Richard Steiger v. Robert Hahn

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0001n.06
FILED
Case No. 16-2531 Jan 03, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RICHARD KEVIN STEIGER, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
ROBERT HAHN; MICHAEL A. ) MICHIGAN
CALDWELL; PATRICK BOYD; DELMAR )
PUTNAM; KEN MILLS, JR.; ALAN )
BURKE; BRADLEY SZATKOWSKI; )
JOSEPH BREWBAKER; ROBERT )
PASCHKE, )
)
Defendants-Appellees. )

BEFORE: CLAY, COOK, and WHITE, Circuit Judges.

COOK, Circuit Judge. Michigan law enforcement officers investigated a tip regarding

prescription pain-medication habits of then-Presque Isle County Prosecutor Richard Steiger that

culminated in the Michigan Attorney General’s Office (“AG’s Office”) charging him with one

count of fraudulently obtaining controlled substances. Finding that probable cause supported

charging and arresting Steiger and that qualified immunity shielded the officers, the district court

granted summary judgment and dismissed all federal claims with prejudice. It also dismissed the

remaining state-law claim without prejudice as better suited for resolution in state court. Steiger

appeals and we AFFIRM.
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I.

Tip Leads to Prescription-Use Review

In 2011, Steiger’s ex-wife contacted Robert Hahn, a Michigan State Police detective

working as part of the Huron Undercover Narcotics Team (“HUNT”), and alleged that Steiger

was “doctor shopping” to obtain large quantities of controlled substances. Detective Hahn then

began an investigation that started with requesting Steiger’s prescription history from the

Michigan Automated Prescription Services (“MAPS”).

Detective Hahn evaluated the MAPS report and documented his findings in an incident

report:

The M.A.P.S. report revealed that in the year 2010, Steiger was issued a
total of 1,840 units of Oxycodone/Oxycontine of varying milligram strengths and
consistencies, as well as 2,075 units of Hydrocodone of varying milligram
strengths and consistencies. In the year 2011, the amounts were 1,868 units of
Oxycodone/Oxycontine and 650 units of Hydrocodone. Based upon the
enormous amount of Hydrocodone and Oxycodone/Oxycontine being prescribed
to Steiger in the last two years, it is unlikely that the prescribing physicians
involved in Steiger’s medical treatment are aware of one-another. Or, at the very
least, are aware that the others are prescribing controlled substances to him in
addition to that which they are prescribing.

Detective Hahn additionally flagged seven specific time frames during which Steiger acquired

large numbers of prescription pain pills from separate doctors and filled these prescriptions at

varying pharmacies.

Because Steiger served on HUNT’s board of directors, HUNT transferred the

investigation to a drug-enforcement team known as SANE from a different geographic

jurisdiction.

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Michigan Attorney General Takes Role

Detective Ken Mills, as lead investigator for SANE, sought advice from the AG’s Office

on approaching this investigation. He discussed the facts learned from Steiger’s MAPS report

with Assistant Attorney General (“AAG”) Richard Cunningham, Chief of the Criminal Division.

AAG Cunningham decided to have an expert review the MAPS report first. He requested a

medical opinion from Dr. Kirk Mills at the Detroit Receiving Hospital, whose experience

includes time in emergency medicine where “[p]art of [his] routine practice” involved reviewing

MAPS reports to “evaluat[e] new patients requesting controlled substance pain medications.”

Dr. Mills also conducted similar reviews for malpractice cases, insurers, and for the DEA. AAG

Cunningham wrote:

Dear Dr. Mills:

We are seeking your expert medical opinion on certain matters, in order to
help this office make the legal determination as to whether there is probable cause
to believe that a person’s medical records will provide evidence that a crime has
occurred. Our focus is on whether a suspect’s medical records are likely to
provide evidence regarding the crime of Fraudulently Obtaining a Prescription for
a Controlled Substance from a Health Care Provider, in violation of MCL
333.7403a(1).
....
Our working theory is that the amount of the controlled substances and
frequency of the prescriptions indicate a questionable level of use, and may point
to some type of abuse, dependency or addiction. But our focus is really on
whether or not there was any fraud on the part of the patient in obtaining the
substances.

Dr. Mills reviewed the MAPS report and opined that “[Steiger’s] pattern of obtaining pain

medication from two different physicians and using multiple pharmacies to get them filled [ ] is

completely consistent with drug abuse, misuse, or diversion.” He found Steiger’s “pattern of

obtaining medications earlier than predicted based on the quantity prescribed” to be “consistent

with drug misuse, abuse, and/or diversion.” Dr. Mills concluded that normally a “[l]egitimate

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chronic pain patient[]” would be expected to disclose any unused pills and forgo additional

prescriptions. Yet Steiger continued obtaining and filling excess prescriptions.

Having the benefit of this input, AAG Cunningham reported to Detective Mills that “in

[the independent expert physician’s] professional judgment the [MAPS] records clearly

established that the subject, Richard Kevin Steiger, had fraudulently obtained controlled

substances.” AAG Cunningham authorized Detective Mills to apply for warrants to search

Steiger’s treating physicians’ offices and the dispensing pharmacies.

Detective Mills set about investigating the two physicians that frequently prescribed

medication to Steiger—his primary physician, Dr. Jeffrey Kiel, and a pain management doctor,

Dr. Robert Coombs. Officers interviewed both physicians twice. Detective Hahn and HUNT

Commander Delmar Putnam conducted Dr. Coombs’s first interview, and Detective Mills

conducted Dr. Kiel’s first interview. Dr. Coombs pointed to a patient contract Steiger signed

promising not to obtain controlled substances from other physicians, and Dr. Kiel reported that

he did not know about all the medications Dr. Coombs prescribed, although he knew Steiger was

also seeing Dr. Coombs.

The same day Detective Mills interviewed Dr. Kiel, he also interviewed Steiger about his

prescription history. Steiger maintained that he disclosed to both doctors the existence of the

other and that each knew that he needed prescriptions to control his chronic pain. A “mishandled

nasal surgery” in 1993 left Steiger with “continuous pain and discomfort” and a “significant

history of sinusitis and migraine headaches,” which is undisputed.

With these interviews concluded, Detective Mills, HUNT Commander Putnam,

Commander Michael Caldwell, the county sheriff, and the then-Presque Isle County assistant

prosecutor met to discuss the investigation. At that meeting, Detective Mills told the gathered

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group that he thought the case against Steiger seemed weak. So the investigation continued with

follow-up interviews of Dr. Coombs and Dr. Kiel. Asked to focus again on Steiger’s file,

Dr. Coombs admitted that Steiger actually had disclosed that Dr. Kiel was also prescribing pain

medication, but Dr. Coombs added that he did not know of the Percocet Dr. Kiel prescribed.

As for Dr. Kiel’s second interview, when he looked again at the MAPS report of

Steiger’s prescription history, he took note of the quantity of pills both he and Dr. Coombs

prescribed in a short time span. It showed Steiger received some 240 hydrocodone pills from Dr.

Kiel’s office on one date. Just 19 days later, he obtained an additional 180 pills from Dr.

Coombs. Then, 16 days later, he acquired 155 pills from Dr. Coombs and another 240 from Dr.

Kiel. The MAPS report reflected another 240 dispensed from Dr. Kiel less than a month later,

and a week after that, an additional 240 pills from Dr. Kiel.

In the course of discussing this, Dr. Kiel offered that Steiger would often ask to refill

prescriptions early. On the occasion when Dr. Kiel wrote an additional prescription for Steiger

just one week after prescribing 240 pills, Dr. Kiel thought Steiger misrepresented himself by not

disclosing that he recently filled another prescription.

Michigan AG Decides Evidence Supports Charging Steiger

After this round of interviews, AAG Cunningham and his staff met again with Detective

Hahn, Detective Mills, and HUNT Commander Putnam to discuss the investigation. The upshot

of the meeting was that AAG Cunningham “and his colleagues would discuss the investigation

and determine whether charges would be filed against Steiger.” Two days later, AAG

Cunningham let Detective Mills know the decision. According to the Michigan AG’s Office, the

evidence supported charging Steiger with one count of obtaining prescription narcotics by fraud

in violation of M.C.L. § 333.7403a(1). AAG Cunningham related that “Steiger would be

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informed of this decision . . . and [then] provided an opportunity to turn himself in to . . .

[Detective] Mills.”

State Court Dismisses Charge

Mills applied the next day for an arrest warrant from the AG’s Office and eventually

Steiger surrendered to the state police.

After a two-day preliminary examination, the state court dismissed the charge against

Steiger, finding insufficient evidence of fraud.

Steiger Sues Investigating Officers

His victory in state court spurred Steiger to sue the investigating officers under 42 U.S.C.

§ 1983, alleging unreasonable seizure, First Amendment retaliation, denial of due process,

malicious prosecution, and gross negligence under state law. Determining that qualified

immunity shielded the officers, the district court granted summary judgment and dismissed with

prejudice all federal claims. It dismissed the gross negligence claim without prejudice as better

suited to state court resolution.

II.

We “review[] de novo a grant of summary judgment, including one based on qualified

immunity.” Santiago v. Ringle, 734 F.3d 585, 589 (6th Cir. 2013).

In determining whether qualified immunity supports granting summary judgment, we

examine (1) whether the facts taken in the light most favorable to Steiger show that the officers

investigating him violated a federal right and (2) whether that right was clearly established when

violated. See Tolan v. Cotton, 134 S. Ct. 1861, 1865–66 (2014); Pearson v. Callahan, 555 U.S.

223, 236 (2009) (giving courts discretion as to which prong to examine first). If all reasonable

officers would know the action was unconstitutional, with precedent making it clearly unlawful,

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the right is clearly established. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The Fourth

Amendment conditions warrants on probable cause and prohibits unreasonable seizures.

A police officer violates those restrictions only when his deliberate or reckless falsehoods result

in arrest and prosecution without probable cause.” Newman v. Twp. of Hamburg, 773 F.3d 769,

771–72 (6th Cir. 2014). Qualified immunity shields from liability “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986).

III.

Fourth Amendment Claims

Steiger alleges that these Michigan State Police officers violated his Fourth Amendment

rights by investigating and arresting him without probable cause.

Probable cause to arrest exists if “facts and circumstances within the officer’s

knowledge . . . are sufficient to warrant a prudent person . . . in believing, in the circumstances

shown, that the suspect has committed, is committing or is about to commit an offense.”

Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (quoting Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979)). The officer must examine “the totality of the

circumstances, recognizing both the inculpatory and exculpatory evidence.” Gardenhire v.

Schubert, 205 F.3d 303, 318 (6th Cir. 2000). We review this determination from “the

perspective of a reasonable officer on the scene, rather than [one] with the 20/20 vision of

hindsight.” Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (quoting Kostrzewa v. City of Troy,

247 F.3d 633, 639 (6th Cir. 2001)).

A tip led law enforcement to Steiger’s MAPS prescription report; the contents of that

report reasonably sustained continuing prosecutorial interest. Steiger’s MAPS report showed he

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filled prescriptions from two doctors at various pharmacies for over 6,400 Schedule 2 pills in two

years’ time. From there, the officers proceeded in a methodical way to examine “the totality of

the circumstances, recognizing both the inculpatory and exculpatory evidence.” Gardenhire,

205 F.3d at 318. They interviewed the prescribing physicians, focusing on those physicians’

suggestions of Steiger’s misrepresentations. The investigators also noted some inconsistencies in

the doctors’ recollections regarding Steiger’s disclosure of prescriptions. The investigators

documented this and other aspects of their investigation at each step.

Advice from the Criminal Division Chief of the Michigan Attorney General’s Office

guided this investigation. An expert medical opinion on the appropriate inferences to be drawn

from the MAPS report underpinned the AG’s Office’s decision to obtain search warrants and to

interview key witnesses.

Crucially, it was the Attorney General’s assessment of the gathered evidence that led to

the decision to charge and arrest Steiger. Though Steiger sues the investigators here, AAG

Cunningham—a non-defendant—made the call to charge and arrest.

Steiger argues that retaliation and dislike motivated some investigators. He attributes

prejudice to Detective Hahn’s designation of Steiger’s ex-wife as a confidential informant,

thereby withholding her identity from the AG’s Office to enhance her credibility. He also sees

importance in testimony that Detective Mills believed that the case for fraud seemed weak.

Obviously, Steiger’s ex-wife’s tip led law enforcement to the MAPS report. The

objective reaction to the contents of that report moved the investigation, and any subjective

factors Steiger points to lost all relevance. The challenges Steiger raises all concern issues

ancillary to the evidence of whether he fraudulently obtained at least portions of the vast

quantities of drugs in the MAPS report. Once the police detectives were on to Steiger’s

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prescription history, the rest of the investigation focused on the drug prescribers and any

duplicity by Steiger in his obtaining those prescriptions from them. And pointing to Detective

Mills’s opinion on the weakness of the fraud evidence gets Steiger nowhere. No such expression

of skepticism establishes incompetence or unlawfulness. Steiger’s argument is that Detective

Mills’s holding this view ought to have halted further investigation by him. Yes, the record

reflects that an investigating detective doubted that the charges would hold up. And as it turned

out here, they did not. But Detective Mills investigated and reported the results to AAG

Cunningham, and AAG Cunningham directed that Detective Mills pursue the arrest warrant.

The sheer volume of prescription pain medication, the expert’s opinion that the volume

suggested further review, and the intervening assessment and decision by the AG’s Office render

Steiger’s arguments tangential rather than pertinent.

These officers proceeded as directed by the Attorney General to investigate the case and

to eventually process the warrant for Steiger’s arrest. Given that the investigators followed the

direction of the non-defendant State of Michigan, Steiger is left to argue that the investigators

skewed the AG’s assessment by withholding from the AG medical records gathered from the

doctors’ offices that would have shown Steiger’s bona fides in getting all these prescription

drugs. See Yancey v. Carroll Cty., 876 F.2d 1238, 1243–44 (6th Cir. 1989) (“[A]n officer cannot

rely on a judicial determination of probable cause if that officer knowingly makes false

statements and omissions to the judge such that but for these falsities the judge would not have

issued the warrant.”); see also Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999). In fact, days

passed between the time Detective Hahn forwarded those records and the AG’s Office called

Steiger to offer him the option to surrender. As the district court saw it, nothing supports

Steiger’s theory that the AG’s Office had no opportunity to review the evidence that might have

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exculpated him because five days intervened, permitting review. And what is more, not only is

there no evidence of a decision to withhold the medical records, the record shows that Detective

Mills’s email to request the arrest warrant includes the express promise to send the medical

records—a promise the record confirms he kept when Detective Hahn mailed the medical

records.

Though evidence supporting fraud might have been murky due to ambiguity in the

doctors’ testimony, in the absence of evidence of deliberate or reckless falsehoods, these officers

could rely on the AG’s Office’s independent judgment that probable cause existed to charge

Steiger. See Newman, 773 F.3d at 771–72; Ahlers, 188 F.3d at 373 (finding that when an officer

did not act with reckless disregard for the truth, the prosecutor’s determination to seek an arrest

warrant and a neutral magistrate judge issuing the warrant ratified his belief of probable cause).

Given that qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law,” we have no cause to disturb the district court’s determination that

these officers are immunized from trial and liability on Steiger’s seizure and malicious

prosecution claims. See Malley, 475 U.S. at 341 (1986).

First Amendment Retaliation

Steiger also alleges that his past complaints about the defendant officers’ work and some

personal entanglements he had with them led them to retaliate by wrongfully pursuing the fraud

charge. Like the district court, we reject this claim on the basis that because the AG’s Office

made the determination that probable cause existed to charge Steiger, it is clear that the charge

would have been brought “even without a retaliatory motive.” See Hartman v. Moore, 547 U.S.

250, 260–62 (2006).

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Due Process

Steiger argues a deprivation of individual liberty because “his good name was smeared

by Defendants with a fraud charge that they knew was false.” He also claims interference with

familial relationships because his ex-wife acted as an informant, and the officers created “a

situation in which Steiger’s ex-wife and daughter would be called to testify at a preliminary

hearing.” Again, Steiger’s argument hinges on the decision to charge, made by the AG. And he

presents only general and conclusory propositions that raise no issue of material fact to move this

court to reverse the grant of summary judgment.

Supplemental Jurisdiction

Steiger argues that because the district court incorrectly found none of his federal claims

viable, it also incorrectly failed to exercise supplemental jurisdiction over his state law claim.

Given our agreement with the district court’s dismissal of Steiger’s other claims, we assess its

choice to dismiss the state claim without prejudice to be well within its discretion.

IV.

We AFFIRM the district court’s judgment.

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CLAY, Circuit Judge, dissenting. This suit was commenced pursuant to 42 U.S.C.

§ 1983 based on Plaintiff Richard Steiger’s allegations that Defendant law enforcement officers

who investigated and arrested him for fraudulently obtaining prescription drugs proceeded in the

absence of probable cause. The district court thereafter granted Defendants’ motion for

summary judgment and dismissed Plaintiff’s federal claims with prejudice, holding that the

existence of probable cause supported Defendants’ actions and that because there were no

genuine issues of material fact, Defendants were shielded from suit by qualified immunity. The

majority accepts at face value the district court’s conclusory ruling that probable cause existed

for no other reason than that Plaintiff regularly obtained voluminous amounts of prescription

drugs—ostensibly to treat his excruciating pain. Importantly, the majority refuses to consider the

possibility that the physicians furnishing the prescriptions to Plaintiff were the ones at fault for

over-prescribing opioid pain medication. The majority also fails to appropriately take account of

the investigating officers’ failure to adequately consider the possibility that the doctors involved

might have been less than truthful in claiming that they did not know of the existence of other

physicians furnishing prescriptions to Plaintiff—notwithstanding that some evidence to the

contrary was provided by Plaintiff and the physicians themselves. The majority also contends

that the ultimate decision to charge Plaintiff was not made primarily by Defendants, but by the

Michigan Attorney General’s Office—although the factual circumstances surrounding the

decision to criminally charge Plaintiff also remain a matter of dispute.

I believe that the district court and the majority erred in finding that there was no genuine

issue of material fact as to whether officers had probable cause to arrest Plaintiff, and erred in

finding that the decision, purportedly by the Michigan Attorney General’s office resulting in the

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bringing of criminal charges, absolves the officers of all responsibility for their role in

effectuating an improper arrest. I therefore respectfully dissent.

A. Plaintiff Has Raised Genuine Issues of Material Fact as to the Existence of Probable
Cause

Plaintiff brought claims against Defendant officers for violation of his Fourth

Amendment rights, First Amendment retaliation, state law gross negligence, and violation of his

Fourteenth Amendment due process rights. Each of his claims requires him to show that there

was no probable cause for his arrest. See, e.g., Stemler v. City of Florence, 126 F.3d 856, 871

(6th Cir. 1997) (false arrest claim under § 1983); Voyticky v. Village of Timberlake, 412 F.3d 669

(6th Cir. 2005) (false arrest, false imprisonment, and malicious prosecution claims under §1983);

Hartman v. Moore, 547 U.S. 250, 266 (2006) (First Amendment retaliation). That is, if there

was probable cause for Plaintiff’s arrest, these claims are precluded.1

Probable cause to arrest a suspect exists if the “facts and circumstances within the

officer’s knowledge [ ] are sufficient to warrant a prudent person or one of reasonable caution, in

believing, in the circumstances shown, that the suspect has committed, is committing, or is about

to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “[T]he facts known to

the arresting officer at the time of the arrest” form the basis of the asserted probable cause.

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The officer’s conclusion that probable cause

exists must be supported by “reasonably trustworthy information.” Beck v. Ohio, 379 U.S. 89,

91 (1964). And obtaining such “reasonably trustworthy information” means undertaking a

1
Defendants were alleged to have a motive to pursue Plaintiff without probable cause: Plaintiff, in his role
as Presque-Isle County prosecutor, had been critical of various members of the Huron Undercover Narcotics Team
(“HUNT”)—the team that initiated his investigation before it was turned over to the Straights Area Narcotics
Enforcement (“SANE”) unit. Specifically, Plaintiff had criticized the HUNT department and its officers for the
“wrongful protection of an officer’s family member from prosecution; witness intimidation; rogue interrogation
tactics; handling of improper investigations; and public deception.” (Brief for Appellant at 47–48.)

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thorough investigation and pursuing exculpatory as well as inculpatory evidence. Ahlers v.

Schebil, 188 F.3d 365, 371 (6th Cir. 2007). In the instant case, much of what passes for

“evidence” against Plaintiff consists of self-interested statements by the prescribing physicians

who failed to satisfactorily explain why they were willing to prescribe such large quantities of

medication to Plaintiff (for which the doctors themselves might be culpable); and who sought to

deny any knowledge that Plaintiff was obtaining prescriptions from other physicians,

notwithstanding evidence to the contrary.

In this case, there is a genuine issue of material fact as to whether the “facts and

circumstances” known to the officers at the time of Plaintiff’s arrest would be “sufficient to lead

an ordinarily prudent person to believe” that Plaintiff was guilty of fraudulently obtaining

prescriptions. Indeed, the evidence against Plaintiff was extraordinarily slim.

The investigation into Plaintiff’s drug activity began when, in September 2011, Detective

Hahn was approached by Plaintiff’s disgruntled ex-wife with medications she had taken from

Plaintiff’s apartment. She told Detective Hahn that she believed Plaintiff was “doctor shopping”

and that he was using doctors Kiel and Coombs. Detective Hahn initially expressed skepticism:

“But two doctors isn’t—I mean, yes, there could—you could have a problem there, particularly

if you are . . . playing them off of each other, but typically a good doctor shopping case would

require at least three, four, maybe five, and that could be.” (R. 43-5, Kirah Steiger Interview I,

PageID 1237.) Nonetheless, Detective Hahn ran a Michigan Automated Prescription Service

(“MAPS”) report, and was surprised by the number of medications that Plaintiff had been

prescribed for his chronic conditions, and thereafter sought guidance from the Michigan

Attorney General’s Office.

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Assistant Attorney General Cunningham sent the MAPS report to Dr. Kirk C. Mills to

review in order to determine whether the report was consistent with the officers’ theory that

Plaintiff was fraudulently obtaining medication. Dr. Mills reviewed the MAPS report and

concluded that it was “consistent with drug use, misuse, or diversion.” (R. 50-20, Mills Rep.,

PageID # 2405.) He also concluded that the MAPS report indicated that Plaintiff was doctor

shopping based on the high volume of pills that both Dr. Kiel and Dr. Coombs seemed to

overprescribe. (Id.) On September 26, 2011, the officers obtained search warrants for eleven

medical facilities and pharmacies, including the medical offices of Dr. Robert Coombs and Dr.

Jeffrey Kiel, the two doctors who had prescribed nearly all of Plaintiff’s pain medication.

(R. 50-22, Incident Report, at PageID # 2414.)

On October 25, 2011, detectives from the SANE unit interviewed Dr. Kiel, who said that

he was surprised that Plaintiff was receiving so much medication from Dr. Coombs. (R. 50-3,

Kiel Interview I, PageID # 2178–79.) Nevertheless, Dr. Kiel admitted that Plaintiff had told him

that he was receiving OxyContin prescriptions from another doctor. (Id. at PageID # 2171.)

That same day, detectives interviewed Dr. Coombs. Dr. Coombs said that he was unaware that

Plaintiff was receiving pain medication from other doctors and that, if he were doing so, he was

violating a contract that Dr. Coombs had all of his patients sign, in which they promised not to

“attempt to obtain any controlled medicines . . . from any other doctor.” (R. 50-5, Coombs

Interview I, at PageID # 2196–2200.)

After these interviews, Detectives Mills, Putnam, and Caldwell from the Straights Area

Narcotics Enforcement (“SANE”) unit met with Presque Isle County Sheriff Paschke and

Presque Isle County Assistant Prosecutor, Meghan Hurley, to discuss the investigation. (R. 50-6,

Hurley Aff., at PageID # 2229.) Detective Mills indicated to the group that he thought the case

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against Plaintiff was weak. (Id. at PageID # 2229–30.) And according to Hurley, she left the

meeting with the impression that Plaintiff would not be charged. (Id. at PageID # 2230.)

Undeterred, Detective Hahn again interviewed Dr. Coombs on October 31, 2011. (R. 50-

7, Coombs Interview II, PageID # 2231–55.) The two reviewed Plaintiff’s medical records,

which revealed that Plaintiff had indeed disclosed to Dr. Coombs at least some of the medication

he was receiving from other sources. (Id. at PageID # 2233–34.)

On November 14, 2011, Detective Mills interviewed Physician’s Assistant Jeffrey

Kwiatkowski, who had prescribed twenty Percocet pills to Plaintiff during an emergency room

visit in September 2011. (R. 43-20, Kwiatkowski Interview, PageID # 1391–98.) Kwiatkowski

said that Plaintiff told him that he was receiving pain medication from other doctors, and that the

additional pain medication that Kwiatkowski prescribed was legitimate, given Plaintiff’s chronic

sinus issues and his recent gluteal abscess surgery. (Id. at PageID # 1394–97.)

That same day, Detective Mills also interviewed Dr. Kiel for a second time. (R. 43-21,

Kiel Interview II, PageID # 1399–1423.) Dr. Kiel told Mills that Plaintiff must have

misrepresented himself because “there is no way [Dr. Kiel] would have given” additional

medication so soon after Plaintiff received similar medication from Dr. Coombs. (Id. at PageID

# 1403.) Dr. Kiel also asserted that, even though Plaintiff had disclosed that he was getting

prescriptions from another doctor, Plaintiff was nonetheless “being deceptive” in getting pain

medications from both doctors Kiel and Coombs. (Id. at PageID # 1413–14.) Dr. Kiel

highlighted what he regarded to be a particularly egregious deception: namely, Plaintiff told Kiel

that Dr. Coombs had authorized Kiel to prescribe pain medication for Plaintiff’s migraines;

Dr. Kiel never confirmed this with Dr. Coombs. (Id. at PageID # 1416.) Dr. Kiel told police that

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he made a mistake by not independently confirming Plaintiff’s prescriptions and treatment plan

with Dr. Coombs. (Id. at PageID # 1422.)

To briefly summarize, the evidence that officers had against Plaintiff at the time the

decision was made to arrest him was as follows: a largely unsupported accusation by Plaintiff’s

disgruntled ex-wife; a MAPS report that showed only that Plaintiff had obtained a large amount

of prescription medication; an interpretation of that report that concluded little more than that

Plaintiff might have a drug problem; and interviews with multiple doctors who stated, in essence,

that they were shocked to find that Plaintiff was receiving so much medication, notwithstanding

the fact that a brief review of the doctors’ medical files showed that Plaintiff had in fact informed

the doctors about each other’s prescriptions, casting serious doubts on the integrity of their self-

serving statements. That’s it. Unsurprisingly, Daryl Vizina, the elected prosecutor for

Cheboygan County, said that after the decision to charge Plaintiff was made, Detective Mills told

him that he was surprised the charges had been brought because it was “not a great case.” (R.

50-11, Vizina Aff., at PageID # 2265.)

On January 24, 2012 and February 2, 2012, the state’s 88th District Court conducted a

preliminary examination. Judge Theodore Johnson concluded that although Plaintiff had

obtained a tremendous amount of pills, he was not charged with prescription drug abuse, but

with fraudulently obtaining prescriptions, and the evidence did not show that Plaintiff made

misrepresentations to his physicians. (R. 50-2, Prelim. Ex. Trans. at PageID # 2157–60.)

Instead, every time he had an appointment with Dr. Coombs, he filled out a form indicating that

he was receiving medication from another doctor. (Id. at PageID # 2158.) Similarly, the

evidence showed that Dr. Kiel knew that Dr. Coombs was prescribing pain medication. (Id. at

2158–60.) Accordingly, the court found that the government had not shown probable cause of

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fraud sufficient to bind the case over for trial. (Id. at PageID # 2160.) This decision was

affirmed on appeal to the Alpena County Circuit Court. (R. 50-13, Circuit Court Order, PageID

# 2269–76.)

The foregoing review of the evidence demonstrates just how weak the case against

Plaintiff was. The majority’s mischaracterization of the evidence in order to argue the existence

of probable cause is entirely misplaced when one considers that “courts may not resolve genuine

disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, 134 S. Ct.

1861, 1866 (2014) (citing Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004)). In light of the

fact that all reasonable inferences must be given to Plaintiff at the summary judgment stage, the

district court obviously erred in holding that Plaintiff would be unable to prove the requisite lack

of probable cause to succeed on his federal claims.

Nonetheless, the district court and the majority both argue that the final decision to

prosecute Plaintiff purportedly was not made by the police officers, but by AAG Cunningham,

who is not a defendant in this case. (R. 43-5, MSP Incident Report, PageID # 1224.) But even if

their contention in that regard could be substantiated, a police officer cannot absolve himself of

his misconduct through an independent probable cause determination of a prosecutor. See

Yancey v. Carroll Cty., 876 F.2d 1238, 1243–44 (6th Cir. 1989); Awabdy v. City of Adelanto, 368

F.3d 1062, 1067 (9th Cir. 2004) (holding that the “presumption of prosecutorial independence

does not bar a subsequent § 1983 claim against state or local officials who improperly exerted

pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory

evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental

in causing the initiation of legal proceedings”); cf. Malley v. Briggs, 475 U.S. 335, 340–45

(1986) (affirming lower court’s holding that “an officer who seeks an arrest warrant by

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submitting a complaint and supporting affidavit to a judge is not entitled to immunity unless the

officer has an objectively reasonable basis for believing that the facts alleged in his affidavit are

sufficient to establish probable cause”); Moldowan v. City of Warren, 578 F.3d 351, 379 (6th Cir.

2009) (“Although the prosecutor undoubtedly plays a ‘special role’ in ‘the search for truth in

criminal trials,’ . . . the police also play a unique and significant role in that process, and thus

also are bound by the government’s constitutional obligation to ‘ensure that a miscarriage of

justice does not occur.”). Indeed, to make out a malicious prosecution claim, an officer need not

have made the final decision to prosecute—all that is required is that an officer must have

“participated” in the decision. Webb v. U.S., 789 F.3d 647, 659 (6th Cir. 2015). And “the term

‘participated’ should be construed within the context of tort causation principles. Its meaning is

akin to ‘aided.’ To be liable for ‘participating’ in the decision to prosecute, the officer must

participate in a way that aids in the decision, as opposed to passively or neutrally participating.”

Id. at 660 (quoting Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010)). In the instant case,

these are all issues that should be left to the determination of the trier of fact.

Moreover, what the Michigan Attorney General decided is either irrelevant or is only

evidentiary in nature as to the factual issue of the existence of probable cause and is, therefore,

inappropriate for resolution at summary judgment. The question for the Court is whether there is

a genuine issue of material fact as to whether Defendants had probable cause to arrest Plaintiff.

“In general, the existence of probable cause in a § 1983 action presents a jury question, unless

there is only one reasonable determination possible.” Fridley v. Horrighs, 291 F.3d 867, 872

(6th Cir. 2002) (quotation marks omitted). That the Michigan Attorney General also erred does

not point to only one reasonable determination of responsibility for the improper charging

decision or otherwise inoculate the officers’ own errors.

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B. Plaintiff Has Shown the Existence of Material Factual Disputes as to Whether
Defendants Knowingly or Recklessly Set His Prosecution in Motion Despite the
Absence of Probable Cause

In light of the preceding discussion that a genuine issue of material fact exists as to

whether officers had probable cause to arrest Plaintiff, the district court erred by prematurely

dismissing each of Plaintiff’s federal claims rather than submitting them to the trier of fact.

1. Fourth Amendment Claims

“The Fourth Amendment protects the right of individuals to be free from improper arrest

and detention.” Logsdon v. Hain, 492 F.3d 334, 340 (6th Cir. 2007) (citing U.S. Const. amend.

IV (“The right of the people to be secure in their persons . . . against unreasonable seizures . . .

shall not be violated.”)). This Court recognizes a “‘constitutionally cognizable claim of

malicious prosecution under the Fourth Amendment,’” which encompasses “wrongful

investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d 709, 715–

16 (6th Cir. 2006) (quoting Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003)).

“The ‘tort of malicious prosecution’ is ‘entirely distinct’ from that of false arrest, as the

malicious-prosecution tort ‘remedies detention accompanied not by absence of legal process, but

by wrongful institution of legal process.’” Sykes, 625 F.3d at 308 (quoting Wallace v. Kato, 549

U.S. 384, 390 (2007)) (emphasis in original). “In order to distinguish appropriately this claim

from one of false arrest, we must consider not only whether the Defendants had probable cause

to arrest the Plaintiffs but also whether probable cause existed to initiate the criminal proceedings

against the Plaintiffs.” Id. at 310–11 (citing Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007);

and citing Barnes, 449 F.3d at 716).

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The elements of a malicious prosecution claim under § 1983 when the claim is premised

on a violation of the Fourth Amendment are as follows:

First, the plaintiff must show that a criminal prosecution was initiated against the
plaintiff and that the defendant made, influenced, or participated in the decision to
prosecute. Second, because a § 1983 claim is premised on the violation of a
constitutional right, the plaintiff must show that there was a lack of probable
cause for the criminal prosecution. Third, the plaintiff must show that, as a
consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty
… apart from the initial seizure. Fourth, the criminal proceeding must have been
resolved in the plaintiff’s favor.

Id. at 308–09 (internal quotation marks, citations, and alterations omitted).

The district court granted summary judgment for Defendants on this claim because it held

that “Steiger cannot show that probable cause was so clearly missing as to make the investigation

unreasonable.” (R. 55, Order, at PageID # 2492.) Because the record below clearly shows that

there is a genuine issue of fact as to whether the officers had probable cause to arrest Plaintiff (as

well as whether the Attorney General had probable cause to charge him), I would reverse the

district court’s grant of summary judgment on this claim.

2. First Amendment Retaliation

As for Plaintiff’s First Amendment retaliation claim, the Supreme Court has recognized

that the official conduct of police officers is a matter of fundamental importance to the operation

of free government, noting that “[t]he freedom of individuals verbally to oppose or challenge

police action without thereby risking arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462–63

(1987). This Court has said that “[o]bviously, the public is concerned with how a police

department is operated and efforts to give public exposure to alleged misconduct are protected.”

McMurphy v. City of Flushing, 802 F.2d 191, 196 (6th Cir. 1989). Plaintiff argues that when he

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criticized members of the HUNT team, especially Detectives Hahn and Caldwell, he was

speaking out on a matter of public concern. (Brief for Appellant at 47.) Specifically, Plaintiff

criticized the department and its officers for the “wrongful protection of an officer’s family

member from prosecution; witness intimidation; rogue interrogation tactics; handling of

improper investigations; and public deception.” (Brief for Appellant at 47–48.)

To establish a claim for First Amendment retaliation, “a plaintiff must show that (1) he

was participating in a constitutionally protected activity; (2) defendant’s action injured plaintiff

in a way ‘likely [to] chill a person of ordinary firmness from’ further participation in that

activity; and (3) in part, plaintiff’s constitutionally protected activity motivated defendant’s

adverse action.” Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th

Cir. 2007) (quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)). “Once a plaintiff raises

an inference that the defendant’s conduct was motivated in part by plaintiff’s protected activity,

the burden shifts and defendant ‘can demonstrate that it would have taken the same action in the

absence of the protected activity.’” Id. (quoting Arnett v. Myers, 281 F.3d 552, 560–61 (6th Cir.

2002)). An “action colored by some degree of bad motive does not amount to a constitutional

tort if that action would have been taken anyway.” Hartmann, 547 U.S. at 260. The plaintiff

must show that the defendant “induced the prosecutor to bring charges that would not have been

initiated without his urging.” Id. at 262. The Supreme Court has interpreted this requirement to

mean that lack of probable cause must be “pleaded and proven” in order for a plaintiff to prevail

on a First Amendment retaliatory prosecution claim under § 1983. Id. at 266; Barnes, 449 F.3d

at 719.

The district court concluded that Plaintiff’s claim failed because the officers had probable

cause to arrest him. (R. 55, Order, PageID # 2494.) But because there exist genuine issues of

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fact as to whether the officers had probable cause to arrest Plaintiff, I would reverse the district

court’s grant of summary judgment on this claim as well.

3. Due Process

Finally, Plaintiff argues that Defendant’s actions constitute a violation of substantive due

process. Substantive due process protects a narrow set of interests, including interests “protected

by specific constitutional guarantees, . . . freedom from government actions that ‘shock the

conscience’ and certain interests that the Supreme Court has found so rooted in the traditions and

conscience of our people as to be fundamental.” Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th

Cir. 2003) (citing Braley v. Pontiac, 906 F.2d 220, 224–25 (6th Cir. 1990)). The district court

held that “the initiation of prosecution in this instance was not so arbitrary and capricious as to

shock the conscience” because “a reasonable police officer could have found that probable cause

existed to charge Steiger with the crime”. (R. 55, Summary Judgment Order, PageID # 2495.)

This conclusory statement by the district court is at variance with the evidence and ignores the

likelihood that the factfinder, on this record, could certainly find that a reasonable police officer

would not have found the existence of probable cause.

I believe that genuine issues of fact as to probable cause precludes the granting of

summary judgment on this count as well.

CONCLUSION

Nobody disputes that Plaintiff obtained a voluminous amount of pills, but similarly,

nobody disputes that Plaintiff was in a tremendous amount of pain. The record contains

sufficient evidence to cast Plaintiff’s doctors as characters in what has become an all-too-familiar

story: the extreme over-prescription of pain medication. What the record does not show,

however, is any convincing evidence that Plaintiff defrauded or otherwise misled his doctors.

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Because there are genuine of issues of fact as to whether reasonable police officers—who should

be very familiar with the phenomenon of over-prescription of pain medication that contributes to

society’s modern day opioid crisis—should have found that there was probable cause to arrest

Plaintiff for fraudulently obtaining prescriptions, I respectfully dissent.

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