sources of the fire. I have no doubt that the
investigators who looked at the fire scene at the Gavitt home made
this mistake. As cautious and careful as I always try to be, I would
likely have made the same mistake upon seeing the Gavitt fire
scene in 1986: Fire investigators simply did not have enough
knowledge about the true nature of enclosed (compartment) fires at
that time. Today, years later, being wise to the many
advancements and the rigors of actual science that have finally
come to dominate the arson investigation profession, I can say that
the prosecution’s experts were blinded by the myths (alligatoring,
charred glass, low burning, etc.), and failed to give due deference
to far more obvious and likely accidental sources of the fire.

The parties stipulated to a stay of Gavitt’s motion, allowing the Ionia
Prosecutor’s Office time for scientific review of Gavitt’s claims. On June 6,
2012, after a thorough investigation, current Ionia County Prosecutor Ronald
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 9

Schafer, on behalf of the People of the State of Michigan, responded to Gavitt’s
motion.

Prosecutor Schafer acknowledged that, although “fire investigators”
involved in the original investigation “held to a common understanding within
fire investigation,” it is now known that that “was inaccurate, specifically
regarding the recognition and identification of unusual burn patterns in the floor
as definitive evidence of ignitable liquid pour patterns. Unfortunately, during that
time period many fire investigators did not understand the phenomena of
flashover and post-flashover and their effects on the production of unusual burn
patterns in floors within compartments.” Prosecutor Schafer also acknowledged
that Gavitt had satisfied the requirements for a new trial.

[T]he Peoples [sic] recent investigation confirms the 1985 findings
which found the presence of accelerants on the carpet samples
introduced at trial can no longer be independently verified as
having a presence of ignitable liquids, specifically gasoline.
Therefore, the parameters for meeting the legal requirement for a
new trial are not disputed.

Despite an admission that “three independent analyses of the evidence
suggest there was likely no gasoline on the carpet samples taken out of the Gavitt
house in 1985,” Prosecutor Schafer emphasized that “there are still a great deal of
questions surrounding this case which raise significant questions.” “Still today,
these unanswered questions linger when looking at the case on the whole, even in
light of the acknowledged findings in this response. In fact, this is the exact type
of case that would have remained open had it not been prosecuted earlier; the type
of case where justice would demand that it stay open.” Nonetheless, Prosecutor
Schafer acknowledged, “it does not change the fact that fire investigation has
advanced in the twenty-seven years since this fire.”

Prosecutor Schafer identified some of those fire investigation advances
and explained why, in light of those advances, Gavitt cannot be retried.

In particular, our understanding of flashover, post-flashover and
the production of unusual burn patterns in floors, potentially
identified as pour patterns, is different today than in 1985. Testing
of materials in fire cases has also advanced, with more
sophisticated instrumentation and analysis. Consequently, there is
new evidence in this case and [Gavitt] is entitled to a new trial. As
outlined, based on today’s understanding of fire dynamics and the
evolved level of fire investigation, this fire incident would likely
be classified as undetermined and consequently the People will not
be able to retry [Gavitt] . . . . there is only one thing known with
certainty, as of today, this case involves a fire of undetermined
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 10

origin and cause. Having no laboratory verification of the
presence of an accelerant, combined with what the People now
know through scientific research and testing regarding flashover
and post-flashover compartment fires, and the production of
unusual burn patterns in the floor, the determination that an
ignitable liquid (gasoline) was used to initiate the fire at the Gavitt
residence cannot be verified. As a result, this is a case this office
could not charge as arson based on the evidence available today.
However, this is also a case that, if it was new today, this office
would not close. There are simply too many questions, questions
which may never be answered. Ultimately, this remains a case in
which the lives of three innocent people were taken by a fire that
can only be classified as having an undetermined origin and cause.

On June 6, 2012, the People of the State of Michigan and Gavitt stipulated
that Gavitt’s motion for relief from judgment be granted, that all charges against
Gavitt be immediately dismissed, and that the Court order his immediate release
from the custody of the Michigan Department of Corrections.

R. 93, Opinion at 2–11, Page ID 3006–15 (citations omitted) (emphasis in original).

Following his release from prison, Gavitt filed the instant action, alleging that his
wrongful conviction was not merely the product of a tragic but innocent misunderstanding of
scientific evidence. In an eleven-count, 59-page complaint, he asserted claims against numerous
defendants under state and federal law. Gavitt contends that members of the prosecution team—
attorneys and law enforcement officials denied him a fair trial by conducting an incomplete
investigation, misrepresenting evidence, and failing to disclose exculpatory evidence. The
district court dismissed Gavitt’s state law claims sua sponte, declining to exercise supplemental
jurisdiction under 28 U.S.C. § 1367(c). Next, after conducting a hearing on defendants’ motions
to dismiss or for judgment on the pleadings, the court issued orders on December 15, 2014,
dismissing Gavitt’s claims against all defendants. However, Gavitt was permitted to file an
amended complaint against the Estate of DeVries. The Estate’s motion to dismiss the amended
complaint was denied on August 24, 2015.

When the Estate filed its notice of appeal, the district court stayed further proceedings
below, pending resolution of the interlocutory appeal. The court also certified its dismissals of
the claims against the other defendants as a final judgment under Rule 54(b) so that Gavitt could
pursue his appellate rights in conjunction with the Estate’s interlocutory appeal.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 11

II. ESTATE’S APPEAL (No. 15-2136)

A. Appellate Jurisdiction2

The Estate’s appeal challenges an interlocutory ruling that would not ordinarily be
subject to immediate review. However, a pretrial order denying qualified immunity is
immediately appealable under the collateral order doctrine if it implicates only questions of law.
Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014); McDonald v. Flake, 814 F.3d 804, 812–
13 (6th Cir. 2016). Where, as here, qualified immunity is raised and denied at the pleading stage,
and the district court was obliged to accept as true all well-pled factual allegations in the
complaint, the defendant ordinarily cannot challenge on interlocutory appeal the district court’s
acceptance of those facts. See McDonald, 814 F.3d at 812–13. If the defendant challenges the
lower court’s determination of the sufficiency of the evidence supporting the plaintiff’s claim,
then something other than a pure issue of law is presented and appellate jurisdiction is lacking.
See DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604, 609–10 (6th Cir. 2015).

Gavitt’s amended complaint sets forth one claim against the Estate of DeVries. In short,
it alleges that DeVries “either intentionally or with deliberate indifference and/or with reckless
disregard for the truth” . . . “falsely reported and testified” that carpet samples taken from the
living room of Gavitt’s house would not burn without adding an accelerant, and that
chromatographic analysis of the carpet samples showed residues of highly evaporated gasoline.
R. 79, Amended Complaint ¶¶ 23, 26, 51, Page ID 2530, 2536. To the extent the claim is
premised on DeVries’ testimony, the district court ruled that DeVries enjoys absolute immunity.
To the extent the claim is premised on pretrial investigatory acts by DeVries, the court held
DeVries is not entitled to absolute immunity. This ruling is not challenged on appeal.

In response to DeVries’ assertion of qualified immunity, the district court held that,
accepting Gavitt’s allegations as true, he has adequately stated a claim for knowing fabrication of
false and misleading test reports that contributed to a violation of Gavitt’s clearly established

2
Gavitt has not moved for dismissal of the appeal for lack of appellate jurisdiction, but he has preserved the
objection. Moreover, the court is always obliged to assure itself of its own jurisdiction before proceeding. See Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998).
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 12

civil rights. The Estate insisted that these allegations need not be accepted as true because they
are conclusively contradicted by the public record, but the court rejected the argument:

Even assuming, arguendo, that the Court was inclined to accept Defendant’s
interpretation of DeVries’ conduct based on the extensive public record in this
case, there is a plethora of evidence supporting the opposite conclusion. In fact,
both of the experts retained in connection with Gavitt’s motion for relief from
judgment in the State court concluded that the gas chromatographs did not
indicate the presence of gasoline. While far from dispositive of DeVries’ liability,
the court is hard-pressed to imagine a scenario less deserving of qualified
immunity at the pleadings stage.

R. 93, Opinion at 16–17, Page ID 3020–21 (citations omitted). The court thus determined that
the public record does not conclusively establish that Gavitt’s claim is implausible.

On appeal, the Estate maintains that Gavitt should not be permitted to conclusorily allege
that DeVries “intentionally” fabricated or misrepresented any evidence. The Estate contends the
district court erred by accepting the truthfulness of allegations that “are directly contradicted by
undisputable public records.” The Estate argues the record shows, at worst, that DeVries made a
mistake, and since DeVries is deceased, there is no possibility of developing additional evidence
of his subjective state of mind.

It may be unlikely that discovery will uncover any evidence that the falsity or inaccuracy
in DeVries’ results were the product of intentional deceit or recklessness. Yet, by inviting the
reviewing court to predict or speculate about potential factual development, the Estate asks us to
do precisely what we may not do. Consider the following guidance from McDonald:

Thus, we may decide an appeal challenging the district court’s legal
determination that the defendant’s actions violated a constitutional right or that
the right was clearly established. We may also decide an appeal challenging a
legal aspect of the district court’s factual determinations, such as whether the
district court properly assessed the incontrovertible record evidence. And we may
decide, as a legal question, an appeal challenging the district court’s factual
determination insofar as the challenge contests that determination as “blatantly
contradicted by the record, so that no reasonable jury could believe it.”

We may not, however, decide an appeal challenging the district court’s
determination of “‘evidence sufficiency,’ i.e., which facts a party may, or may
not, be able to prove at trial.” Because such a challenge is purely fact-based,
lacking any issue of law, it “does not present a legal question in the sense in
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 13

which the term was used in Mitchell [v. Forsyth, 472 U.S. 511 (1985)],” and is
therefore not an appealable “final decision” within the meaning of 28 U.S.C.
§ 1291. These types of prohibited fact-based (“evidence sufficiency”) appeals
challenge directly the plaintiff’s allegations (and the district court’s acceptance) of
“what [actually] occurred[ ] or why an action was taken or omitted,” who did it,
or “nothing more than whether the evidence could support a [jury’s] finding that
particular conduct occurred.”

McDonald, 814 F.3d at 812–13 (citations omitted) (emphasis added).

Thus, we lack authority to decide an appeal challenging the district court’s determination
that Gavitt may be able to adduce evidence supporting the allegation that DeVries acted
knowingly or recklessly. The Estate’s appeal challenges the district court’s acceptance of the
adequacy of Gavitt’s allegations of why an action was taken, i.e., why DeVries reported
erroneous test results. It thus represents a “prohibited fact-based evidence sufficiency” appeal
subject to dismissal for lack of appellate jurisdiction.

While the likelihood that discovery will reveal evidence of intentional or reckless
wrongdoing by DeVries may be minimal, it is not inconceivable. And although parts of the state
court record tend to undermine Gavitt’s claim against the Estate, we cannot say those parts so
blatantly and conclusively contradict Gavitt’s allegations that, upon further development of the
record, no reasonable jury could find in his favor. This appeal is thus distinguishable from those
addressed in Scott v. Harris, 550 U.S. 372, 378–80 (2007), and Chappell v. City of Cleveland,
585 F.3d 901, 906 (6th Cir. 2009). In each of those cases, denial of qualified immunity at the
summary judgment stage was reversed because the plaintiff had failed to adduce evidence
creating a triable fact issue on an essential element of a claim. Here, in contrast, at the pleading
stage, Gavitt’s allegation of DeVries’ culpable state of mind is partially refuted by the partially
developed factual record. As the district court observed, however, the state court record also
lends support to Gavitt’s claim. The extant record is neither so complete nor so clear as to
permit a ruling that the Estate’s evidence sufficiency appeal presents a pure legal issue.
It follows that we lack jurisdiction to decide the Estate’s appeal and the appeal must be
dismissed.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 14

III. GAVITT’S APPEAL (No. 15-2434)

A. Jurisdiction

Despite our dismissal of the Estate’s interlocutory appeal in No. 15-2136, we retain
jurisdiction over Gavitt’s appeal challenging the dismissals of his claims against the other
defendants. Although the dismissal of claims against some but not all the defendants would not
ordinarily constitute a final judgment, the district court has certified all three orders of dismissal
that are the subject of this second appeal as a final judgment under Fed. R. Civ. 54(b). The
district court specifically certified that there is no just reason for delay of appeal. Yet, again,
although the certification has not been challenged, the court must still satisfy itself that the
certification was proper. Otherwise, appellate jurisdiction is lacking. Lowery v. Fed. Express
Corp., 426 F.3d 817, 820 (6th Cir. 2005).

The Rule 54(b) certification mechanism is designed to “‘strike a balance between the
undesirability of piecemeal appeals and the need for making review available at a time that best
serves the needs of the parties.’” Id. (quoting Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60
(6th Cir. 1986)). The district court’s certification is comprised of two components: entry of final
judgment as to one or more but fewer than all of the claims or parties; and determination that
there is no just reason for delay. The first component is reviewed de novo; the second for abuse
of discretion. Id. at 821.

As to the first component, considering the grounds on which the district court dismissed
the claims against most defendants, the dismissed claims are distinctly separable from the
unresolved claim against the Estate in that they involve separate actions taken by different actors
with different roles in Gavitt’s criminal case than the role played by DeVries as a lab technician.
In other words, they involve separate claims based on different “operative facts.” See id. In this
regard, we find no error in the court’s denominating the dismissals as “final.” That is,
irrespective of how the record might develop in further proceedings on the unresolved claim
against the Estate, we foresee no grounds on which the dismissals of claims against other
defendants—which ultimately remain undisturbed in this appeal—would be subject to reopening.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 15

The second component—no just reason for delay—required the district court to consider
the interests of judicial administration as well as the equities of the parties. Id. In reviewing for
abuse of discretion, the appellate court does not reweigh the equities or reassess the facts, but
ensures that the lower court’s weighing of interests was sound and supported by the record. Id.
Relevant considerations are:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in set-off against the
judgment sought to be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense and the like.

Id. at 821–22 (quoting Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030 (6th Cir.
1994)).

Review of the district court’s certification order discloses no abuse of discretion. The
court appropriately considered the relationship between the dismissed claims and the unresolved
claim against the Estate. The court also acknowledged the importance of judicial economy,
recognizing that the Estate’s interlocutory appeal created an opportunity for consolidated
appellate review of the dismissals of related claims stemming from the same alleged civil rights
violations. Considering that the actions complained of occurred over 30 years ago, the “no just
reason for delay” consideration is infused with a certain exigency. Any step that potentially
moves the parties closer to a fair and final adjudication is a good step.

Accordingly, we uphold the district court’s certification and determine that we have
jurisdiction to decide Gavitt’s appeal.

B. Standard of Review

At issue in this appeal are three rulings by the district court, all issued on December 15,
2014: (1) Opinion and Order Granting Defendants Fatchett’s and Kalman’s Motion to Dismiss,
R. 65, Page ID 2330; (2) Opinion and Order Granting Motion to Dismiss or for Summary
Judgment Filed by Defendants Ionia County, Gary M. Gabry, Raymond P. Voet, Ronald J.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 16

Schafer, and Gail Benda, R. 67, Page ID 2379; and (3) Opinion and Order Granting Defendants
City of Ionia’s, Kenneth Voet’s, and Randall Klein’s Motion for Judgment on the Pleadings or in
the Alternative for Summary Judgment, R. 68, Page ID 2417.3

Each of the rulings, under Fed. R. Civ. P. 12(b)(6) and 12(c), is reviewed de novo under
the same general standards. STEW Farm, Ltd. v. Nat. Res. Conservation Serv., 767 F.3d 554,
558 (6th Cir. 2014). The complaint is viewed in the light most favorable to Gavitt; the
allegations in the complaint are accepted as true, and all reasonable inferences are drawn in his
favor. Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir. 2008). However, “a legal conclusion
couched as a factual allegation” need not be accepted as true. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). Gavitt’s obligation to provide the “grounds” for the claimed
entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. The factual allegations must “raise a right to
relief above the speculative level.” Id. The complaint must state a claim that is plausible on its
face, i.e., the court must be able to draw a “reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This “plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly,
550 U.S. at 557).

Assessment of the facial sufficiency of the complaint must ordinarily be undertaken
without resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d
1102, 1104 (6th Cir. 2010). If a court does consider material outside the pleadings, the motion to
dismiss must be treated as a motion for summary judgment under Rule 56 and all parties must be
given a reasonable opportunity to present all material pertinent to the motion. Id. However, a
court may consider exhibits attached to the complaint, public records, items appearing in the
record of the case, and exhibits attached to defendant’s motion to dismiss, so long as they are

3
The district court adjudicated each of these motions under Fed. R. Civ. P. 12 rather than Fed. R. Civ. P.
56. R. 65, Opinion at 2, Page ID 2331; R. 67, Opinion at 2, Page ID 2380; R. 68, Opinion at 2, Page ID 2418.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 17

referred to in the complaint and are central to the claims contained therein, without converting
the motion to one for summary judgment. Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th
Cir. 2015); Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

Qualified immunity, if it applies, is a defense not just against liability, but against suit
itself. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Hence, the immunity questions should be
resolved as early in the litigation as possible. Id. Yet, if the qualified immunity questions
presented are fact-intensive, the record may not be adequately developed to evaluate the defense
at the pleading stage under Rule 12(b)(6). See Wesley v. Campbell, 779 F.3d 421, 433–34 (6th
Cir. 2015).

Qualified immunity shields government officials from liability for civil damages if their
actions did not violate clearly established statutory or constitutional rights of which a reasonable
person would have known. Id. The court must therefore determine (1) whether the facts alleged
by the plaintiff make out the violation of a constitutional right and (2) whether the right at issue
was “clearly established” at the time of the alleged violation. Pearson, 555 U.S. at 232. “The
court may address these prongs in any order, and if the plaintiff cannot make both showings, the
officer is entitled to qualified immunity.” Brown v. Lewis, 779 F.3d 401, 412 (6th Cir. 2015)
(citing Pearson, 555 U.S. at 236). Qualified immunity “‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the
law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343
(1986)). Qualified immunity applies irrespective of whether the official’s error was a mistake of
law or a mistake of fact, or a mistake based on mixed questions of law and fact. Pearson,
555 U.S. at 231.

Since defendants raised the qualified immunity defense, Gavitt bears the burden of
showing that defendants are not entitled to qualified immunity. Johnson v. Moseley, 790 F.3d
649, 653 (6th Cir. 2015). At the pleading stage, this burden is carried by alleging facts making
out a plausible claim that defendants’ conduct violated a constitutional right that was clearly
established at the time of the violation. Id. To satisfy this requirement, the right allegedly
violated must have been clearly established in a “particularized” sense, such that a reasonable
official confronted with the same situation would have known that his actions would be in
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 18

violation of that right. Brosseau v. Haugen, 543 U.S. 194, 199–200 (2004); Johnson, 790 F.3d at
653. “Unless the plaintiff’s allegations state a claim of violation of clearly established law, a
defendant pleading qualified immunity is entitled to dismissal before the commencement of
discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (observing that “bare allegations . . . should not suffice to subject government
officials either to the costs of trial or to the burdens of broad-reaching discovery.”)).

C. Count II Claim for Intentional Misrepresentation of Evidence
(Against Defendants Fatchett and Kalman)

In his complaint, Gavitt asserted various civil rights claims against numerous persons
involved in the prosecution of the criminal charges against him. Count I of his original
complaint asserted a claim for misrepresentation of evidence exclusively against John E.
DeVries, deceased, a former Michigan State Police forensic lab technician. That claim, later
embodied in an amended complaint, is the subject of appeal No. 15-2136, addressed above.
Count II sets forth a civil rights claim under 42 U.S.C. § 1983 for intentional misrepresentation
of evidence against former Michigan State Police Detectives John P. Fatchett and John J.
Kalman, Jr., who participated in the investigation of the house fire. Fatchett and Kalman moved
to dismiss the claim under Rule 12(b)(6) and the district court granted the motion. On appeal,
Gavitt maintains that the dismissal was premature.

Count II alleges that Fatchett and Kalman misrepresented evidence in reports and
testimony, resulting in a denial of due process and contributing to Gavitt’s wrongful conviction
and imprisonment. R. 1, Complaint at 41–42, Page ID 41–42. In essence, the claim is that
Fatchett and Kalman misrepresented that “they had considered and excluded all accidental
causes of the house fire, when in fact they had not even attempted to consider and eliminate all
accidental causes of the house fire before they erroneously presumed that the fire was caused by
incendiary means.” Id. at 41, Page ID 41. To the extent this claim implicates testimony given by
the officers in Gavitt’s preliminary examination and trial, the district court held that Fatchett and
Kalman are entitled to absolute immunity, citing Moldowan v. City of Warren, 578 F.3d 351 (6th
Cir. 2009). Gavitt does not challenge this part of the ruling.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 19

To the extent Count II can be construed as alleging that defendants Fatchett and Kalman
violated Gavitt’s due process rights by continuously failing to correct their misrepresentation
during the 26-year period of his wrongful imprisonment, the district court viewed the allegations
as a claim for post-conviction failure to disclose exculpatory evidence (i.e., Brady materials).
The court held that due process does not impose on the prosecution a post-conviction obligation
to disclose exculpatory evidence, citing District Attorney’s Office for Third Judicial District v.
Osborne, 557 U.S. 52, 68–69 (2009). Gavitt has not challenged this part of the ruling.

Finally, the district court construed Count II as challenging the adequacy of defendants
Fatchett’s and Kalman’s pretrial fire investigation, i.e., their failure to consider and eliminate all
possible accidental causes of the house fire before investigating for arson. The district court held
that such a claim does not make out a violation of a clearly established constitutional right and
held that defendants are entitled to qualified immunity. The court relied on Yancey v. Carroll
Cty., Ky., 876 F.2d 1238, 1245 (6th Cir. 1989) (holding that officers were entitled to rely on the
judicial officer’s finding of probable cause in issuing the search warrant unless they knowingly
made false statements to obtain the warrant, and that a challenge to the adequacy of the officer’s
investigation does not rise to level of clearly established constitutional violation); and Buchanan
v. Metz, 6 F. Supp. 3d 730, 757–59 (E.D. Mich. 2014) (holding that the Sixth Circuit, like most
circuits, has not recognized a substantive due process claim based on an inadequate
investigation); and Latta v. Chapala, 221 F. App’x 443, 444–45 (7th Cir. 2007) (holding that
there is no constitutional duty to do a better investigation and that a decision not to conduct a
more thorough investigation does not invade an accused’s rights).

Gavitt does not challenge the above authorities, but argues that the district court
mischaracterized his claim. He emphasizes that Count II complains not that the investigation
was not adequate, but that defendants, in their investigative report, falsely represented that it was
adequate. This alleged misrepresentation of the completeness of their investigation is said to
support Gavitt’s claim that Fatchett and Kalman are liable for contributing to the denial of his
due process rights. In support, Gavitt cites Sykes v. Anderson, 625 F.3d 294, 306 (6th Cir. 2010)
(knowingly falsifying material facts necessary to establish probable cause to prosecute innocent
person is unconstitutional); Hinchman v. Moore, 312 F.3d 198, 205–06 (6th Cir. 2002) (same);
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 20

and Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006) (constitutional rights are
violated when evidence is knowingly fabricated and a reasonable likelihood exists that the false
evidence affected the decision of the jury).

The specific alleged misrepresentation must be considered in context. The representation
Gavitt focuses on appears in Kalman’s March 1985 investigation report:

D/SGT. JOHN FATCHETT and undersigned officer, after observing the damage
to the residence and eliminating all accidental and natural causes, centered the
investigation to the living room area of the residence.

R. 31-5, Kalman Report at 5, Page ID 890 (emphasis added). Gavitt now focuses on the word
“all” and contends the statement is inaccurate. That is, because we now know that methods of
fire investigation used in 1985 sometimes produced unreliable and misleading results, as they did
in Gavitt’s trial (i.e., the erroneous conclusion that an accelerant was used to start the fire), Gavitt
infers that Fatchett’s and Kalman’s examination of accidental and natural causes must not have
been complete. Gavitt alleges that Fatchett and Kalman “had not even attempted to consider and
eliminate all accidental causes of the house fire before they erroneously presumed that the fire
was caused by incendiary means.” R. 1, Complaint at 41, Page ID 41. Because Gavitt has
alleged that defendants intentionally misrepresented the completeness of their investigation, he
contends his allegations pass muster under Rule 12(b)(6) and he is entitled to discovery.

The above quoted statement appears at the top of page 5 of Kalman’s report, which
originally consisted of eleven pages, and was later supplemented with eight more pages of
additional findings as the investigation continued.4 The statement appears immediately after
three full pages of single-spaced text detailing the officers’ inspection of the Gavitt residence the
day after the house fire—including the construction, ventilating system, electrical service,
appliances, exterior condition, and interior observations. In other words, the summary statement
indicating that Fatchett and Kalman had observed the damage to the residence and eliminated all
accidental and natural causes did not stand alone; it was a summary of three pages of findings.

4
Gavitt does not contest defendants’ position that the public record compiled in state court when he sought
relief from judgment is properly considered part of his complaint for purposes of evaluating the complaint under
Rule 12(b)(6). See Bassett, 528 F.3d at 430.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 21

Further, the summary statement was not provided to explain, as Gavitt alleges, “why they
erroneously presumed that the fire was caused by incendiary means,” but rather why their
investigation turned to examination of the burn patterns in the living room. It was the
examination of the living room burn patterns that led Kalman to preliminarily conclude (as of the
date of the original report) that “the origin of the fire was in the middle of the living room and
because of the spread of a flammable liquid, it fed back into the hallway.” R. 31-5, Kalman
Report at 5–6, Page ID 890–91. The investigation remained ongoing. Id. at 11, Page ID 896.
Kalman’s preliminary opinion later found additional support in flame spread tests conducted on
March 22, 1985 in the Michigan State Police lab (finding that living room carpet samples ignited
and burned longer after gasoline was added), see id. at 12–14, Page ID 897–99, and in the
chromatographic test results reported in John DeVries’ April 4, 1985 lab report (finding living
room carpet samples contained residues of highly evaporated gasoline), see R. 89-3, DeVries
Lab Report, Page ID 2757.

Reading the one-sentence statement at the heart of this claim in context rather than in
isolation thus undermines the implied allegation that Kalman’s statement that he and Fatchett
“eliminated all accidental and natural causes” was a statement of “material” fact necessary to
Gavitt’s prosecution and conviction. That is, the statement described one preliminary step in the
investigation that led to further investigation of the cause of the fire. The continuing
investigation yielded other evidence tending to support the conclusion that the fire was
intentionally caused with use of a liquid accelerant. Even if the statement were shown to be
false, and even if it were shown to have been made by Kalman with knowledge that he and
Fatchett had not actually eliminated every possible accidental cause of the fire before
investigating the possibility of arson, the notion that this statement, in a preliminary report, apart
from the testimony and physical evidence presented at trial, played such a material role in the
jury’s verdict as to make out a denial of due process is simply not plausible. See Iqbal, 556 U.S.
at 678–79. Gavitt’s obligation to provide the “grounds” for the claimed entitlement to relief
“requires more than labels and conclusions;” the factual allegations must “raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 22

Moreover, the conclusion that Gavitt’s reliance on a single arguably inaccurate statement
in a 19-page investigation report is too speculative to be actionable as a due process violation is
corroborated by other items in the public record. The expert affidavits that supported Gavitt’s
own motion for relief from judgment in state court (summarized above at 5–9) acknowledge that
defendants’ flawed investigation and erroneous interpretation of the physical evidence were not
the product of intentional wrongdoing, but of a mistaken understanding consistent with the then-
accepted fire investigation standards.

Indeed, the affidavits of Gavitt’s own experts John Lentini and James Churchwell are
telling. Describing the quality of fire investigation methods in 1985, Lentini characterized them
as “inconsistent and largely unscientific.” R. 31-2, Lentini Aff. at ¶ 15, Page ID 678. Lentini
acknowledged that “the State’s witnesses may have believed they were testifying truthfully,” id.
at ¶ 27, Page ID 682, and he characterized their conclusions, reviewed under today’s standards,
as “false and misleading, albeit without malicious intent,” R. 31-3, Lentini Aff. at ¶ 70, Page ID
713. Lentini also acknowledged that the gas chromatography testing method used in 1985, the
same technology used in Lentini’s own laboratory at that time, provided “far less information”
than the technology typically used today. Id. at ¶ 83, Page ID 720. He viewed the fire
investigators’ manner of conducting “flame test experiments” as demonstrating “their complete
lack of understanding of post-flashover fire behavior”—flashover being a concept that was not
generally accepted until the 1990s. Id. at ¶¶ 91–92, Page ID 724.

Churchwell said he was in “100 percent” agreement with Lentini’s affidavit. R. 31-3,
Churchwell Aff. at ¶ 9, Page ID 859. And Churchwell, like Lentini, characterized the
conclusions drawn by the prosecution’s fire investigators as a mistake: “As cautious and careful
as I always try to be, I would likely have made the same mistake upon seeing the Gavitt fire
scene in 1986: Fire investigators simply did not have enough knowledge about the true nature of
enclosed (compartment) fires at that time.” Id. at ¶ 12, Page ID 861.

Thus, the assessment of Gavitt’s own experts clearly indicates that defendants Fatchett’s
and Kalman’s investigation of the house fire was not inconsistent with the generally accepted fire
investigation methods and standards of the time. Their description of the investigation, viewed
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 23

in the light most favorable to Gavitt, might be viewed as supporting, at worst, an inference of
negligence, but falls far short of suggesting intentional or reckless misrepresentation.

To withstand scrutiny under Rule 12(b)(6), the complaint must state a claim that is
plausible on its face, not merely possible. This means that the court must be able to draw a
reasonable inference that defendants are liable for the misconduct alleged. See Iqbal, 556 U.S. at
678. While Count II of Gavitt’s complaint facially alleges that defendants Kalman and Fatchett
knowingly misrepresented the adequacy of their investigation, it does not contain factual
allegations that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
In other words, the facts alleged stop short of the line between possibility and plausibility.
Further, the public record implicated by the claim, which is appropriately considered under Rule
12(b)(6) based on Gavitt’s reference thereto in his complaint, see Bassett, 528 F.3d at 430, tends
to undermine the reasonableness of any inference that defendants knowingly made any material
misrepresentation. Because Gavitt’s complaint, viewed in conjunction with the public record,
does not include “enough fact to raise a reasonable expectation that discovery will reveal
evidence” of the claimed constitutional violation, it fails to meet the plausibility standard.
See Twombly 550 U.S. at 556.

In granting Fatchett’s and Kalman’s motion to dismiss, the district court cited Latta v.
Chapala, a Seventh Circuit case affirming the dismissal of similar civil rights claims stemming
from what was later revealed to be a flawed arson investigation. After observing that “there is no
constitutional duty to ‘do a better investigation,’” the court made the following remarks that are
no less fitting in this case:

We acknowledge that the methods that arson investigators used in the
1980s and 1990s have come under challenge; most experts today would use
different approaches and therefore could reach different conclusions. . . . Using
the methods of the 1980s during the 1980s does not violate the Constitution. The
criminal process, like other human endeavors, is imperfect. Science is imperfect
too; techniques of arson investigation and analysis have advanced a good deal in
the years since the fire at the Lattas’ home. Perhaps an injustice has been done, as
the Lattas ardently maintain. Section 1983 does not, however, supply monetary
damages for every conviction that with the benefit of hindsight seems weaker to
the federal judiciary than it did to the prosecutor, jury, and state judiciary.

Latta, 221 F. App’x at 444–45.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 24

Gavitt’s Count II claim against defendants Fatchett and Kalman suffers from the same
infirmities as the claim addressed by the Seventh Circuit in Latta. Gavitt has failed to allege
facts that raise the right to relief for denial of due process above the speculative level. It follows
that Gavitt has not stated a plausible claim of entitlement to relief and that defendants’ motion to
dismiss Count II was properly granted.

D. Count III Claim for Conspiracy to Violate Due Process Rights
(Against Defendants Gabry, Voet, Klein, Kalman and Fatchett)

In Count III, Gavitt asserts a claim against former Ionia County Prosecutor Gary M.
Gabry, two former City of Ionia Police Officers, Police Chief Kenneth E. Voet and Sgt. Randall
W. Klein, and Michigan State Police Detectives Fatchett and Kalman. Based on a meeting of
these five defendants on March 12, 1985, referred to as a “skull session,” Gavitt alleges they
conspired to deny him due process. Specifically, he alleges “they all mutually agreed, without
any judicial review, laboratory analysis, scientific basis, or reasonable belief, and in willful and
wanton disregard for the truth,” that the house fire was set by him. R. 1, Complaint ¶ 234, Page
ID 43. The district court identified various deficiencies in this claim and dismissed it as to all
five defendants.

In evaluating the district court’s rulings on the conspiracy claim, we note that the object
of the allegedly unlawful conspiracy revolves largely around defendants’ reliance on evidence
they allegedly knew to be false, but evidence which, as seen above, was generally considered to
be reliable under fire investigation standards generally accepted in the 1980s, as acknowledged
by Gavitt’s own experts.

1. Prosecutor Gabry

The district court undertook a lengthy analysis of Gabry’s entitlement to absolute
immunity. Insofar as Count III can be construed as complaining of conduct with functional ties
to the judicial process, the court held that Gabry is absolutely immune, citing Koubriti v.
Convertino, 593 F.3d 459, 467–68 (6th Cir. 2010). Specifically, Gabry was held to be immune
from liability for knowing use of false testimony and non-disclosure of exculpatory information
in judicial proceedings. Gavitt has not challenged this ruling.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 25

Insofar as Count III can be construed as alleging a conspiracy to refrain from disclosing
exculpatory evidence after Gavitt’s conviction, the court held there is no such post-conviction
disclosure obligation, citing Osborne, 557 U.S. at 68–69. Gavitt has not challenged this part of
the ruling.

To the extent Count III alleges that Gabry’s participation in the March 12, 1985 “skull
session” evidences involvement in an investigatory conspiracy, the district court recognized that
prosecutorial immunity does not apply. But the court held that no valid claim was stated against
Gabry based on the same authorities (Yancey, Buchanan and Latta) and the same reasoning that
it applied to the intentional misrepresentation claim against Fatchett and Kalman, addressed
supra at 21–22. Gavitt challenges this part of the ruling only by arguing that absolute
prosecutorial immunity does not apply to Gabry’s affording of legal advice to the police, citing
Koubriti, 593 F.3d at 467, and that his allegations are sufficient to warrant discovery.

Again, Gavitt’s argument is off target and unavailing. For the reasons set forth above at
pp. 22–27, the claim that Gabry conspired with Fatchett and Kalman on March 12 to investigate
the possibility that the house fire was caused by arson does not state a plausible claim for
conspiracy to violate Gavitt’s civil rights. Again, the extant evidence, from the public record and
Gavitt’s own experts, supports the conclusion only that the decision to investigate potential non-
accidental causes of the fire was based on Fatchett’s and Kalman’s inspection of the premises
and their observations of the burn patterns in the house. While their investigation and
interpretation of their findings now appear to have been flawed, they also appear to have been
consistent with generally accepted methods and standards at the time. The notion that Gabry
participated in a nefarious plot to intentionally subvert justice finds no support in the extant
record. Gavitt’s arguments about potential incriminating fruits of discovery are too speculative
to justify disturbing the dismissal of this claim against Gabry.

2. Fatchett and Kalman

The district court dismissed the Count III conspiracy claim against Fatchett and Kalman
on much the same grounds that applied to the claim against Gabry. R. 65, Opinion at 20–24,
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 26

Page ID 2349–53. One aspect of its ruling, as challenged by Gavitt on appeal, deserves
additional attention.

To the extent Fatchett and Kalman are alleged to have conspired with Gabry to not
disclose exculpatory evidence (e.g., evidence that the Michigan State Police crime lab had
experienced contamination of fire debris samples and false-positive arson test results, see R. 1,
Complaint at 44, Page ID 44), the district court held the allegations failed to make out a violation
of a duty that Fatchett and Kalman owed to Gavitt. Citing D’Ambrosio v. Marino, 747 F.3d 378,
389–90 (6th Cir. 2014), the court held that the duty to disclose exculpatory evidence rests with
the prosecutor. Fatchett and Kalman would have fulfilled their obligation, the court held, by
disclosing apparently exculpatory evidence to Gabry. See D’Ambrosio, 747 F.3d at 389–90. The
court noted that if Fatchett and Kalman had, as alleged, conspired with Gabry not to disclose
such evidence to Gavitt, they must necessarily have disclosed their knowledge of the evidence to
Gabry, thereby satisfying their duty under Brady. Accordingly, the court held that Gavitt had
failed, in this regard, to state a plausible conspiracy claim against Fatchett and Kalman.

Gavitt contends the district court erred in this ruling. He insists that D’Ambrosio says
nothing about the officers’ liability for conspiracy. If Fatchett and Kalman conspired with Gabry
to suppress the exculpatory evidence and Gabry in fact failed to disclose the evidence to the
defense in Gavitt’s trial, the argument goes, then even though Gabry would be protected from
liability for the nondisclosure by prosecutorial immunity, Gabry and the officers could be liable
for their unlawful pretrial conspiracy.

Yet, even if Gavitt’s logic holds up, the requisite fact allegations are lacking. While
Gavitt alleged that defendants agreed to conceal the exculpatory evidence at the skull session, he
has included no specific factual support for the allegation. “Although circumstantial evidence
may prove a conspiracy, ‘[i]t is well-settled that conspiracy claims must be pled with some
degree of specificity and that vague and conclusory allegations unsupported by material facts
will not be sufficient to state such a claim under § 1983.’” Heyne v. Metro. Nashville Pub. Sch.,
655 F.3d 556, 563 (6th Cir. 2011) (quoting Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.
2003)). This pleading standard is “relatively strict.” Id. (quoting Feiger v. Cox, 524 F.3d 770,
776 (6th Cir. 2008)). The factual allegations underlying Gavitt’s § 1983 conspiracy claim are no
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 27

more specific than his allegations made in support of other claims that have already been deemed
insufficient to state a plausible claim for relief under the Twombly/Iqbal pleading requirements.
Because the factual allegations in the conspiracy claim against Fatchett and Kalman are similarly
deficient, it was also properly dismissed.

3. Voet and Klein

The Count III conspiracy claim against defendants Voet and Klein was dismissed by the
district court for reasons indistinguishable from those applicable to the same claim against
Fatchett and Kalman. And for the reasons discussed above, the dismissal of the conspiracy claim
against Voet and Klein must also be upheld. Accordingly, we affirm the district court’s
dismissal of the Count III conspiracy claim against all five defendants.

E. Count IV Claim for Failure to Disclose Exculpatory Evidence
(Against All MSP Defendants)

In Count IV, Gavitt alleged that the Michigan State Police defendants withheld material
exculpatory evidence (e.g., evidence that the MSP crime lab had experienced false-positive and
other unreliable arson test results, see R. 1, Complaint at 45, Page ID 45) at the time of his trial
and throughout the period of his imprisonment, in violation of his due process rights. The
district court dismissed this claim, citing D’Ambrosio, 747 F.3d 389–90, for the proposition that
these particular defendants satisfied their duty insofar as the evidence was impliedly (by virtue of
Gavitt’s Count III conspiracy claim) disclosed to Prosecutor Gabry, and citing Osborne,
557 U.S. at 68–69, for the proposition that there is no post-conviction disclosure obligation.

Gavitt challenges this ruling as to defendants Fatchett and Kalman, contending that
dismissal is premature and that the district court failed to view the allegations in the light most
favorable to him. Yet, again, Gavitt has failed to identify specific factual support for the
argument that the defendants “potentially failed” to share the exculpatory evidence with Gabry.
His claim of entitlement to relief on this basis thus remains speculative and insufficiently
supported to withstand the defendants’ motion to dismiss.

Nor is Gavitt’s attempt to narrow the holding of Osborne persuasive. In Osborne,
557 U.S. at 68, the Supreme Court noted that “nothing in our precedents” suggests that the
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prosecutor’s obligation to disclose Brady material to the defendant before trial continues after the
defendant is convicted and the case is closed. Gavitt has failed to cite any contrary authority. To
the extent due process could be deemed to include such an obligation, it is not yet a matter of
clearly established law and defendants are entitled to qualified immunity. It follows that the
district court did not err by dismissing Count IV.

F. Counts VI and VII Claims for Municipal Liability
(Against Gabry, Ionia County and City of Ionia)5

In Counts VI and VII, Gavitt alleged that Ionia County and the City of Ionia are liable for
the actions of defendants Prosecutor Gabry (and his successors) and Police Chief
Voet (and his successors), whose actions as final decision makers and official policy makers for
the County and City, respectively, were taken pursuant to official policies, practices or customs,
and violated Gavitt’s civil rights. The district court dismissed these claims. The court held that
Gabry and his successors, as county prosecutors enforcing criminal laws on behalf of the State of
Michigan, are entitled to Eleventh Amendment immunity for actions brought against them in
their official capacity, citing Cady v. Arenac Cty., 574 F.3d 334, 342–43 (6th Cir. 2009). The
court also held that Ionia County is not liable for actions allegedly taken by Gabry and his
successors in a particular prosecution because Gavitt did not allege that such actions were taken
pursuant to a policy attributable to the County, citing D’Ambrosio, 747 F.3d 387–88. Finally, the
court dismissed the claim against the City of Ionia on the grounds that Gavitt had failed to allege
facts establishing a causal link between the alleged violation of his due process rights and any
policy, practice, or custom of the City, citing Bright v. Gallia Cty., Ohio, 753 F.3d 639, 660 (6th
Cir. 2014).

Gavitt challenges these rulings on various grounds. Yet, to survive a motion to dismiss, a
§ 1983 claim for municipal liability based on actions taken pursuant to official policy, practice or
custom must include adequate allegations “(1) that a violation of a federal right took place,
(2) that the defendants acted under color of state law, and (3) that a municipality’s policy or
custom caused that violation to happen.” Id. at 660. Based on the analysis set forth above, it is
now clear that Gavitt has failed to meet the first of these three elements because he has failed to

5
Gavitt has not challenged the dismissal of his Count V claim in this appeal.
Nos. 15-2136/2434 Gavitt v. Born, et al. Page 29

allege a plausible claim for violation of his due process rights by the individual defendants.
Accordingly, the Count VI and VII official-capacity and municipal-liability claims were also
properly dismissed.

G. Wrap-Up

At this point, there can be no doubt that David Gavitt was convicted and imprisoned
based on evidence now known to be unreliable. While Gavitt, with hindsight, may seem to have
been “wronged,” he has failed to allege sufficiently specific facts to support his claims that any
of the defendants-appellees in this case acted with such culpable state of mind as to warrant relief
under § 1983. Due process guarantees a right to a fair trial, not perfection. Scott v. Mitchell,
209 F.3d 854, 881 (6th Cir. 2000). As the Seventh Circuit observed in Latta v. Chapala,
“[u]sing the methods of the 1980s during the 1980s does not violate the Constitution.” 221 F.
App’x at 445. The district court employed similar reasoning in concluding that defendants are
entitled to qualified immunity. The above analysis confirms the appropriateness of all dismissals
challenged in this appeal, No. 15-2434.

IV. CONCLUSION

In sum, the appeal presented in Case No. 15-2136, challenging the denial of the motion to
dismiss the amended complaint against the Estate of DeVries, is DISMISSED for lack of
appellate jurisdiction. As to the appeal presented in Case No. 15-2434, the district court’s
judgment dismissing all claims against the remaining defendants is AFFIRMED.