United States District Court, W.D. Michigan, Southern Division
PHILLIP J. GREEN, United States Magistrate Judge
John Garber filed this lawsuit claiming that the defendants
conspired to have him wrongfully prosecuted for embezzlement,
resulting in his early retirement as the City of
Manistee's Director of Public Works and his election loss
in the city council election. His complaint raises three
federal claims: conspiracy to deprive him of his “free
expression” right to run for public office, contrary to
42 U.S.C. § 1985 (Count I); violation of his First
Amendment right to be a candidate for public office (Count
II), contrary to 42 U.S.C. § 1983; and violation of his
Fourth Amendment rights by conspiring to instigate an
investigation and prosecution for embezzlement that lacked
probable cause, contrary to 42 U.S.C. § 1983 (Count
III). Plaintiff also brings four supplemental state claims:
civil conspiracy to have him wrongfully arrested and to
prevent his election to public office (Count IV); malicious
prosecution (Count V); abuse of process (Count VI); and
intentional infliction of emotional distress (Count VII).
City of Manistee, City Manager Mitchell Deisch, Public Safety
Director (Police Chief) David Bachman, Finance Director (City
Treasurer) Edward Bradford, and Utilities Director Jeffrey
Mikula (collectively “City Defendants”) have
moved for summary judgment on all claims. (ECF No. 42).
Plaintiff has responded (ECF No. 57), and City Defendants
have replied. (ECF No. 60).
Paul R. Spaniola, the elected Mason County Prosecutor,
separately seeks summary judgment as to the counts against
him. (ECF No. 46). Plaintiff has responded (ECF No. 58), and
Defendant Spaniola has replied (ECF No. 59).
has moved to amend his complaint “to clarify the issues
associated with Defendant Spaniola's involvement in this
litigation.” (ECF No. 35, PageID.261). For purposes of
the pending motions for summary judgment, the Court is
considering all the allegations in the proposed amended
complaint. (See Proposed First Amended Complaint,
ECF No. 35, PageID.263-86).
Court conducted oral argument on all the motions. (ECF No.
69). For the reasons stated herein, each of the motions for
summary judgment (ECF No. 42, 46) will be granted. As the
Court has determined that nothing in the proposed amended
complaint would alter the outcome here, plaintiff's
motion to amend the complaint (ECF No. 35) will be denied as
following facts are beyond genuine issue. Plaintiff worked
for the City of Manistee, Michigan, as a full-time employee
from 1971 to his retirement on April 1, 2013. At the time of
his retirement, plaintiff was the Director of the Department
of Public Works. That department collected abandoned scrap
metal from around the city and sold it to a scrap metal
company.Plaintiff's retirement was prompted by
allegations that he had embezzled the city's scrap metal
proceeds, and assertions that he risked losing his pension.
(Garber Dep. at 15, 28-34, ECF No. 47-2, PageID.913, 916-18).
The Criminal Investigation
February 2013, the City of Manistee hired Jeffrey Mikula as
Utilities Director. Mr. Mikula was interested in using the
sale of the City's scrap metal as a source of funding.
While looking into that matter, he learned of the existence
of a check from the Padnos Scrap Metal Company made payable
to plaintiff, which was in the DPW safe. The check was dated
February 26, 2013, in the amount of $901.60. Mr. Mikula told
City Treasurer Edward Bradford, of the discovery of the
check. (Miller Report at 4-5, 35; ECF No. 43-2;
after receiving this information, Mr. Bradford asked
plaintiff to bring the check to the treasurer's office so
that it could be deposited into the city's bank account.
Mr. Bradford then began a review of the city's financial
records to determine whether there had been any misuse of the
scrap metal funds. He obtained records from Padnos relating
to the city's sales of scrap metal dating back to 2006.
(Id. at 5, PageID.382).
records indicated that Padnos did not follow a uniform
procedure for issuing payment for the city's scrap metal.
In some instances, the company issued checks payable to the
“City of Manistee”; in other instances, it issued
checks payable to “John Robert Garber, ”
“Jack Garber, ” and “Ed
Cote.” (Id.). Mr. Bradford compared the
Padnos checks against the record of deposits. He discovered
that two of the checks made payable to “John Robert
Garber” in July 2012 had never been received by his
office, nor had they been deposited into the city's bank
account. (Id.). One of the checks was dated July 20,
2012, and the other July 23, 2012. Both checks included
plaintiff's home address. The checks totaled $2, 129.46.
(Id. at 7, PageID.384). They were both endorsed by
plaintiff and deposited into his personal account at the
Filer Credit Union. (Id. at 33, PageID.410). The
City of Manistee did not have an account at that credit
union. (Id. at 5, PageID.382).
March 27, 2013, Mr. Bradford informed City Manager Deisch of
the two checks in question. Mr. Bradford advised Mr. Deisch
that there was no record that the funds from these checks had
ever been deposited into the city bank account. (Miller
Report at 7, PageID.384). Also on that day, Manistee City
Police Department Detective John Riley contacted Michigan
State Police Detective Mark Miller, and informed him of a
potential complaint involving embezzlement of city funds.
Detective Riley asked that, due to the police
department's potential conflict of interest, the Michigan
State Police assume responsibility for conducting the
criminal investigation. (Id. at 4, PageID.381).
morning of the next day, March 28, Police Chief David Bachman
advised plaintiff of the concerns that plaintiff was
converting the city's scrap metal proceeds to his
personal use. Plaintiff denied having ever personally
endorsed a Padnos check, and he stated that he would have
turned over all such checks to the City Treasurer's
Office. City Manager Deisch placed plaintiff on paid
administrative leave pending an investigation into the
matter. (Id. at 9, PageID.386).
that same day, Detective Miller met with the following city
officials: Police Chief Bachman, Detective Riley, City
Treasurer Bradford, and Utilities Director Mikula. Detective
Miller was given information and documents that had already
been obtained from Padnos and the city's finance
department. Detective Miller delayed the beginning of his
investigation pending the city's receipt of copies of the
cancelled checks in question. He began his investigation on
April 1, 2013. (Miller Report at 4-5, PageID.381-82).
meantime, on Easter Sunday, March 31, 2013, Police Chief
Bachman went to plaintiff's residence, at plaintiff's
request. Plaintiff provided Chief Bachman a sealed envelope
addressed to the chief. Plaintiff advised the chief that the
envelope contained a letter concerning the scrap metal issue.
Plaintiff also mentioned something about the Department of
Public Works and the Sewer and Water Departments always
having “slush funds” on hand. Chief Bachman did
not open the envelope, but rather, took it to City Manager
Deisch's home, and left it with him. Mr. Deisch did not
open the envelope until the next morning. (Id. at 9,
PageID.386). The envelope contained a one-page letter, dated
March 29, 2013, in which plaintiff explained the past
practice for the use of the city's scrap metal
proceeds. In the letter, plaintiff denied ever
converting city funds to his own use, asserting that the
scrap metal proceeds were used for “retirements,
cookouts, Christmas Parties and buying some
tools.” (Id. at 11, PageID.388). Mr.
Deisch returned the letter to Chief Bachman the same day.
(Id. at 9, PageID.386). The letter was later turned
over to Detective Miller. (Id. at 11, PageID.388).
April 1, 2013, plaintiff contacted City Manager Deisch, and
plaintiff submitted an official request to be placed on
retirement status. Mr. Deisch granted that request. (Miller
Report at 7, PageID.384). The next day, Mr. Deisch issued a
press release announcing plaintiff's retirement in which
he noted: “I can confirm after being asked by the media
that an investigation has been initiated by the Michigan
State Police concerning activities of Mr. Garber in his
official duties as a City employee. No further comments will
be made until the official investigation is completed by the
Michigan State Police.” (ECF No. 57-10, PageID.1606).
Miller interviewed Mr. Deisch on April 2. Among other things,
Mr. Deisch advised the detective that, when he began his
tenure as City Manager in 2001, there had been a practice in
place in which the city's scrap metal proceeds were used
to pay for employee picnics and Christmas parties. This
included the purchase of alcohol. Mr. Deisch put a stop to
the purchase of alcohol with city funds, but the use of city
funds to otherwise pay for these social events continued. To
his knowledge, no employee was ever given permission to use
city funds for personal use. (Miller Report at 6-8, ECF No.
Treasurer Bradford also advised Detective Miller that no
employee had been given authorization to use city funds for
personal use. Mr. Bradford explained that the issue of the
use of the city's scrap metal proceeds had been discussed
during a meeting in the previous few years, and that he had
informed plaintiff of the requirement that any such funds be
deposited into the city's bank account. (Id. at
Miller interviewed a number of city employees and former
employees. Many of these individuals indicated either that
the city did not have a formal policy regarding the handling
of the city's scrap metal, or that they had no knowledge
of such a policy. (Miller Report at 12-31, PageID.389-408).
Edward Cote, a retired supervisor of the City Water
Department, and then member of the Manistee City Council,
advised the detective that the city's scrap metal
proceeds had previously been used for Christmas and
retirement parties, and that he had once obtained permission
from City Manager Deisch and City Treasurer Bradford to
purchase a refrigerator and other items for the Waste Water
Treatment Plant. Detective Miller obtained records indicating
that a couple of Padnos checks were made payable to Mr. Cote,
which were deposited into the city's bank account.
(Id. at 22-23, PageID.399-400). The detective
obtained from Mr. Bradford a copy of a letter, dated June 18,
2007, documenting Mr. Cote's request to use scrap metal
proceeds to purchase the refrigerator and other items for the
Waste Water Treatment Plant. (Id. at 22,
his investigation, Detective Miller obtained records from
Padnos concerning the City of Manistee's sale of scrap
metal. These records showed fifteen scrap metal sales
involving plaintiff between November 29, 2006, and July 23,
2012. In twelve of these transactions, checks were issued
payable to plaintiff; in the three others, plaintiff was paid
in cash. All twelve checks were endorsed by plaintiff and
either deposited into his account or cashed at the Filer
Credit Union. The records also reflected two Padnos checks
made payable to another Department of Public Works employee,
which were endorsed by plaintiff and deposited into his
personal account at the Filer Credit Union. The funds
involved in the seventeen transactions totaled $9, 357.83.
City Treasurer Bradford advised Detective Miller that he had
no information or documentation that any of these funds were
ever deposited into the city's bank account or turned
over to the City Treasurer's Office. (Miller Report at
Padnos records also included eight transactions involving the
sale of the City of Manistee scrap metal from August 16,
2006, and December 4, 2012, by employees other than
plaintiff. The total proceeds of these transactions was $10,
883.49. Records reflect that the proceeds from each of these
eight transactions were deposited into the city's bank
account. (Id. at 34, PageID.411).
April 29, 2013, Manistee County Chief Assistant Prosecutor
Jason Haag reviewed and approved an affidavit and search
warrant for records relating to plaintiff's account at
the Filer Credit Union. (Id. at 36, PageID.413).
April 30, 2013, 85th District Judge Brunner authorized a
search warrant based on the affidavit approved by Mr. Haag.
(Id.). The credit union provided records dating back
to May 2007 (prior records had already been purged), which
reflected eight transactions in which plaintiff deposited
Padnos checks into his personal account and then made an
immediate cash withdrawal in the same amount. There were no
credit union records found relating to cash payments Padnos
made to plaintiff. (Id. at 38, PageID.415).
Miller contacted plaintiff's then-attorney, Mark Quinn,
on August 19, 2013, requesting an interview with plaintiff.
Mr. Quinn stated that he would discuss the request with
plaintiff and advise the detective of plaintiff's
response the following week. Detective Miller did not hear
back from Mr. Quinn. (Miller Report at 38, PageID.415).
August 29, 2013, Detective Miller submitted a complaint
against plaintiff to the Manistee County Prosecuting
Attorney. The county prosecutor, citing a conflict of
interest, asked the Michigan Attorney General's Office to
assign the case to another prosecutor. Detective Miller was
informed on October 8, 2013, that plaintiff's case had
been assigned to Mason County Prosecutor Paul Spaniola.
(Id. at 39, PageID.416).
October 11, 2013, Prosecutor Spaniola asked Detective Miller
to conduct three additional interviews: former Manistee City
Manager Ben Bifoss, former Manistee Director of Department of
Public Works Dale Picardat, and former Manistee City
Treasurer Ken Oleniczak. (Id.). Plaintiff had
identified these three individuals in his March 29, 2013,
letter to Police Chief Bachman as individuals who could
support his explanation for the handling of scrap metal sales
and the use of the sales' proceeds. (See Id. at
11, 39; PageID.388, 416).
Bifoss advised Detective Miller that he did not recall the
specifics of how the City of Manistee handled scrap metal
sales or the proceeds of those sales, but he stated:
“[C]learly, any proceeds coming into the City from any
source would need to go directly to the City.” Mr.
Bifoss acknowledged that some of the scrap metal proceeds
could have been used for employee parties or picnics. (Miller
Report at 40, ECF No. 43-2, PageID.417).
Picardat stated that he was unaware of any scrap metal
proceeds being used to fund employee parties or picnics, or
to purchase tools. He denied the existence of any
“slush fund.” Mr. Picardat advised that, while he
had not been specifically told to submit all sales proceeds
to city hall, he knew to do that, describing it as an ethical
Oleniczak told Detective Miller that, during his time with
the city, scrap metal was sold to a local scrap dealer, and
that the dealer made the payments directly to the city. He
advised that, to the best of his knowledge, no city money was
used to fund parties or picnics. (Id. at 41,
October 29, 2013, Prosecutor Spaniola obtained a misdemeanor
warrant against plaintiff on the charge of embezzlement -
agent or trustee, at least $200 but less than $1, 000, Mich.
Comp. Laws § 750.174(3). (Miller Report at 42, ECF No.
43-2, PageID.419). Mr. Spaniola made the probable cause
decision himself, without consulting anyone else. (Spaniola
Dep. at 16-17, ECF No. 47-1, PageID.891). He testified that
the Prosecuting Attorney for Manistee County had led him to
believe “that [plaintiff] having no prior record would
be amenable to a quick disposition on a misdemeanor
basis.” (Id. at 13, PageID.890).
November 1, 2013, plaintiff was arraigned on the misdemeanor
embezzlement charge. Later that day, Mr. Spaniola issued a
press release, announcing the misdemeanor charge against
plaintiff. (ECF No. 43-17, PageID.848). The press
release included the potential maximum penalties for
conviction, the fact that plaintiff had been released on
bond, that Mr. Spaniola had been appointed special
prosecutor, the specific allegations underlying the
misdemeanor charge, and the name of plaintiff's counsel
(Mark Quinn). (Id.). The press release ended with
the admonition that plaintiff “is presumed innocent of
this charge unless proven guilty in a court beyond a
reasonable doubt.” (Id.). The press release
resulted in media reports in the local newspaper.
(See ECF No. 57-11, PageID.1614).
Spaniola offered plaintiff various plea resolutions,
including a dismissal of the charge in exchange for
plaintiff's agreement to pay the city restitution.
(Spaniola Dep. at 26, ECF No. 47-1, PageID.894). Mr. Quinn
sent Mr. Spaniola a letter, dated March 26, 2014, advising
that plaintiff had rejected the plea offers, including that
he was “unwilling to make a financial offer that may
result in the dismissal of charges.” (ECF No. 58-13,
PageID.1903). Consequently, Mr. Spaniola decided that he
would no longer “cut [plaintiff] a break” and
that he would file felony charges. (Spaniola Dep. at 25, ECF
No. 47-1, PageID.893).
April 3, 2014, Prosecutor Spaniola obtained a three-count
felony warrant against plaintiff, charging embezzlement -
agent or trustee, at least $999 but less than $20, 000, Mich.
Comp. Laws § 750.174(4); public money - safe keeping,
Mich. Comp. Laws § 750.490; and embezzlement - public
official, Mich. Comp. Laws § 750.175. (Miller Report at
43, ECF No. 43-2, PageID.420). On April 15, 2014, plaintiff
was arraigned on these charges. (Id.). The felony
charges were reported in the media. (See ECF No.
preliminary hearing on the felony charges was held on May 7,
2014, before Manistee County District Judge Thomas Brunner.
During the preliminary hearing, nine witnesses testified for
the prosecution, including Utilities Director Jeffrey Mikula,
City Treasurer Edward Bradford, and City Manager Mitchell
Deisch. (Prelim. Tr., ECF No. 47-4). Messieurs Mikula,
Bradford, and Deisch each testified either that he was not
aware of, or did not recall, the city having a written policy
concerning the disposal of scrap metal during plaintiff's
employment. (Id. at 15, 39, 64, PageID.1019, 1043,
1069). Mr. Bradford testified, however, that he had twice
advised plaintiff that any check reflecting the proceeds of
the sale of the city's scrap metal needed to be brought
to City Hall, and that all scrap metal proceeds had to be
processed through the city. (Id. at 31,
conclusion of the preliminary hearing, plaintiff's
counsel, Mr. Quinn, argued, among other things, that the
historical use of the city's scrap metal proceeds for
employee functions, coupled with a lack of a written policy
regarding the use of those proceeds, precluded a probable
cause finding of a knowing and unlawful appropriation of city
funds for plaintiff's own use. (Id. at 165-66,
PageID.1170-71). Judge Brunner disagreed.
found that the prosecution had met its burden of establishing
probable cause that plaintiff committed the three felony
offenses Mr. Spaniola had charged. Among other things, the
judge noted the following:
The primary focus of the prelim pertains to two checks issued
by Padnos, exhibits one and two. Exhibit one is a check dated
July 23, 2012, in the amount of $1787.53. The exhibit two is
a check issued by Padnos on July 20, 2012, in the amount of
$343.93. The payee on both of those checks is set forth as
John Robert Garber, the Defendant in this case. Both checks
were endorsed by John Robert Garber at Filer Credit Union in
Manistee County. Mr. Garber had a personal account there. Mr.
Garber, at the time of the cashing of these checks, was the
Director of Public Works in the City of Manistee. The
evidence indicates that these two checks were not endorsed
over to the City of Manistee. There's no indications of
any accountings from the Public Works Department in regard to
the disposition of the proceeds.
. . .
These two particular checks, it's sufficient probable
cause that they did come to Mr. Garber in his official
capacity. The question becomes was there an unlawful knowing
and unlawful appropriation of this money to his own use? In
this case, the money was taken to - the checks were taken to
the Filer Credit Union, they were cashed, and Mr. Garber
received the cash from the bank. The two checks in question
show that as having happened. The exhibit six shows the
checks being cashed and the cash back, being provided to Mr.
Garber. So that's what we have at this juncture of a
probable cause hearing. We have City property, the scrap
metal proceeds, having been check cashed, turned into cash,
and the cash is in the pocket of Mr. Garber.
(Prelim. Tr. at 170-72, ECF No. 47-4, PageID.1175-77). Judge
Brunner bound plaintiff over to circuit court on all three
felony charges in the complaint. (Id. at 174,
August 2014, Mr. Quinn filed a motion to quash Judge
Brunner's bind-over order. (Spaniola Dep. at 29, ECF No.
47-1, PageID.894). On November 20, 2014, Circuit Court Judge
James Batzer held a hearing on that motion. Mr. Quinn
conceded that plaintiff had received the city's scrap
metal proceeds at issue, but he argued that there was
insufficient evidence to establish probable cause that
plaintiff knowingly and unlawfully converted the money to his
own use, which is required to support each of the three
charges. (Mtn Tr. at 4-11, ECF No. 57-6, PageID.1581-83).
Circuit Judge Batzer agreed:
Well, the problem that the prosecutor has in this case is
that they can't show on a probable cause basis that this
defendant dishonestly disposed of the money, or converted it
to his own use, or took the money with the intent to convert
it to his own use without consent of the city, or that he
used it for an unauthorized purpose.
(Id. at 22-23, PageID.1585-86). The judge quashed
the bind over. (Id. at 31, PageID.1588).
Spaniola elected not to appeal the dismissal of the case. In
a January 14, 2015, email, Detective Miller asked Prosecutor
Spaniola whether he should close the case and destroy any
property he obtained during the course of the investigation.
In response, Prosecutor Spaniola stated: “Yes, go ahead
and destroy the property and close the complaint as
‘case dismissed by Judge.' ” (Email from Paul
Spaniola to Mark Miller, dated Jan. 14, 2015, ECF No. 43-2,
filed the necessary paperwork to seek election to a vacant
city council position in May 2013, a month after his
retirement from the Department of Public Works. (Garber Dep.
at 52-53, ECF No. 43-7, PageID.537). Plaintiff did not have
election signs published or prepared. The election took place
November 5, 2013, with Mark Wittliff being elected to the
position. Plaintiff came in second in the three-way race,
approximately fifteen votes behind Mr. Wittliff and roughly
thirty votes ahead of the third-place candidate. No one told
plaintiff that he or she would have voted for him but for the
criminal charges pending against him. (Id. at 58-60,
Spaniola testified that he was unaware that plaintiff was
running for elective office until sometime after he decided
to file criminal charges against him. (Spaniola Dep. at 16,
ECF No. 47-1, PageID.891).
filed the instant lawsuit on May 2, 2016.
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d
862, 866 (6th Cir. 2016). The standard for determining
whether summary judgment is appropriate is “whether
‘the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.' ”
Rocheleau v. Elder Living Const., LLC, 814 F.3d 398,
400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)). The Court must
consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in
favor of the party opposing the motion. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); France v. Lucas, 836 F.3d
612, 624 (6th Cir. 2016).
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials “negating” the
opponent's claim. See Morris v. Oldham County Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party's case,
” the nonmoving party has the burden of coming forward
with evidence raising a triable issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain
this burden, the nonmoving party may not rest on the mere
allegations in his pleadings. See Ellington v. City of E.
Cleveland, 689 F.3d 549, 552 (6th Cir. 2012); see
also Scadden v. Werner, 677 F. App'x 996, 1001 (6th
Cir. 2017). The motion for summary judgment forces the
nonmoving party to present evidence sufficient to create a
genuine issue of fact for trial. Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521,
533 (6th Cir. 2012). “A mere ...