Lisa Garner v. Robert Grant

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0336n.06
Filed: May 15, 2009
No. 08-1418
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LISA GARNER,
Plaintiff-Appellant,
v.
ROBERT GRANT,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
OPINION
Before: SILER, GILMAN, and KETHLEDGE, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. This case arises out of the accidental death of
11-month-old Karlie Garner, who, when left briefly unattended, crawled out of her house through
a sliding-glass door left open by her mother and drowned in the backyard swimming pool. Her
mother, Lisa Garner, was subsequently prosecuted for involuntary manslaughter and second-degree
child abuse. She was acquitted by a jury.
Garner alleges that the investigating officer, Detective Lieutenant Robert Grant, deliberately
fabricated two pieces of evidence that led to the issuance of an arrest warrant and the prosecution
of charges against her. She brought suit against Detective Grant under 42 U.S.C. § 1983, alleging
the violation of her constitutional rights under the Fourth and Fourteenth Amendments. The district

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court granted summary judgment in favor of Detective Grant. For the reasons set forth below, we
AFFIRM the judgment of the district court.
I. BACKGROUND
The factual background and procedural history of the case are well laid out in the district
court’s opinion. We will briefly recount only the key facts below.
Lisa Garner was the mother of Karlie Garner (Karlie) and is the wife of Craig Garner (Craig).
The Garner family lives in a house with an in-ground pool in the backyard. On the day of the
accident, Karlie was playing on the floor of the den. The sliding-glass door that leads from the den
into the backyard was left partially open, as was Garner’s habit, in order for the family’s cat to come
and go. After Garner “zoned out” for about ten minutes, she realized that she did not know where
Karlie was. She began looking for Karlie, first in the house and then in the backyard. After ten
minutes of searching, she found Karlie floating face down in the pool. Attempts by the neighbors
and the paramedics to revive Karlie were unsuccessful, and she was pronounced dead on arrival at
the hospital.
Detective Grant interviewed Garner at the hospital. Garner gave an account of Karlie’s
accident similar to what is summarized above. According to Garner, she estimated that she left the
sliding door open around three or four inches, but Detective Grant recalled her estimate to be about
six inches. Detective Grant also interviewed Craig in the hospital’s trauma room. Craig told
Detective Grant that he (Craig) had previously admonished Lisa not to leave the sliding-glass door
open. According to Detective Grant’s contemporaneous notes and his subsequent testimony, Craig

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also stated that “I told her all the time not to leave that door open—everyday she leaves the door
open like that. I warned her about it—that something like this could happen.” According to Craig
and Craig’s father, who was in the room during the interview, Craig did tell Detective Grant the first
parts of the statement, but did not say that he had “warned” his wife that “something like this could
happen.”
The contested phrase was included in Detective Grant’s report, which was forwarded to the
Wayne County Prosecutor’s Office. After reviewing the report, Assistant Prosecutor Daniel Less
recommended that a warrant be issued against Garner for the criminal charges of (1) involuntary
manslaughter, and (2) second-degree child abuse. Less later stated in an affidavit that he would have
been “highly unlikely” to have recommended a warrant had Craig’s statement not included the
contested phrase.
After a preliminary hearing, during which Craig testified and disputed his “warning”
statement, the state court concluded that the prosecution had presented sufficient evidence to
establish probable cause for both charges. Garner was then bound over for trial, which began in
April 2007. After her acquittal, Garner brought suit against Detective Grant based on allegations of
wrongful arrest, malicious prosecution, and the fabrication of evidence. The district court granted
summary judgment in favor of Detective Grant. This appeal followed.
II. ANALYSIS
We review de novo a district court’s grant of summary judgment. Allen v. Highlands Hosp.
Corp., 545 F.3d 387, 393 (6th Cir. 2008). Summary judgment is proper where no genuine issue of

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material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The central issue 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
“[A plaintiff] must prove a lack of probable cause in order for her to prevail on her Fourth
Amendment [wrongful arrest] and state law [malicious prosecution] claims.” Hinchman v. Moore,
312 F.3d 198, 202 (6th Cir. 2002). The existence of probable cause, therefore, negates an essential
element of a § 1983 suit alleging “deprivation of constitutional rights under color of law.”
Sutkiewicz v. Monroe County Sheriff, 110 F.3d 352, 357 (6th Cir. 1997) (citation omitted).
“[P]robable cause to justify an arrest means facts and circumstances . . . that are sufficient to warrant
a prudent person, or one 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) (internal quotation marks omitted).
After analyzing the evidence, the district court concluded that, “even absent the contested
portion of the . . . statement, probable cause existed as a matter of law to conclude that Plaintiff may
have been culpable in the death of the child” under the theories with which she was charged. We
agree. “In general, the existence of probable cause in a § 1983 action presents a jury question, unless
there is only one reasonable determination possible.” Parsons v. City of Pontiac, 533 F.3d 492, 501
(6th Cir. 2008) (citation and internal quotation marks omitted). Here, the key question boils down

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to whether Garner was reckless or grossly negligent under the circumstances. See Mich. Comp.
Laws §750.136b(3)(a) (defining “child abuse in the second degree” as a “reckless act” that “causes
serious physical harm to a child.”); Mich. Comp. Laws § 750.321 (setting forth the penalty for
manslaughter without defining its elements). Although manslaughter is not defined by statute, the
Michigan Supreme Court has explained in People v. Herron, 628 N.W.2d 528, 535 (Mich. 2001),
that manslaughter is
“the killing of another without malice and unintentionally, . . . in
negligently doing some act lawful in itself, or by the negligent
omission to perform a legal duty.” The kind of negligence required for
manslaughter is something more than ordinary or simple negligence,
however, and is often described as “criminal negligence” or “gross
negligence.”
Id. at 535 (citations omitted).
The undisputed facts are these: Garner was in charge of an eleven-month-old baby; she knew
that the child was mobile and crawling; she “zoned out” for a period of time; and she intentionally
left open the sliding-glass door leading directly to an in-ground swimming pool. Under these facts,
a prudent person, or a person of ordinary caution, could reasonably believe that Garner was either
reckless or grossly negligent. Moreover, the undisputed facts leave “only one reasonable
determination possible,” see Parsons, 533 F.3d at 501, i.e., that probable cause existed for Garner’s
prosecution. Garner’s wrongful arrest and malicious prosecution claims are therefore without merit.
This leaves Garner’s Fourteenth Amendment due process claim. Garner alleges that
Detective Grant deprived her of her due process rights by fabricating evidence against her. She relies
on Rochin v. California, 342 U.S. 165, 172-74 (1952), and Chavez v. Martinez, 538 U.S. 760, 774

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(2003), to assert that Detective Grant’s conduct in this case was “so brutal and so offensive to human
dignity that [it] ‘shock[s] the conscience ,’” thereby violating the Due Process Clause. See Chavez,
538 U.S. at 774. This court has held that “a person’s constitutional rights are violated when evidence
is knowingly fabricated and a reasonable likelihood exists that the false evidence would have
affected the decision of the jury.” Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir. 2006).
After reviewing the evidence, the district court concluded that the police conduct alleged by
Garner, even if true, did not “shock the conscience.” Moreover, because the evidence allegedly
fabricated by Detective Grant differed so slightly from Garner’s own version, there is no “reasonable
likelihood that the false evidence could have affected the judgment of the jury.” See Gregory, 444
F.3d at 737. This analysis seems sound to us. Indeed, the best evidence that Craig’s disputed
statement did not affect the judgment of the jury is Garner’s acquittal at her criminal trial.
In her brief on appeal, Garner argues that the question of whether Detective Grant’s alleged
conduct “shocks the conscience,” and whether it was likely to have affected the jury at her criminal
trial, should have been reserved for the factfinder in her § 1983 action. Summary judgment is
proper, however, when the evidence is “so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 252. Here, the only alleged fabrication of evidence by Detective Grant related
to (1) the contested “warning” statement made by Craig, and (2) the two-inch discrepancy in how
wide the sliding door was left open. We agree with the district court that these differences are so
slight in light of the overall proof as to neither “shock the conscience” nor to have likely affected the
judgment of the jury at Garner’s criminal trial.

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III. CONCLUSION
For all of the reasons set forth above, and in light of the well-reasoned and thorough opinion
of Judge Robert H. Cleland, we AFFIRM the judgment of the district court.

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