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Fleming v. Caruso

April 16, 2010


The opinion of the court was delivered by: Honorable Paul D. Borman United States District Judge


This matter comes before the Court on Defendants' Motion for Summary Judgment. (Dkt. No. 29.) Plaintiffs filed a Response. (Dkt. No. 33.) Defendants filed a Reply. (Dkt. No. 42.) A hearing was held on April 1, 2010. For the reasons that follow, the Court GRANTS Defendants' Motion for Summary Judgment.


Plaintiff alleges in his Complaint that Defendant Parling, a Washtenaw County probation officer, supplied false information in support of an Affidavit requesting that a bench warrant issue for Plaintiff's arrest for violations of his probation. Plaintiff claims that Defendant Nelson, also a Washtenaw County probation officer and Defendant Parling's supervisor, reviewed, approved, executed and enforced the warrant with knowledge of the falsity of the statements contained in the Affidavit. Plaintiff also alleges that Parling and Nelson falsely arrested and maliciously prosecuted him on the warrant by requiring him to return to Michigan in October, 2005, at risk of losing his job, to answer on the warrant which they knew at the time was no longer valid.

Defendants argue in their motion that Parling had probable cause to request the warrant and Nelson had probable cause to approve it and to continue to enforce it when Plaintiff returned to Michigan in October, 2005 to answer on the warrant. Defendants also argue that in any event, both Parling and Nelson are protected by qualified immunity. Defendants also argue in their motion that Defendants Parling and Nelson are absolutely immune from any suit against them in their official capacities.*fn1


On June 28, 2004, Plaintiff pled guilty to failing to pay child support/leaving the state and was convicted. (Pl.'s Resp. Ex. 1.) On August 9, 2004, Washtenaw County Circuit Court Judge Melinda Morris sentenced Plaintiff to 5 years probation and payment of $26,000 in restitution to his ex-wife. (Pl.'s Resp. Ex. 28.) Plaintiff lived in Lansing, Illinois at the time of his sentencing and had a job there with Alpine Paving. (Pl.'s Resp. Ex. 2, Deposition of John Fleming, July 10, 2009 p. 6, 7, 9, 14; Ex. 25 (Pre-Sentence Report).) Plaintiff also had custody of his 8 year old son. (Pl.'s Resp. Ex. 2, Fleming Dep. 9-10, 24.)

Following the sentencing hearing, Plaintiff went downstairs in the courthouse as instructed to meet with his probation officer, Defendant Parling, who informed him that he would not be able to leave Michigan to return to his job or home in Illinois. Plaintiff explained to Parling that his life was in Illinois, his son's school was there and that his job was there. (Pl.'s Resp., Ex. 2, Deposition of John Fleming, July10, 2009, p. 13-14.) Angered that he was going to be unable to return to Illinois, Plaintiff went back up to Judge Morris and asked to retract his plea. Plaintiff states that he explained his situation to the Judge, stating that Parling would not let him return to Illinois but that he could never pay the judgment if he was not allowed to return to his job. Plaintiff states that the Judge and Parling argued but that the Judge agreed with him and told his lawyer to write something up allowing him to return to Illinois. (Pl.'s Resp. Ex. 2, Fleming Dep. 14-15.) His lawyer prepared an "Order Regarding Motion to Allow Defendant to Return to Home State" which Judge Morris signed that day. (Defs.'s Mot. Ex. 1, 78.) The Order stated that Defendant "be allowed to return to State of Illinois, but must comply with probation in signing probation order and completing interstate compact paperwork." (Id.) That same day, Judge Morris signed the Judgment of Sentence which indicated: "Def. may return to State of Illinois." (Pl.'s Resp. Ex. 1.) Plaintiff states that he left to return to Illinois later that day and that his attorney told him good luck and to be sure to hang on to the papers the Judge signed allowing him to return to Illinois. (Pl.'s Resp. Ex. 2, Fleming Dep. 18.) On August 16, 2004, Judge Morris signed the Order of Probation, placing Plaintiff on five years' probation for failure to pay child support and ordering him to pay $26,000 in restitution. (Defs.'s Mot. Ex. 1, 76.)

Defendants have a different version of what happened following the second hearing before Judge Morris on August 9, 2004, and state that Nelson instructed Plaintiff after the hearing to report the day after sentencing to sign an order and complete the interstate compact paperwork. (Pl.'s Resp. Ex. 4 p. 9.) The Michigan Department of Corrections Case Notes ("case notes") from 8/16/04 day state that Plaintiff was "argumentative with clerical and supervisor" and never reported as instructed. (Id.) The case notes further state that Plaintiff called Parling and told her he needed to go back to Illinois and get to work and she told him that he had already missed his first reporting date and that he needed to follow procedure, and report to probation at 8am on August 18, 2004. The case notes state that Plaintiff's public defender called Parling to see if something could be worked out and she said no, Plaintiff had to report as instructed. (Id.) The case notes indicate that Plaintiff did report on August 18, 2004 but did not pay the $100 fee required to initiate the interstate transfer and was told again that he could not leave the state until the interstate compact paperwork was completed. Plaintiff was told to report again on September 2, 2004. (Pl.'s Resp. Ex. 4 p. 8.)

Plaintiff testified that it was his understanding that the Judge's Order required him to take a DNA test, apply for and pay $100 to obtain an interstate transfer and that he could return that day and go back to work, which he claims he did. His understanding was that when the interstate transfer came through he may have to come back to complete some paperwork but that, in the meantime, he could return to Illinois. (Pl.'s Resp. Ex. 2, Fleming Dep. 15.) Plaintiff testified at his deposition that he paid the $100 fee before he left to go back to Illinois but this is contradicted by the probation case notes which indicate that as of November 15, 2004, Plaintiff acknowledged that he had not paid the $100 transfer fee as of that date. (Id. at 22; Pl.'s Resp. Ex. 4 p. 7.) Plaintiff admitted that he understood that his probation had not been transferred to Illinois and that he had to take time off of work for hearings and to attend meetings with Parling back in Michigan, which created problems with his employer in Illinois who began training someone else to take Plaintiff's job. (Id. at 21.)

In early September, 2004, Plaintiff decided to return to Michigan to live with his grandmother and try to find work. (Id. at 24-25.) Plaintiff testified that he knew Parling was upset because he had left the state and that he "felt bad" that Parling had argued with the Judge and he wanted to return to Michigan to make "things go smooth as possible." (Id. at 25.) Because Plaintiff had moved to Wayne County, his Michigan probation was transferred to another probation officer, Brannan, and he was to begin reporting to her as instructed. (Pl.'s Resp. Ex. 4, p. 8.) Plaintiff began reporting to Brannan as instructed and reported to her on September 27, 2004, October 18, 2004 and November 15, 2004. (Id. at 6, 7, 8.) During this same period of time, Brannan was receiving numerous phone calls from Plaintiff's ex-wife complaining that Plaintiff was not paying the $100/month in restitution as he was ordered to do. (Id. at 5, 7.)

On November 15, 2004, the Michigan Probation Department case notes indicate that Plaintiff stated he was returning to Illinois although he was told that this would be a violation of his parole. (Id. at 7.) The case notes indicate that on December 2, 2004, Plaintiff's ex-wife called Parling (Washtenaw County Probation) and informed her that Plaintiff may possibly have left the state and complained that he had only paid $300 and asking what could be done to enforce the court's orders. (Id.) The case notes indicate that Parling returned the message and informed Plaintiff's ex-wife that Parling had moved up Plaintiff's report date and that if he had in fact left the state, she would issue a bench warrant for his arrest if he did not report. (Id.) Throughout December and January, Plaintiff, still in Michigan, continued to report and fail to report to agent Brannan (Wayne County Probation) and remained unemployed. (Id. at 6.)

On January 6, 2005, Parling advised Brannan that she had scheduled a show cause hearing on Plaintiff's non-payment of his restitution for February 14, 2005 and asked Brannan to inform Plaintiff. (Id. at 6.) The case notes indicate that Brannan did inform Plaintiff of the show cause date when he reported on January 10, 2005. (Id.) On January 11, 2005, Parling received an email from Plaintiff's ex-wife, still complaining that Plaintiff was not paying her and asking for a response. On January 13, 2005, Parling responded to Plaintiff's ex-wife and explained that Brannan was now Plaintiff's supervising agent, giving Brannan's contact information and explaining that Plaintiff was scheduled to appear before Judge Morris on February 14, 2005 to show cause why he has not complied with the conditions of his probation. (Id. at 5.)

Plaintiff did not report for the show cause and did not report as instructed on February 28, 2005. (Id. at 4.) Plaintiff did report on March 7, 2005 and stated that he did not know he was supposed to have reported on February 28, 2005 and advised that he was still unemployed and had not made child support payments for approximately six weeks. (Id.) The case notes indicate that there was a show cause hearing on March 14, 2005 at which time the friend of the court explained that Plaintiff's ex-wife decided to forgo the balance of the restitution owed to her. The case notes indicate that this did not satisfy the entire amount owed to the state, however, and that an updated restitution and amended order would need to be completed. (Id.)

On March 24, 2005, Plaintiff met with Parling, even though he was still being supervised by Brannan, and paid the $100 transfer fee and completed his interstate transfer paperwork. (Defs.'s Mot. Ex. 6, pp. 8-9.) Parling also completed a Travel Permit which gave Plaintiff permission to travel to Illinois and did not enter a return date. (Id. at 15.) The Travel Permit notes that Plaintiff was a resident in Illinois at the time he was sentenced and his travel date is listed as April 8, 2005 with the return date "na." Parling testified in her deposition that despite what appeared on the Travel Permit, Plaintiff's transfer to Illinois would not be complete until his Michigan probation officer received reporting instructions from his Illinois probation officer, which Nelson testified could take months at that point in time. (Defs.'s Mot. Ex. 5, Parling Dep. 174-175, 196-197; Ex. 7, Nelson Dep. 39-40.) Thus, even though the paperwork was complete on March 24, 2005, and the transfer fee had been paid, Plaintiff's transfer to Illinois probation was not complete.

On April 6, 2005, Plaintiff left a message with Parling stating that he was told he no longer had to report in person and that he was in Illinois and wanted to know what was taking so long. (Pl.'s Resp. Ex. 4, p. 4.) On April 6, 2005 contact was made with Plaintiff's girlfriend's mother who stated that Plaintiff was in Illinois and his case had been transferred. (Id. at 3.) Plaintiff failed to report in Michigan on April 8, 2005 and Brannan left him a message informing him that he was not to leave Michigan without reporting instructions and informing him that Parling never told him he no longer had to report in Michigan and advising him to return to Michigan. (Id.)

On April 12, 2005 Plaintiff, who had returned to Michigan, phoned his probation officer after hours and advised that he was staying with his son and his daughter, at two different addresses, in Ypsilanti, Michigan and waiting for his reporting instructions. (Id.) On April 13, 2005 Plaintiff reported without instructions to do so and stated that he was living in Ypsilanti. Plaintiff was advised that he was just "doing what he wants" and was advised "that probation does not work this way." Plaintiff was still not making payments. (Id.) On April 18, 2005 Plaintiff telephoned and gave an address in Ypsilanti, Michigan. Also on that day, Brannan contacted Washtenaw County Court Services who advised that the balance owed by Plaintiff was $25,200 in restitution. (Id.)

Because Plaintiff was now living in Washtenaw County, his probation was transferred back to Parling. On April 27, 2005 Plaintiff left a message with Parling gave another address in Ypsilanti, Michigan and gave a cell phone number. (Id.) On May 4, 17 and 18, 2005, Parling attempted to visit Plaintiff at the addresses he had given without success. On May 19, 2005, Plaintiff reported and stated that he had given the wrong numbers and was given a verbal warning for giving the probation department "a run around" and was threatened with another court appearance if he was unable to provide accurate information. (Id. at 2.) On June 10, 2005, Parling attempted to visit the last given address but the buzzer was damaged and she left a card. Despite numerous attempts, no contact was made with Plaintiff for the remainder of June and into early July. (Id.)

Plaintiff was supposed to report on June 30, 2005 but did not and was noted as a violation for failure to report. Plaintiff also failed to report on July 7, 2005 and was violated again and authorization was issued to proceed with a warrant as per policy. (Defs.'s Mot. Ex. 5, Parling Dep. 61; Ex. 7 Nelson Dep. 133; Ex. 1 p. 5; Ex. 8; Ex. 9.) Parling completed an affidavit in support of the warrant, adding to the June 30, 2005 and July 7, 2005 failures to report other violations of additional conditions based upon a review of Plaintiff's case notes, i.e. three previous failures to report, failure to obtain permission to change residency, failure to make himself available for residency verification, failure to make monthly payments and failure to provide employment verification. (Defs.'s Mot. Ex. 1, p. 5-6.) Nelson approved the bench warrant request. (Defs.'s Mot. Ex. 10, Nelson Aff. ¶ 3.) The office received the signed warrant back on August 4, 2005. (Defs.'s Mot. Ex. 3, p. 1.)

Plaintiff recalls these months of May and June differently, stating that Parling told Plaintiff in early April to report to Cook County Probation in Illinois, although he wasn't sure if Parling had given him a name or just told him to report there. (Pl.'s Resp. Ex. 2, Fleming Dep. 32-35.) He testified that Parling did not tell him in early April that he would still have to meet with her or that he had to attend any meetings with her. (Id. at 35.) Plaintiff testified that he did not remember reporting to Parling in April or May but he did remember at some point giving her the residence addresses in Ypsilanti before he left again for Illinois. (Id. at 35-37.) Plaintiff testified that Parling never told him that he still had to report to her and that she actually wished him luck after their meeting in March when he signed the transfer the papers. Plaintiff testified that he moved back to Illinois in early April and resumed work with Alpine Paving and was still having his wages garnished by Washtenaw County. (Id. at 39-40.)

On June 17, 2005, without informing the Michigan Probation Department, Plaintiff began reporting to Cook County Illinois probation officer Cunningham. (Defs.'s Mot. Ex. 6, p.6.) Washtenaw County records indicate that the official reply to Plaintiff's transfer request, which confirmed that Plaintiff had begun reporting there on June 17, 2005, was received in Washtenaw County on July 14, 2005. (Defs.'s Mot. Ex. 6, p. 5.) Both Parling and Nelson testified that they never received or observed this document. (Defs.'s Mot. Ex. 5, Parling Dep. 145-146, 184; Ex. 7, Nelson Dep. 140-142; Ex. 11, Parling Aff. ¶ 5; Ex. 10, Nelson Aff. ¶ 5.) Plaintiff continued to report in Cook County throughout July, August and September. (Defs.'s Mot. Ex. 12, Cook County Probation Records.) Plaintiff resumed work with Alpine Paving on June 20, 2005. (Pl.'s Resp. Ex. 29.)

On September 30, 2005, Plaintiff was arrested in Lynwood, Illinois on the warrant that had been issued in Washtenaw County on or about July 29, 2005 for various violations of Plaintiff's probation. Cook County declined to further enforce the warrant based on documentation of his transfer provided by Plaintiff. Plaintiff was released on October 3, 2005. (Pl.'s Resp. Ex. 2, Fleming Dep. 27-29, 44; Defs.'s Mot. Ex. 12, Entries dated 10/03/05, 10/12/05.)

The day after he was released from jail in Cook County, Plaintiff placed several calls to the Washtenaw County Probation Department trying to find out why he had been arrested. (Pl.'s Resp. Ex. 24, Phone Records; Ex. 10, Nelson Dep. 29.) The calls were received by Nelson, as Parling was on an extended leave of absence. (Pl.'s Resp. Ex. 10, Nelson Dep. 29; Defs.'s Mot. Ex. 5, Parling Dep. 141.) Parling, therefore, never spoke to Plaintiff. Nelson did not make a note of these calls. (Id. 30.) When she received Plaintiff's calls, Nelson reviewed the file and the notes. Although against policy, Nelson called the agent in Illinois and verified that Plaintiff had in fact been reporting in Cook County, Illinois. (Defs.'s Mot. Ex. 7, Nelson Dep. 59-60, 119-120, 122.) Nelson did not cancel the warrant, however, because there was no indication in the file that Plaintiff had permission to be reporting in Illinois. (Pl.'s Resp. Ex. 10, Nelson Dep. 31-32, 35.) The file as Nelson reviewed it did not contain the interstate compact paperwork, which would have contained the Reply to Transfer Request which confirmed that Plaintiff's interstate transfer had been accepted and that he was reporting in Illinois. (Id. at 33.) The only document contained in the file was a Case Closure stating that a warrant had been issued. The file as Nelson reviewed it indicated that Plaintiff was living in Wayne County and Washtenaw County and that probation was constantly trying to verify his address. It appeared to Nelson from her review of the file, which in retrospect she admits was incomplete, that the MDOC probation department did not know where Plaintiff was. (Id. 32-33.) Nelson said it was not normal for the file not to contain the interstate compact transfer paperwork and that the sole Case Closure document appearing in the file did not make sense to her. She decided that she needed to conduct further investigation. (Id. 32-35.)

Nelson testified that she told Plaintiff she would continue to investigate the matter and not to drive back to Michigan if it was going to jeopardize his job. Plaintiff told Nelson he was coming back to Michigan and Nelson said the choice was Plaintiff's but it wasn't worth risking his job and that they might be able to resolve it without Plaintiff coming back. (Defs.'s Mot. Ex. 7, Nelson Dep. 102.)

Plaintiff has a very different recollection of this conversation and states unequivocally that Nelson told him "get your butt back here." (Pl.'s Resp. Ex. 2, Fleming Dep. 47-49.) Plaintiff did return to Michigan of his own accord, appeared in Washtenaw County Circuit Court on October 31, 2005 and was arraigned before Judge Melinda Morris. Plaintiff testified that he "turned himself in to the [Washtenaw County] jail" at about nine o'clock in the morning, appeared in court around 1:00 p.m. and was released immediately after the hearing with the charges dismissed. (Pl.'s Resp. Ex. 2, Fleming Dep. 50.) There is no suggestion that Nelson or Parling was involved when Plaintiff appeared in court on the morning of October 31, 2005.

On November 3, 2005, after Plaintiff had been released on the warrant and the charges dismissed, Parling submitted a Petition and Order for Amendment of Order of Probation, stating that the bench warrant had been dismissed and that probation was continued with all original terms and conditions." This Order was signed on December 13, 2005 by Judge Morris. (Defs.'s Mot. Ex. 1, p. 4.) On January 17, 2006, Washtenaw County probation, Wendy Becker, reviewed a tape of the video recorded hearing on October 31, 2005 during which the judge had ordered that Plaintiff's probation be dismissed and the offender discharged. (Pl.'s Resp. Ex. 4, p. 1.) On January 18, 2006, a Motion for Order for Discharge From Probation was submitted by probation officer Ken Whitman for Agent S. Parling. (Defs.'s Mot. Ex. 1, p. 3.) This Order was entered on January 19, 2006 by Judge Morris and the probation violations were dismissed and the term of probation was closed. (Id; Pl.'s Resp. Ex. 4, p. 1.) Plaintiff states that, because of Parling's November 3, 2005 Petition stating that probation was continued, Plaintiff had to continue to report in Illinois in November, December and January even though his Michigan probation had been discharged on October 31, 2005. (Defs.'s Mot. Ex. 12, Cook County Probation Notes, Entries dated 11/03/05-2/06/06.) Plaintiff also provides documentation from his employer, Alpine Paving, where he was employed before he returned to Michigan to clear up the warrant, that it was with deep regret that he had to terminate Plaintiff when Plaintiff again left his job on October 12, 2005 to return to Michigan for yet another court appearance. (Pl.'s Resp. Ex. 29.)


Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may "at any time, move with or without supporting affidavits, for a summary judgment in the party's favor as to all or any part thereof." Fed. R. Civ. P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Chelates Corp. v. Citrate, 477 U.S. 317, 322 (1986). "Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323; See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).

A fact is "material" for purposes of a motion for summary judgment where proof of that fact "would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In ...

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