Demetrios Prokos v. CITY OF ATHENS, RONALD BROOKS and WILLIAM BIDDLESTONE

1The Honorable Denise Page Hood, United States District Judge for the Eastern District
of Michigan, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0187n.06
Filed: December 21, 2004
No: 02-4291
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEMETRIOS PROKOS, )
)
Plaintiff-Appellant, )
) On Appeal from the United States
) District Court for the Southern
) District of Ohio
v. )
)
CITY OF ATHENS, )
RONALD BROOKS and )
WILLIAM BIDDLESTONE, )
)
Defendants-Appellees. )
______________________________________________________________________________
Decided and Filed: _____________________
Before: BOGGS, Chief Judge; GUY, Circuit Judge, and HOOD, District Judge. 1
DENISE PAGE HOOD, District Judge. Appellant Demetrios Prokos appeals from the
judgment entered by the United States District Court for the Southern District of Ohio. On October
3, 2002, the Honorable James L. Graham granted summary judgment to Appellees William
Biddlestone and Ronald Brooks, which led to this appeal. For the reasons set forth below, we affirm
the district court’s order.
I.

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This action stems from a March 28, 1999 fifteen-count grand jury Indictment against
Appellant involving charges of extortion and theft before the Court of Common Pleas, Athens
County, Ohio. (J.A. 286). Nine of the charges were dismissed by the trial court at the conclusion
of the State’s case. One charge was voluntarily dismissed by the prosecution, and the jury acquitted
Mr. Prokos of the other five charges. Appellant subsequently filed a civil lawsuit against the City
of Athens, Ohio, Appellee Brooks, a police officer, and Appellee Biddlestone, an Ohio prosecutor,
alleging violations of Appellant’s constitutional rights guaranteed by the First, Fourth, and
Fourteenth Amendments to the constitution, pursued under 42 U.S.C. §1983; and a failure to
adequately train, supervise, and discipline police officers of the City of Athens, Ohio. (J.A. 9).
Appellees and the City of Athens, Ohio filed motions for summary judgment. (J.A. 67, 312). The
City of Athens, Ohio was dismissed from the case on August 28, 2002 with prejudice. Appellant’s
case was dismissed as to Appellees on October 3, 2002. (J.A. 21). On October 30, 2002, Appellant
filed a notice of appeal with this court. (J.A. 65).
Appellant immigrated from Athens, Greece when he was a child and subsequently became
a United States citizen. After working as an engineer in Michigan and Ohio, Appellant became an
entrepreneur and owned commercial and residential properties as well as several businesses,
including an auto rental dealership, gas stations, convenience stores and a video rental business.
(J.A. 10). Appellant was a respected member of the local business community. One of Appellant’s
gas stations/convenience stores, specifically, Pro-Gas II (Citgo chain) in Nelsonville, Ohio became
unprofitable in mid-1998. (J.A. 11). Appellant instituted various measures in order to determine
why this enterprise was losing money. Appellant hired a law enforcement student to pose as an
employee while surveilling the other employees and installed additional surveillance equipment.
Id. Ultimately, several employees were discovered to either have been stealing inventory or

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money from Appellant’s Pro-Gas II location. Id. These employees were confronted by Appellant
individually and at different times when their thievery was discovered. Id. Appellant asserts that
he attempted to work out a restitution plan with each of these employees in an effort to regain tens
of thousands of dollars in revenue and inventory loss. (J.A. 13). Appellees argue that Appellant
used this opportunity to recover more money than the money or its inventory equivalent that was
stolen from him in an effort to achieve additional financial gain. Appellant counters this assertion
by stating it was his full intention to have law enforcement officials present when these employees
were scheduled to meet with him in order to make restitution. Appellant states that he notified the
Federal Bureau of Investigation (“FBI”) and requested their presence during these confrontations
since the FBI was involved in capturing persons who had robbed one of Appellant’s Athens stores
in the past. When the FBI was contacted, they informed Appellant that local authorities had proper
jurisdiction over this matter.
Appellant then contacted the Athens police requesting assistance because the location of the
meetings for negotiating restitution was the Appellant’s Athens store. Appellant alleges that the
Athens police also declined to help him and referred him to the Nelsonville police department since
the thefts had actually occurred in Appellant’s Nelsonville store. Appellant then contacted the
Nelsonville police, informing them that he wanted them to be present when these employees
confessed to stealing and to witness the restitution exchange. Appellant allegedly was told that the
Nelsonville police had no one to send to Athens and that he should handle the matter on his own.
Based upon Appellant’s efforts to have law enforcement involved when money exchanged hands,
it is his contention that he was not attempting to extort money from these student employees.
The genesis of the extortion and theft charges which were ultimately brought against
Appellant was a verbal complaint by a parent of one of the student employees, who lived in Indiana.

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(J.A. 345-46). This parent contacted an Alcohol, Tobacco, and Firearms (“ATF”) agent, who was
a friend of hers, about Appellant’s alleged threats against her child. Id. The Indiana ATF agent
contacted the FBI in Columbus, Ohio about the matter, and the FBI then referred the issue to
Appellee Brooks. (Id. & J.A. 99). Appellee Brooks proceeded to contact several of the employees
who were allegedly victims of Appellant’s extortion and obtained statements. (Id. & J.A. 406-452).
At the conclusion of Appellee Brooks’s investigation, he took the information he had to
Appellee Biddlestone, who was already aware of the situation. Upon Appellees’ belief that probable
cause existed to execute a search of Appellant’s Pro-Gas II business, a search warrant was issued
by Judge L. Alan Goldsberry of the Athens County Court of Common Pleas on March 19, 1999 and
executed on the same day. (J.A. 449-464). Appellant was arrested and several items were seized
from Appellant’s business premises such as checks, files, tapes, receipt books, surveillance tapes,
and bank records. (J.A. 451). Appellant was ultimately charged with fifteen counts of extortion and
theft and indicted on all of the charges. (J.A. 286). Nine of the charges were dismissed by the court
during trial; the jury found Appellant not guilty on five of the charges; and the remaining charge of
theft was also dismissed. Appellant prevailed in the criminal case against him and then sought a
civil remedy against Appellees and the City of Athens, Ohio.
All defendants in the district court filed dispositive motions which, as previously stated, were
granted. Appellant now seeks appellate relief from this court against Appellees Brooks and
Biddlestone only, claiming that the trial court erred in summarily dismissing his case when genuine
issues of material fact exist relative to the specific claims at issue: (1) arrest without probable cause;
(2) execution of a false and misleading search warrant; and (3) overbroad execution of a search
warrant.
II.

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We review de novo the district court’s grant of summary judgment. Waters v. City of
Morristown, 242 F.3d 353, 358 (6th Cir. 2001). Summary judgment is proper when “there is no
genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the court must view
the evidence and draw all reasonable inferences in favor of the nonmoving parties. Waters, 242 F.3d
at 358 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Additionally, the judge must not weigh the evidence but rather must “determine whether there is a
genuine issue for trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986))(internal quotation marks omitted). There is a genuine issue for trial if there is sufficient
“evidence on which the jury could reasonably find for the plaintiff.” Id. (quoting Anderson, 477
U.S. at 252)(internal quotation marks omitted).
III.
A. Probable Cause to Arrest
Appellant asserts that Appellees had no probable cause to search his premises and arrest him
on March 19, 1999. Appellant maintains that his Fourth Amendment rights were violated, thus
supporting a §1983 action. Appellee Biddlestone argues that there was probable cause for the search
and arrest to take place and, in any event, Appellee Biddlestone is absolutely immune from liability
relative to this alleged constitutional violation. Appellee Brooks concurs that probable cause existed
in order to support the law enforcement action taken. Appellee Brooks further argues that he is
entitled to qualified immunity in this matter and Appellant’s claims against him were properly
dismissed.
The Supreme Court has defined “probable cause” for an arrest as the “facts and
circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one

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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); see
also, Gerstein v. Pugh, 420 U.S. 103, 111 (1975). Courts therefore determine the existence of
probable cause by using an objective standard. The mind set of the “reasonable officer” and not
of the actual arresting officer is taken into account. Berg v. County of Allegheny, 219 F.3d 261, 272
(3d Cir. 2000). A police officer will be liable for civil damages for an arrest if “no reasonably
competent officer” would conclude that probable cause existed. Malley v. Briggs, 475 U.S. 335, 341
(1986).
Probable cause requires only the probability of criminal activity, not some type of “prima
facie” showing. Illinois v. Gates, 462 U.S. 213, 235 (1983). If the circumstances, viewed
objectively, support a finding of probable cause, the arresting officer’s actual motives are irrelevant.
See Evans v. Detlefsen, 857 F.2d 330, 334 (6th Cir. 1988); Donta v. Hooper, 774 F.2d 716, 721 (6th
Cir. 1985). A valid arrest based upon probable cause is not vitiated if the suspect is later found not
guilty. See Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). The question of whether there
was probable cause for an arrest is a mixed question of law and fact. Gardenhire v. Schubert, 205
F.3d 303, 312 (6th Cir. 2000). Generally, the existence of probable cause in a § 1983 action presents
a jury question, unless there is only one reasonable determination possible. Id. at 315 (quoting Pyles
v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995)). We have held that mixed questions of fact and law
are treated as questions of law. Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999)(en banc). The
question then becomes, viewing the facts in a light most favorable to Appellant in this case, whether
Appellees were justified in their belief that Appellant had probably committed or was committing
acts of extortion. Gardenhire, 205 F.3d at 315.
Appellant argues that the employees’ credibility was in question because the employees kept

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changing their stories about the amount of the theft and they themselves did not contact the
authorities. A mother of one of the employees contacted the ATF agent. Appellant further claims
he was the victim; a good-faith creditor seeking restitution from his former employees.
The district court held as a matter of law that Appellee Brooks had probable cause to arrest
Appellant, relying on Ahlers v. Schebil, 188 F.3d 365 (6th Cir. 1999). The district court found that
before Appellee Brooks concluded that there was probable cause to arrest Appellant, Appellee
Brooks interviewed and took statements of the employees and corroborated their stories by
interviewing some of the parents and taping conversations between the employees and Appellant.
(J.A. 57) Appellee Brooks also ran a records check on the employees and he carefully weighed the
evidence before arresting Appellant. (J.A. 57-58) Appellee Brooks then met with Appellee
Biddlestone, who advised him that probable cause had been established. (J.A. 59)
We agree with the district court’s conclusion that while the employees may have stolen from
Appellant, the arrest was based on the information that Appellant was attempting to extort more than
his actual losses from the employees. Appellant was arrested for violating Ohio’s extortion statute,
ORC § 2905.11. Appellant presented no evidence to support his allegation that Appellee Brooks
consciously disregarded the facts in his probable cause determination that Appellant had violated
the extortion statute. Once probable cause has been established, an officer is under no obligation
to continue the investigation to discover possible exculpatory evidence. Ahlers, 188 F.3d at 370.
A victim’s report is entitled to a presumption of reliability and veracity. Id. An officer is under no
obligation to give any credence to a suspect’s story. Criss v. City of Kent, 867 F.2d 259, 262-63 (6th
Cir. 1988) We find that the district court correctly concluded as a matter of law that Appellee
Brooks had probable cause to arrest Appellant on extortion. Summary judgment against Appellant
was proper because Appellant had presented no evidence that Appellee Brooks consciously

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disregarded the facts in his probable cause determination.
B. Collateral Estoppel
The district court ruled that Appellant was precluded from raising the issue of probable cause
to issue the search warrant because the matter had already been litigated in the related state court
criminal matter in his motion to suppress. (J.A. 24-28). Issue preclusion, also referred to as
collateral estoppel, is comprised of four elements: (1) The party against whom estoppel is sought
was a party or in privity with a party to the prior action; (2) There was a final judgment on the merits
in the previous case after a full and fair opportunity to litigate the issue; (3) The issue must have
been admitted or actually tried and decided and must be necessary to the final judgment; and (4) The
issue must have been identical to the issue involved in the prior suit. Brady v. Brady, No. 19006,
2002 WL 626963, *3 (Ohio App. 2 Dist. Apr. 19, 2002). “The purpose of collateral estoppel is to
preclude ‘the relitigation, in a second action, of an issue that has been actually and necessarily
litigated and determined in a prior action which was based on a different cause of action.’” New
Winchester Gardens, Ltd. v. Franklin County Bd. of Revision (1997), 80 Ohio St.3d 36, 41, 684
N.E.2d 312 (quoting Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 112, 49 O.O.2d 435,
437, 254 N.E.2d 10, 13)). Because Appellant filed a motion to suppress in the state criminal
proceedings, the district court held that Appellant had a full and fair opportunity to litigate the issue
of probable cause, which precluded Appellant from re-litigating the issue before the district court.
(J.A. 24-28).
Applying the principles set forth in Brady to the present case, we agree with the district court
and conclude that collateral estoppel is applicable in this case for several reasons. First, Appellant
argues that his motion to suppress filed in the state court, which was denied, was not a final
judgment because Appellant’s acquittal negated the need to file an interlocutory appeal. See e.g.,

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Dixon v. Richer, 922 F.2d 1456, 1459 (10th Cir. 1991) (an indispensable prerequisite to the
application of collateral estoppel, includes the opportunity to appeal an adverse ruling-an
opportunity denied to acquitted defendants); Fletcher v. Atex, Inc., 68 F.3d 1451, 1458 (2d Cir.
1995); Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989). However, in Coogan v. City of Wixom,
820 F.2d 170, 175 (6th Cir. 1987), we held that not having the opportunity to appeal a probable
cause determination is not indicative of not having a full and fair opportunity to litigate the issue.
Second, it is undisputed that Appellant’s motion to suppress did not result in an evidentiary
hearing because Judge Goldsberry determined that Appellant was unsuccessful in meeting the
threshold showing set forth in Franks v. Delaware, 438 U.S. 154, 171 (1978), which would have
required proof that Appellee Brooks knowingly or recklessly made false statements in the search
warrant affidavit. However, just because Appellant “did not meet the requirements under Franks to
receive an evidentiary hearing does not limit the application of collateral estoppel.” Searing v.
Hayes, 684 F.2d 694, 697 (10th Cir. 1982). In addition to this fact, although Appellant was not
extended the opportunity to conduct an evidentiary hearing, Appellant was able to place his
arguments on the record relative to the alleged basis for an order of suppression by the district court.
During the Appellant’s suppression hearing in state court and within the text of the opinion of the
state court denying Appellant’s suppression motion, it is evident that the state court was on notice
that the essence of Appellant’s argument in favor of an evidentiary hearing was Appellees’ alleged
false statements in the search warrant affidavit as well as allegations of other misrepresentations.
(J.A. 299-300, 571, 589).
When a plaintiff has sought to revisit the probable cause issue in a subsequent civil suit in
federal court, this circuit has found merit to the claim only where the plaintiff was unable to place
on the state court record allegations about false statements or misrepresentations by law enforcement

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officials, or some basis to demonstrate sufficient evidence to require an evidentiary hearing on the
issue of probable cause. Hinchman v. Moore, 312 F.3d 198, 202-04 (6th Cir. 2002); Darrah v. City
of Oak Park, 255 F.3d 301, 310-11 (6th Cir. 2001); Buttino v. City of Hamtramck, 2004 WL 74655,
*5 (6th Cir. 2004); Josey v. Salisbury, 1993 WL 476974, *2 (6th Cir. 1993). The case presently
before the court does not come within the narrow exception carved out by this circuit.
Accordingly, the district court did not err when it granted summary judgment in favor of
Appellee Brooks based upon the doctrine of collateral estoppel.
C. Qualified Immunity
Since we find no constitutional violation in this matter, the qualified immunity issue need
not be addressed.
D. Search
Appellant asserts that because he has multiple businesses at one address, Appellees seized
items outside the scope of the search warrant when records were confiscated relative to business
unrelated to The Pro Gas II enterprise. We disagree. There is no evidence in the record that
Appellant’s multiple businesses were clearly delineated as being in separate offices and/or identified
by different business names or suite numbers on the doors. Simply because Appellant keeps his
business records for multiple businesses in his private office in the building for which the search
warrant was executed, does not invalidate the search warrant. United States v. Stefonek, 179 F.3d
1030, 1032 (7th Cir. 1999); United States v. Ofshe, 817 F.2d 1508, 1514 (11th Cir. 1987).
The search warrant identified the building to be searched as a single-story building
containing the Pro-Gas/Citgo convenience store and an Athens Video Store. The businesses are
identified as being in the same building. Some of the items that were identified to be seized that
were at 544 Richland Avenue in Athens, Ohio, were properly taken pursuant to the warrant. The

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police were looking for any evidence regarding the commission of extortion and theft. The language
in the search warrant was not limited to seizing records from only the Pro-Gas II and video store
business. In any event, Appellant admitted that any records that were seized unrelated to the ex-
employees at issue in this matter were returned expeditiously.
IV.
For the foregoing reasons, we AFFIRM the decision of the district court to dismiss
Appellant’s claims.

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