United States District Court, E.D. Michigan, Southern Division
DENYING SUMMARY JUDGMENT MOTION FILED BY IRA TODD [DKT. NO.
120], DENYING SUMMARY JUDGMENT MOTION FILED BY DENNIS
RICHARDSON [DKT. NO. 124], GRANTING REMAINING SUMMARY
JUDGMENT MOTIONS [DKT. NOS. 121, 122, AND 123] AND DENYING
MOTION FOR ORDER [DKT. NO. 138]
Page Hood Denise Page Hood Chief Judge
Renee Newell filed this 42 U.S.C. § 1983 action on
November 5, 2012, alleging that Defendants violated her
constitutional rights when they obtained an illegal search
warrant from a state court magistrate pursuant to an
application that contained intentionally false statements and
April 11, 2016, Defendant Ira Todd (“Todd”) filed
a Motion for Summary Judgment. [Dkt. No. 120] On April 15,
2016, Defendants Benny Napoleon (“Napoleon”) and
County of Wayne (“Wayne County”) filed a Motion
for Summary Judgment [Dkt. No. 121], Defendants Alex Chahine
(“Chahine”) and Ray Johnson
(“Johnson”) filed a Motion for Summary Judgment
[Dkt. No. 122], Defendant Don Farris (“Farris”)
filed a Motion for Summary Judgment [Dkt. No. 123], and
Defendant Dennis Richardson (“Richardson”) filed
a Motion for Summary Judgment. [Dkt. No. 124] Plaintiff filed
a response to the motions filed by Todd, Richardson, and
Napoleon and Wayne County, and those Defendants have filed
reply briefs. Plaintiff did not file a response to the
motions filed by Farris or Chahine and Johnson. The Court
held a hearing on the motions on July 27, 2016. On August 4,
2016, a Motion for Order Regarding Exhibit 7 to Docket Number
131 was filed by Napoleon, Richardson and Wayne County. [Dkt.
reasons that follow, the Court grants the summary judgment
motions filed by Napoleon and Wayne County, Richardson,
Chahine and Johnson, and Farris. As to Todd and Richardson,
Plaintiff alleges and offers evidence that Todd included, and
Richardson was aware of, several erroneous statements in the
search warrant affidavit. Whether such errors were simply
negligent, reckless or intentional is a question for the
trier of fact and the summary judgment motions filed by Todd
and Richardson are denied. The Court also denies the motion
for order filed by Napoleon, Richardson and Wayne County.
was employed by the Wayne County Sheriff's Department
(the “Department”) as the Jail Monitor/Internal
Compliance Manager for the Wayne County Jail until she was
fired on May 26, 2012. According to Plaintiff, she was fired
for blowing the whistle on wrong-doing with jail commissary
funds and hiring; according to Defendants, she was fired for
violating jail policy, engaging in misconduct, and lying
during an internal affairs investigation. About two months
after she was terminated, Plaintiff became the subject of an
investigation into various communications made to Napoleon
and others, some of which indicated that Eric Smith (who was
then an executive in the Sheriff's Department) needed to
be fired. Dkt. No. 129, Ex. 2, at 37.
20, 2012 a defamatory e-mail, with a PDF attachment, was sent
by a person identified under the fictitious name TomTruth
falsely accusing the Sheriff's Executive Chief, Eric
Smith of being arrested and charged by the U.S. attorney on
federal drug offenses (the “TomTruth email”).
Dkt. No. 124, Ex.1. The email, which was sent to the private
and county email addresses of Sheriff Napoleon and members of
his command staff, stated the following:
Enclosed you will find an authentic criminal docket of an
open federal criminal case against your Executive Chief of
the Wayne County Sheriff's Office, Eric V. Smith. In
1995, Smith was caught, arrested, and charged with being in
the possession of cocaine with the intent to distribute.
Being that you are affiliated with the Wayne County
Sheriff's Office, I believe you should be made aware of
this critical information about your Executive Chief. Note
that a $50, 000 unsecured bond was posted and the case froze,
open. That can only happen with a large amount of money and
superior connections. Nevertheless, the fact remains that
Wayne County Sheriff's Executive Chief Eric V. Smith was
caught with cocaine in his possession which he intended to
distribute. Please feel free to verify the authenticity of
the document Office of U.S. Attorney, 313-226-9100
maintains that whoever sent or assisted in sending the email
had access to both county and personal email addresses of
command staff and appointees. Dkt, No. 124, Ex. 2 at 99. The
TomTruth email referenced a criminal docket sheet from PACER
(USA v. Smith, Case No. 95-mj-80993) that was
included as an attachment saved as a PDF. The docket showed
Eric V. Smith as the defendant in a criminal prosecution by
the United States Attorney for federal drug charges. Dkt. No.
124, at Ex. 1.
after the TomThumb email, Napoleon began to receive text
messages to his personal cell phone that said that, unless
Napoleon fired Eric Smith, his political career would be
over. Dkt. No. 124, at Ex. 3. When Napoleon began receiving
the texts on July 23, 2012, the person sending the texts did
not give any name.
only became aware of the name “Michael Bowles”
(later determined to be Sam Saleh) after Newell's home
was searched. Dkt. No. 124, Ex. 2 at 158, 239; Ex. 5 at 110.
The texts, which came from cell phone number (248) 579-3263
stated the following:
• Your political career is at stake. You need to
call for Erics resignation. Your voting block will not
support you after the series of news releases...”
(Sent July 23, 2012)
• We are allowing you to step forward without PAIN
and SHAME. We are prepared for any
resistance…” (Sent July 23, 2012)
• Wish you well BEFORE PRIMARY. By the way Eric and
Art Blackwell had an interesting conversation that was picked
up. We gave advance warning. You have been QUOTED via your
text “I WILL GO DOWN WITH THE SHIP I sincerely hope you
can defend ES fraudulent activities. (Sent July 30,
• Do self a favor Eric leaves save your career. FBI
is on your office. This is why 7 News held off reporting. You
do not want the skeletons out. Yes we have 20 years of your
misconduct acts. (Sent August 2, 2012.)
Dkt. No. 124, Ex. 3. At some point, Napoleon spoke on the
phone with the person later known as Michael Bowles, and
Napoleon told that person he knew that such person was
responsible for the Tom-Truth email. Docket No. 129, Ex. 7.
Napoleon ordered an investigation shortly after receiving the
first two texts and the TomTruth email. Dkt. No. 124, Ex. 4
at 37-38. The investigation was unusual in that it was
directly ordered by Napoleon. Dkt. No. 129, Ex. 1 at 30-31.
the Deputy Chief, oversaw the investigation, and he received
and reviewed reports and directed activities. Dkt. No. 129,
Ex. 1, at 25-26, 29, 35; Ex. 3 at 27, 29, 34, 36, 39-40; Ex.
4 at p. 63. The investigation was kept confidential-even
within the Department and its Internet Crimes Unit
(“ICU”). Dkt. No. 129, Ex. 3 at 34; Ex. 5 at 13).
Todd, a Detroit Police Department officer on special
assignment to the Department, was the officer in charge of
the investigation, and he reported directly to Richardson.
Dkt. No. 129, Ex. 3 at 36; Ex. 1 at 163, 166; Ex. 12 at 42).
Richardson contacted the ICU and asked Sgt. William
Liczbinski (“Liczbinski”), supervising officer of
the ICU, to review the TomTruth email and determine whether
he could identify who sent it. Dkt. No. 129, Ex. 1 at 48;
Dkt. No. 124, Ex. 6 at 28.
told Richardson that he could not determine who authored or
sent the email because it was sent through a TOR server,
which anonymizes emails. Dkt. No. 129, Ex. 4 at 28-31, 34,
37-46, 51-54, 69-75. According to Liczbinski, it was
virtually impossible to find out the identity of a person
sending email through a TOR network because the message would
travel through a channel of hundreds of thousands of
computers all over the world, bouncing from server to server,
becoming encrypted and re-encrypted until finally it would
randomly be delivered through an exit node. Dkt. No. 124, Ex.
6 at 43-44. Liczbinski also opened the PDF and examined the
properties of the document that accompanied the TomTruth
email. The name “Renee Newell” was listed as
“author.” Dkt. No. 124, Ex. 6 at 30, 49; Ex. 7.
Liczbinski testified that Plaintiff's name appearing as
“author” on the PDF meant that “the
document was authored on a computer that was registered to a
Renee Newell” or “it was authored on a computer
where the software was registered to a Renee Newell.”
Dkt. No. 124, Ex. 6 at 69-70. Although Liczbinski did not
think that proved that Renee Newell was in fact the author,
he agreed that it gave “some indication of the author
or the possible author.” Id. at 30. Liczbinski
was not an actual investigator on the case, nor was he the
affiant on the search warrant, and he was not aware of all of
the facts and details of the investigation. Id. at
76. Richardson told Liczbinski to keep all the information
secret and not tell anyone. Dkt. No. 129, Ex. 4, at 51-54,
63. Liczbinski complied and never told anyone else about his
findings, including Todd. Id. at 63.
then contacted Johnson, a corporal in the ICU, and they met
in Eric Smith's office. Johnson told Richardson and Eric
Smith that he could not determine the source of the email
because it was sent through a TOR server. Dkt. No. 129, Ex. 3
at 27. Johnson made a copy of the text messages between
Napoleon and “Michael Bowles, ” and Johnson
provided a report and a disk of the text messages to
Richardson. Id. at 29. Richardson then talked with
Todd about details of the ICU investigation and the
threatening text messages Napoleon had received. Dkt. No.
129, at 74-75, 100.
The Search Warrant
signed the search warrant for Plaintiff's house and the
supporting affidavit after review and input from Defendants.
Dkt. No. 129, Ex. 12 at 69, 110.
the IP address came back as anonymous, Todd thought the
appearance of Newell's name on the PDF was significant,
stating: “That's not a common name, you know, and
so I concluded it was the same Renee Newell.” Dkt. No.
124, Ex. 2 at 165-66. A data search revealed that Plaintiff
was the only Renee Newell in Detroit. Id. at 285.
Todd also reviewed a letter that Plaintiff wrote to Napoleon
prior to her termination, wherein she claimed she had been
set up. Dkt. No. 124, Ex. 11 at 1-3. In the letter, Plaintiff
blamed several members of the Department's executive
staff, stating that they were out to get her. She also was
highly critical of Eric Smith, telling Napoleon that Eric
Smith viewed himself as the real boss of the Wayne County
Jail and that Eric Smith would “straighten things
out” if Napoleon ever tried to challenge him.
Id. at 13.
reviewed an email from Plaintiff expressing contempt for Eric
Smith and others, in which she stated:
Surely after all this stuff I've been through, the last
thing I need is to be * * * thrown on the ground, belly
slammed, handcuffed and arrested. Although I'm sure that
would make Owen, Heard, Smith and Pfannes's day, maybe a
couple of others.
Dkt. No. 124, Ex. 12. Based on this evidence, Todd thought
there was sufficient evidence to believe that Newell was
I think she was pointing fingers at everybody, especially
Eric Smith. She held them responsible so she was trying to
dig up this dirt and these different lies on different people
because she was upset and she wanted revenge. And she had
access to everybody's e-mail account, everybody's.
Because it went out to a lot of executives so I mean who else
would have had that kind of access from outside of the
office. I believe she had access to that. The language in the
-- I did read a document of a letter that she wrote to Benny
Napoleon and to Captain Bulifant. The language was similar to
the language in the e-mail that Tom Truth sent. There were a
number of things that pointed me at Renee Newell at that
Dkt. No. 124, Ex. 2 at 288-90.
search affidavit prepared by Todd, he indicated that there
was “probable cause to believe that Renee Newell
fraudulently converted, transmitted, and/or created and
authored a fictitious email address and attached
documents…” Dkt. No. 124, Ex. 10. Todd stated:
“I didn't need to know beyond a reasonable doubt. .
.I just needed probable cause . . . I was trying to satisfy
that probable cause standard.” Dkt. No. 124, Ex. 2 at
286-87. In the search warrant affidavit, Todd swore that
Plaintiff authored the attachment to the Smith email. Dkt.
No. 129, Ex. 9; Ex. 12 at 78, 80-83, 88; Ex. 4 at 51-54, 75.
As Todd testified at his deposition, Liczbinski had not said
that; rather, Liczbinski told Todd that he could not tell if
Plaintiff authored the attachment. Dkt. No. 129, Ex. 12 at
78, 80-83. In his affidavit, Todd stated, in part:
On 7-20-12, Sgt. William Liczbinski of the Internet Crimes
Unit conducted an investigation into the origin of the email.
Sgt. Liczbinski was able to determine that the email was sent
using a TOR Server to disguise the email address. However,
Sgt. Liczbinski was able to determine by examining the
properties of the attached document that the document was
authored and created by Plaintiff on 7-20-12 at 12:12:24 am
and the emails were sent out at around 1:37am.
Dkt. No. 129, Ex. 9 at 3.
addition to the statement about who “authored and
created” the document attached to the email, that
sentence also contains an error about when “the
emails” were sent out. Dkt. No. 129, Ex. 10. Based on
the exhibits, it appears that only one email was sent out,
and it was sent out at 1:37 p.m., not 1:37 a.m. Dkt. No. 129,
Ex. 8; Ex. 10. Todd restates these errors later in his
Finally, Investigators were able to determine that the
document authored by Plaintiff was created at 12:12:24 am and
the email was sent at 1:37 am. Because of the late hours and
the document being created in the middle of the night, it is
reasonable to believe that the documents were created at
Plaintiff's residence, located at 18627 Snowden, Detroit,
Dkt. No. 129, Ex. 9 at 4. Todd did not include any
information in the search warrant affidavit about the person
later learned to be “Michael Bowles” or the
communications that person had with Napoleon, including
Napoleon's belief that he knew the person later learned