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Webb v. United States

United States Court of Appeals, Sixth Circuit

June 17, 2015

JOSHAWA WEBB (14-3443); HERMAN PRICE (14-3444), Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA, et al., Defendants-Appellees

Argued January 16, 2015.

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Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:07-cv-03290; 1:09-cv-00118; 1:10-cv-01673--Christopher A. Boyko, District Judge.

ARGUED:

Jon Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellants.

Daniel T. Downey, FISHEL HASS KIM ALBRECHT LLP, Columbus, Ohio, for Richland County Appellees.

Thomas G. Roth, Belle Meade, New Jersey, for Appellee Lucas.

Lowell V. Sturgill Jr, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees.

ON BRIEF:

Jon Loevy, Debra Loevy-Reyes, LOEVY & LOEVY, Chicago, Illinois, for Appellants.

Daniel T. Downey, Paul M. Bernhart, FISHEL HASS KIM ALBRECHT LLP, Columbus, Ohio, for Richland County Appellees.

Thomas G. Roth, Belle Meade, New Jersey, Joel J. Kirkpatrick, Plymouth, Michigan, for Appellee Lucas.

Lowell V. Sturgill Jr, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellees.

Michael M. Heimlich, Delaware, Ohio, for Appellee Metcalf.

Jennifer M. Meyer, CITY OF CLEVELAND, Cleveland, Ohio, for Appellee Ansari.

Before: BOGGS, SILER, and CLAY, Circuit Judges.

OPINION

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BOGGS, Circuit Judge.

Plaintiffs-Appellants Joshawa Webb and Herman Price (a.k.a. Ronald Davis) appeal the district court's grants of summary judgment and dismissals of their claims in their civil-rights actions against Defendants-Appellees Drug Enforcement Agency (DEA) officers Lee Lucas, Robert Cross, Thomas Verhiley, and Jamaal Ansari; Richland County Sheriff's Office (RCSO) officers Chuck Metcalf, Matt Mayer, and Larry Faith; and the United States. The Plaintiffs argue that the district court erroneously held that: (1) Price lacked standing to sue; (2) qualified immunity shielded each of the law-enforcement Defendants from the Plaintiffs' Bivens and § 1983 claims for malicious prosecution, false arrest, fabrication of evidence, and conspiracy to deprive civil rights; and (3) the Plaintiffs' state-law tort claims against the individual Defendants and Federal Tort Claims Act (FTCA) claims against the United States must be dismissed.

For reasons set forth below, we reverse the district court's decision that Price lacked standing. We also reverse the grants of summary judgment to: Lucas and Metcalf with respect to Webb's malicious-prosecution claim; Lucas, Metcalf, and Faith with respect to Price's malicious-prosecution claim; Lucas with respect to Webb's false-arrest claim; Lucas, Metcalf, and Cross with respect to Webb's fabrication-of-evidence claim; Lucas, Metcalf, and Faith with respect to Price's fabrication-of-evidence claim; Lucas, Metcalf, and Cross with respect to Webb's federal conspiracy claims; and Lucas, Metcalf, and Faith with respect to Price's federal conspiracy claims. Price's false-arrest and trespass claims under the FTCA are time barred. We reverse and remand the Plaintiffs' state-law and remaining FTCA claims and affirm the remaining

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dismissals and grants of summary judgment.

I. Background

A. Operation Turnaround

Webb and Price were separately arrested and charged as part of " Operation Turnaround," a " corrupted investigation into the Mansfield, Ohio, drug trade." Robertson v. Lucas, 753 F.3d 606, 610 (6th Cir. 2014); see also Brown v. United States, 545 F.App'x 435 (6th Cir. 2013); Mott v. Mayer, 524 F.App'x 179 (6th Cir. 2013). The RCSO launched Operation Turnaround after discovering the body of Timothy Harris in Richland County, Ohio on December 31, 2004. Webb v. Lucas, No. 1:07-cv-3290, 2013 WL 1303776, at *2 (N.D. Ohio Mar. 28, 2013). His death was believed to be drug related. Ibid. The RCSO recruited Jerrel Bray as a confidential informant to make undercover buys of illegal drugs from suspected drug traffickers in Mansfield. Ibid. In August 2005, DEA Agents Lucas and Cross joined the investigation at RCSO's request and registered Bray as a DEA informant. They were assisted by DEA Task Force Officers Ansari and Verhiley. Bray's first controlled buy as a DEA informant occurred on September 6, 2005.

Each controlled buy was supposed to proceed as follows. Bray and the RCSO officers would identify a target and inform the DEA agents, who would supply the buy money and travel from Cleveland to assist. Bray would place a phone call to the target. Investigators would search Bray and his vehicle before the buy and follow Bray to the location of the buy, attempting to view or record the transaction when possible. After the buy, they would follow Bray back to the sheriff's office, search Bray's person and vehicle, and take a statement from Bray.

Mott, 524 F.App'x at 181.

On the basis of Bray's controlled buys, law-enforcement officials arrested and charged over two dozen individuals with violating federal criminal drug laws. Webb and Price were among these individuals. Lucas was the case agent who testified before the grand jury that indicted Webb and Price. Following the completion of Operation Turnaround, Bray, while he was in jail for killing a man in an unrelated Cleveland drug deal, disclosed that Lucas conspired with him to frame innocent individuals--including Webb and Price.

This admission prompted the Office of Inspector General (OIG) of the United States Department of Justice to launch an investigation, which revealed that numerous Operation Turnaround targets--including Webb and Price--did not participate in the drug deals for which they were charged. Bray had used stand-ins to participate in the drug deals and then falsely identified each stand-in as an Operation Turnaround target. Robertson, 753 F.3d at 612. Bray later testified that Lucas did not conspire with him to frame targets and that he acted on his own initiative. In any event, the OIG concluded that law-enforcement officials supported Bray's false identifications by knowingly making false reports and testimony and by covering up his misdeeds.

For example, a stand-in was used to frame . . . Dwayne Nabors. Metcalf has admitted that he lied during Nabors's criminal trial, including admitting to a false identification of Nabors. Ansari also falsely identified Nabors in the alleged drug transaction. Lucas and Metcalf lied to the prosecutor about whether there was video taken of the transaction,

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although Metcalf himself had operated the video camera.
Bray used the controlled buys to steal money and drugs. [Law-enforcement officers] were aware of this fact yet continued to use Bray as an informant. On one occasion, Verhiley and Ansari caught Bray stealing money given to him for a drug buy. On another occasion, Bray accepted a Buick Cutlass (a car) in lieu of some of the money that was supposed to be paid as part of the drug deal. In effect, Bray was shorting the government the value of the car. Bray, however, was caught on [a] recording discussing the " Cutty." When Bray was questioned about the conversation, he claimed it was a comment about a " Caddy" (Cadillac) that he had been interested in purchasing, but Lucas stepped in on Bray's behalf and asserted that " Cutty" was another term for drugs.
Efforts to corroborate Bray's information were stymied by Bray, and law enforcement disregarded accepted protocol. For example, the first step in a controlled buy was typically a controlled phone call to the target. Appellants produced evidence indicating that Bray dialed identical telephone numbers for unrelated suspects and lied about which suspects he was calling and that the official reports did not accurately reflect the phone conversations Bray had. Bray at times turned off his wireless transmitter during buys. Metcalf also admitted that " the manner in which the Webb deal was conducted violated DEA procedures" and " was not the way that a standard deal should go."

Ibid. Bray pleaded guilty to two counts of perjury and five counts of violation of civil rights[1] The government dismissed the charges against all Operation Turnaround targets and prosecuted Metcalf and Lucas. Metcalf pleaded guilty to one count of violating Dwayne Nabors's civil rights by falsely testifying in his criminal trial. The United States charged Lucas with making false statements, violation of civil rights, obstruction of justice, and perjury. The jury found Lucas not guilty. Despite the verdict, a 2011 OIG investigation concluded that Lucas falsified reports and testimony to corroborate Bray's false identifications.

B. Targeting Webb

According to Lucas's DEA Report of Investigation (DEA-6 report), the Webb drug buy was set up in a recorded phone call between Bray and Webb on October 13, 2005. In the recorded call, titled DEA Exhibit N-17 (N-17 recording), the two spoke about selling cars. At one point, the call transcript shows that Webb said that he entered into an automobile transaction for $1000 " and the H." In 2010, Webb clarified that " H" was a mis-transcription for " eighth," which was a unit of measurement for drugs that he had sold to an unrelated party in the past. Law-enforcement officers did not recognize the error or its meaning at the time. The recorded conversation contained no other references to drugs. Towards the end of the call, Bray stated that he would have " a couple stacks tomorrow" for Webb. Lucas reported that " 'two stacks' tomorrow" was " code for $2000 to purchase crack." Webb admits to having this conversation with Bray. However, he disputes that " a couple stacks" referred to drug-buy money and that the conversation took place on October 13. The DEA searched phone records but was unable to find evidence of a call between Webb and any phone number that was associated with Bray on October 13. Bray also denied that the call occurred on

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October 13 in an interview with OIG investigators.

At approximately 4:00 PM on October 14, 2005, Lucas, Cross, Metcalf, Mayer, and Verhiley accompanied Bray to a controlled drug buy at a Mansfield gas station with an individual Bray falsely identified as Webb. Lucas drove to the gas station where Bray awaited him in a car with tinted windows. The other officers followed in separate cars and provided surveillance. Lucas got into the back seat of Bray's car. While in Bray's car, Bray introduced to Lucas the person sitting in the passenger seat as " Josh," i.e., Joshawa Webb. In fact, " Josh" was Jeremiah Conrad. Bray testified that he selected Conrad to act as Webb's stand-in because they were similar in appearance--both were white males with shaved heads and visible tattoos. However, whereas Webb was 6'3" tall and weighed 260 pounds, Conrad was only 5'9" tall and, as Bray testified, was not " husky" or " stocky" like Webb. Conrad also did not have missing teeth and did not wear an earring as Webb did. Conrad testified that his tattoos, which included a " FTW" tattoo on the right side of his neck and a Chinese character on the left side of his neck, could not have been mistaken for the " bizarre" tattoos that Webb had. Webb alleges that Mayer shot a videotape of the transaction, which has since disappeared, that included a clear shot of Conrad through the front windshield. Webb's Br. at 15. Bray stated in an early interview with OIG investigators that he watched this video at a later time with Lucas, Metcalf, and Mayer, and that Metcalf expressed skepticism that the person in Bray's passenger seat was Webb but that Lucas shut Metcalf down. Lucas's DEA-6 report does not mention the videotape, but Lucas later blamed Mayer for the missing videotape. The transaction was captured on an audio recording device that Lucas wore while in Bray's car. This recording was titled DEA Exhibit N-18 (N-18 recording). Three forensic experts have concluded that someone had tampered with the N-18 recording.

After the deal ended, Lucas viewed a photograph of Webb and confirmed that the person he met in the car was in fact Webb. On the sole basis of Lucas's report, an Assistant United States Attorney brought charges against Webb. Lucas testified against Webb before a grand jury on November 8, 2005:

October 14, 2005 Joshawa Webb, another one of their guys that was involved out there, dealing with a lot of--he was the connection to a lot of the white guys that were buying drugs. I was introduced to Joshawa Webb. I met him in a parking lot. He had several contacts with the police before. He was real careful on the phone. I had to go meet him, do the deal. We didn't have--the contact before would say we've got two stacks. A stack is $1,000. I met him with the informant, got in the back seat of the car, he pulled out 85.4 gross grams of crack cocaine, was 2--and--a--half ounces. I think it weighed 63 grams, something like that when I weighed it out. He pulled it out of his pocket, pulled out the scale, weighed it. Turned around, weighed it on the center console, I gave him I think it was 2000 or $2,500 that day I bought from Joshawa Webb on October 14, 2005.

Webb, 2013 WL 1303776, at *14. On the basis of this testimony, the grand jury returned an indictment against Webb for drug-related offenses on November 9, 2005. Lucas and two other police officers arrested Webb on the same day.

C. Targeting Price

On October 25, 2005, Bray told law-enforcement officers that he could set up a controlled buy with an individual named " Ronald Davis." " Ronald Davis" was an

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alias used by Herman Price, but Bray did not learn of this until after Price had been indicted and arrested. In 2003, Price fled Michigan after he pleaded guilty to state drug and gun offenses and agreed to a seven-year term of incarceration. Price paid his brother-in-law, the actual Ronald Davis, one thousand dollars for the use of Davis's name, birth certificate, and Social Security card so that Price could hide his criminal record.

Also on October 25, 2005, Metcalf and Lucas recorded and monitored two calls that Bray placed to set up the controlled buy. According to Lucas's report, at 2:05 PM, Bray called a phone number associated with Price. Bray actually called his own girlfriend's cellphone and spoke with Shay Shay Moxley, a female friend of his girlfriend, to set up a controlled buy. Lucas's DEA-6 report noted that Bray spoke to a woman named " Lil S" about the drug deal. At 2:08 PM, Metcalf and Lucas monitored and recorded a second call that Bray placed to Marcus English, whom Bray identified to the officers as Price. English was in fact Price's cousin. After identifying himself and exchanging pleasantries with English, Bray said " I'm about to come. I need to holler at you." The two then agreed to meet on South Adams Street ten minutes later.

After these calls, Faith and Metcalf drove to Price's home on 121 Glessner Avenue. According to Lucas's DEA-6 report and Faith's affidavit for a search warrant of the home, Faith and Metcalf identified Price, observed him departing 121 Glessner Avenue in a silver car, and followed him to 187 South Adams Street. Faith and Metcalf would later admit that they did not see anyone depart 121 Glessner Avenue. While they saw someone driving a silver Caprice on Glessner Avenue, they neither identified the driver nor attempted to follow him. The driver of the silver car was actually English, not Price. Faith's affidavit noted that " Price" drove a Chevy Caprice with the license plate DOJ-6183, which ultimately was found to be registered to English's girlfriend. Lucas wrote in his report that " Price" drove a Lincoln, which was the type of car registered to Price. At the same time, Lucas drove to 187 South Adams Street and dropped off Bray, who was wearing a concealed recording device. English arrived shortly thereafter, met Bray outside of the house, and entered the house with Bray. Inside the house, Bray asked to buy drugs from English, and English responded that " I can definitely get it." English also told Bray that " I got your number . . . . I'll call you back with a price." After this conversation, Bray left the house and called Shay Shay to tell her that he was coming to her on Glessner Avenue. Bray then told Lucas that they needed to return to Glessner Avenue to buy drugs from " Price's girl." Lucas agreed, even though he had monitored the conversation inside the house and therefore should have known that Bray and English/Price had made no such agreement.

According to Bray's 2007 statements to OIG investigators, while driving back to Glessner Avenue to buy drugs from " Price's girl," Bray disclosed to Lucas that Bray's friend Shay Shay was actually the one bringing the drugs. At that point, Lucas told Bray to turn off the recorder. After turning off the recorder, Bray explained that he was using Shay Shay as a standin to frame Price, and Lucas allegedly agreed to the scheme. Bray later recanted this allegation while testifying at Lucas's criminal trial in 2010. Nonetheless, the audio recording captured Lucas telling Bray to shut off his recorder.

Bray and Lucas picked up Shay Shay, whom Bray falsely identified as Geneva France, near 121 Glessner Avenue, and Bray turned the recorder back on. Lucas

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bought drugs from Shay Shay in the car. Lucas claimed that the drugs were " a little light" and asked Bray to call Price and reduce the sales price. Bray testified at Lucas's criminal trial that he pretended to dial the phone and had a fake conversation with Price, in which Price supposedly agreed to give $200 back, in order to strengthen the evidence of Price's involvement. Phone records confirm that Bray did not call Price, or anyone else, at that time. Lucas nonetheless reported and testified that he heard Price instruct Shay Shay to give a $200 discount on the other end of Bray's non-existent phone call. After the deal, Lucas reported and testified that Bray called Price again and that Price let Bray know that he had followed them and " watched everything go down." There is also no record that this second call ever took place.

On November 8, 2005, Lucas gave the following testimony before a federal grand jury:

On October 25, 2005 in Mansfield, Ohio an informant made tape recorded telephone calls to Ronald Davis, setting up a purchase of two-and-a-half ounces of crack cocaine. I went with the informant to an address on South Adams Street. The informant got out of the car, met with Ronald Davis. The informant had a tape recorder. At this time Ronald Davis had a pistol in his hand when he met with the ...

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