Buxton Craig Heyerman v. COUNTY OF CALHOUN , CALHOUN COUNTY PROSECUTOR ’ SOFFICE , named as “Calhoun County…

*The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BUXTON CRAIG HEYERMAN ,
Plaintiff-Appellant,
v.
COUNTY OF CALHOUN , CALHOUN COUNTY
PROSECUTOR ’ S OFFICE , named as “Calhoun
County Prosecutor,” and SUSAN K.
M LADENOFF ,
Defendants-Appellees,
M ICHIGAN DEPARTMENT OF CORRECTIONS,
PATRICIA L. CARUSO , M ICHIGAN PAROLE
BOARD , and BARBARA S. SAMPSON ,
Defendants.
X---->
,-----------
N
No. 10-2322
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:09-cv-411—Robert J. Jonker, District Judge.
Argued: April 17, 2012
Decided and Filed: May 29, 2012
Before: GIBBONS and SUTTON, Circuit Judges; DUGGAN, District Judge*
_________________
COUNSEL
ARGUED: James A. Sauber, IDG PLLC, Battle Creek, Michigan, for Appellant. Jason
D. Kolkema, JOHNSON, ROSATI, LABARGE, ASELTYNE & FIELD, P.C., Lansing,
Michigan, for Appellees. ON BRIEF: James A. Sauber, IDG PLLC, Battle Creek,
Michigan, for Appellant. Jason D. Kolkema, Patrick A. Aseltyne, JOHNSON, ROSATI,
LABARGE, ASELTYNE & FIELD, P.C., Lansing, Michigan, for Appellees.
DUGGAN, D. J., delivered the opinion of the court in which GIBBONS and
SUTTON, JJ., joined. SUTTON, J. (pp. 10–12), also delivered a separate concurring
opinion.
1

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1Michigan Court Rule 7.210(I) (subsection J at the time of the Michigan Court of Appeals’
decision in Heyerman’s case) provides: “The trial court . . . shall promptly notify all parties of the return
of the record in order that they may take the appropriate action in the trial court . . . under the Court of
Appeals mandate.”
_________________
OPINION
_________________
DUGGAN, District Judge. Plaintiff-Appellant Buxton Craig Heyerman was
imprisoned for more than seventeen years as a pretrial detainee after a state appellate
court reversed his criminal conviction and remanded the matter to the trial court. He
filed a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants-Appellees,
alleging that this lengthy detention violated his Sixth Amendment speedy-trial rights.
Defendants-Appellees are not liable for the alleged constitutional violation under § 1983,
however. Therefore, we affirm the district court’s grant of summary judgment in their
favor.
I.
In January 1988, a jury in Calhoun County, Michigan, found Buxton Craig
Heyerman (hereafter “Heyerman”) guilty of one count of first-degree criminal sexual
conduct and the trial court sentenced him to a prison term of twenty to forty years. On
June 8, 1989, the Michigan Court of Appeals reversed Heyerman’s conviction and
remanded the matter to the trial court. Heyerman, through his appellate counsel, was
informed and received a copy of the appellate court’s decision.
On June 9, 1989, the state trial court entered an acknowledgment of the reversal
and remand in its Registry of Actions. On July 6, 1989, the Remittur of Record was
entered in the appellate court, ordering inter alia the clerk of the lower court to inform
the parties of the decision pursuant to Michigan Court Rule 7.210.1
According to the judge who presided over Heyerman’s criminal trial, the
procedure in place in his court in 1989, was to notify the parties and schedule a status
conference when a case was remanded from the court of appeals. For unknown reasons,

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2Although not relevant to the disposition of his § 1983 action– but included because many readers
likely wonder– neither Heyerman nor his criminal defense attorney brought the unresolved matter to the
attention of the trial court or prosecutor’s office. In hearings before the trial judge, Heyerman’s criminal
defense attorney testified that he advised Heyerman “to stay put and quiet like a mouse” until the statute
of limitations expired (which counsel incorrectly determined was ten years) because Heyerman likely
would be convicted in a second trial and receive a sentence substantially longer than ten years. There is
some evidence that Heyerman first consented to this strategy but then, at some point, disagreed and tried
to get his attorney to bring his unresolved case to the trial court’s attention. There is evidence that
Heyerman brought the reversal of his conviction and remand order to the attention of prison authorities,
as well. Heyerman successfully sued his defense counsel for legal malpractice.
however, this procedure was not followed in Heyerman’s case. Further, the trial court
judge only became aware of the reversal and remand in 2007.
Conrad Sindt, Calhoun County’s Prosecuting Attorney from 1981 through 1990
(a period covering Heyerman’s trial and conviction and the appellate court’s reversal and
remand), also did not become aware of the Michigan Court of Appeals’ decision until
2007. The procedure in the prosecutor’s office in 1989 was for the appellate clerk in the
office to receive the decision from the court of appeals and forward it to the assigned
assistant prosecuting attorney for further action and to await notification from the trial
court. The assistant county prosecutor who handled Heyerman’s criminal trial and
appeal left the prosecutor’s office within months of the Michigan Court of Appeals’
decision.
No action was taken in Heyerman’s criminal case after the record was returned
to the Calhoun County Circuit Court until early 2007, when the case was brought to the
attention of the State after Heyerman filed a pro se writ of habeas corpus (although in
the wrong court).2 The judge overseeing the criminal proceedings then appointed
counsel to represent Heyerman, who subsequently file a motion to dismiss on speedy-
trial grounds. On May 11, 2007, following a series of hearings, the trial court ruled that
Heyerman’s right to a speedy trial under the Sixth Amendment had been violated and
the only remedy was to dismiss the criminal charge with prejudice. The prosecutor did
not appeal the decision.
It is not evident from the record who served as Calhoun County’s Prosecuting
Attorney immediately after Sindt and from January 2001 through December 2008.
Defendant-Appellee Susan Mladenoff (“Mladenoff”) served in that capacity from

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January 1997 through December 2000, and was elected to another four years’ term
beginning January 2009. Mladenoff only became aware of Heyerman’s criminal case
in 2007, when she read a newspaper article concerning the hearings before the trial judge
and the dismissal of the case on speedy trial grounds.
On May 6, 2009, Heyerman, with the assistance of counsel, filed this civil rights
action against Calhoun County, the “Calhoun County Prosecutor’s Office,” Mladenoff
in her individual and official capacities, the Michigan Department of Corrections
(“MDOC”), the Director of MDOC, the Michigan Parole Board, and the Chairperson of
the Michigan Parole Board. Heyerman never served the MDOC or Parole Board
defendants and agreed to dismiss those defendants. The district court dismissed the
“Calhoun County Prosecutor’s Office,” finding that it is a non-existent entity. The
County and Mladenoff thereafter filed a motion for summary judgment, which the
district court granted. The court concluded that Mladenoff is entitled to absolute
prosecutorial immunity to the extent she is sued in her individual capacity and that
Heyerman failed to demonstrate a municipal policy or practice that was a moving force
behind the alleged constitutional violation to hold the County or Mladenoff in her
official capacity liable. Heyerman timely appealed the court’s decision and judgment.
II.
The district court’s grant of summary judgment is reviewed de novo. Provenzano
v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011). Summary judgment is
appropriate if the materials in the record “show[] that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party has the burden of proving the absence of a genuine
issue of material fact and its entitlement to summary judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All facts, including inferences, are
viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central inquiry is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether

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3To the extent this case raises the issue of whether damages can be awarded under § 1983 for a
Sixth Amendment speedy trial violation, we do not need to reach this issue to dispose of this appeal.
Therefore we do not reach it.
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).
III.
The district court granted summary judgment to Mladenoff in her individual
capacity, concluding that Mladenoff’s alleged failure to supervise and train her
employees relative to their response to remand orders constituted activities “intimately
associated with the judicial phase of the criminal process.” R.54 at 6-7 (quoting Van de
Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (quoting Imbler v. Pachtman, 424 U.S.
409, 430 (1976)). On appeal, Heyerman argues that Mladenoff’s supervision and
training responsibilities are administrative functions to which absolute prosecutorial
immunity does not apply. See Imbler, 424 U.S. at 431 n.33; see also Van de Kamp, 555
U.S. at 343. We find it unnecessary to make this determination.
To state a cognizable claim against an individual under § 1983, “a plaintiff must
set forth facts that, when construed favorably, establish (1) the deprivation of a right
secured by the Constitution or laws of the United States (2) caused by a person acting
under color of state law.”3 Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.
2006). Persons sued in their individual capacities under § 1983 can be held liable based
only on their own unconstitutional behavior. See Murphy v. Grenier, 406 F. App’x 972,
974 (6th Cir. 2011) (unpublished opinion) (“Personal involvement is necessary to
establish section 1983 liability”); see also Gibson v. Matthews, 926 F.2d 532, 535 (6th
Cir. 1991) (noting that personal liability “must be based on the actions of that defendant
in the situation that the defendant faced, and not based on any problems caused by the
errors of others, either defendants or non-defendants”).
There is no evidence that Mladenoff was directly responsible for the failure to
act in response to the Michigan Court of Appeals’ remand order. As indicated,
Mladenoff first became aware of Heyerman’s criminal case in 2007– at which time she

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was not serving as the County’s Prosecuting Attorney. Heyerman nevertheless
maintains that Mladenoff may be held personally liable based on her failure, as Calhoun
County Prosecuting Attorney, to oversee the assistant county prosecutors’ handling of
cases remanded from the court of appeals.
Section 1983 liability, however, cannot be premised solely on a theory of
respondeat superior, or the right to control employees. Hays v. Jefferson Cnty., 668 F.2d
869, 872 (6th Cir. 1982). Supervisory officials are not liable in their individual
capacities unless they “either encouraged the specific incident of misconduct or in some
other way directly participated in it. At a minimum, a plaintiff must show that the
official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Id. at 874. Heyerman’s attempt to
hold Mladenoff liable in her individual capacity for her alleged failure to adequately
supervise assistant county prosecutors or for her adherence to or continuation of a policy
that, in Heyerman’s words, “abdicated” her responsibility “to act on remand orders”,
“improperly conflates a § 1983 claim of individual supervisory liability with one of
municipal liability.” Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008); see also
Miller v. Calhoun Cnty., 408 F.3d 803, 817 n.3 (6th Cir. 2005) (indicating that where
there is an absence of evidence of personal involvement in the underlying misconduct,
failure-to-train claims against individual defendants are properly deemed to be brought
against them in their official capacities and are treated as claims against the county).
Municipal liability, however, also is not established in this case.
Municipal liability only attaches where a custom, policy, or practice attributable
to the municipality was the “moving force” behind the violation of the plaintiff’s
constitutional rights. Miller v. Sanilac Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010).
Heyerman asserts three theories to support municipal liability: (1) the prosecuting
attorneys serving office during his pretrial detention– individuals with final decision-
making authority– abdicated their responsibility to act on remand orders; (2) the County
failed to institute a necessary and effective policy to respond to remand orders and
instead left it for some unidentified person to put a case remanded by the appellate court

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back on track; and/or (3) the County provided no training to its prosecutors on how to
timely and adequately respond to a court of appeals’ remand order to safeguard against
constitutional deprivations.
Heyerman’s first argument fails because there is no evidence that any of the
County’s prosecuting attorneys who served office from the time of the Michigan Court
of Appeals’ remand order were personally aware of the order. “[M]unicipal liability
under § 1983 attaches where– and only where– a deliberate choice to follow a course
of action is made from among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in question.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 483-84 (1986) (emphasis added) (citing Oklahoma City
v. Tuttle, 471 U.S. 808, 823 (1985) (“ ‘policy’ generally implies a course of action
consciously chosen from among various alternatives.”)).
Heyerman’s second and third theories are premised on the County’s failure to
act: the failure to institute a policy other than a policy of “wait and see” in response to
remand orders (argument two), and the failure to train and supervise assistant
prosecuting attorneys to respond to remand orders (argument three). A municipality may
be liable under § 1983 for a failure to train its employees or to institute a policy to avoid
the alleged harm where the need to act “is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the [municipality]
can reasonably be said to have been deliberately indifferent to the need.” City of Canton
v. Harris, 489 U.S. 387, 390 (1989). The occasional negligent administration of an
otherwise sound policy is not sufficient to impose municipal liability. See id. at 390-91
(“That a particular officer may be unsatisfactorily trained will not alone suffice to fasten
liability on the city, for the officer’s shortcomings may have resulted from factors other
than a faulty training program.”).
Courts have identified two ways to demonstrate a municipality’s need to act. The
plaintiff can present evidence showing that the municipality possessed actual knowledge
indicating a deficiency with the existing policy or training (or lack thereof), such as
where there have been recurring constitutional violations. See, e.g., Oviatt v. Pearce,

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954 F.2d 1470, 1473, 1477-78 (9th Cir. 1992) (finding that the county sheriff “was
aware that ‘from time to time’ individuals were not arraigned [within the time prescribed
by state law] because of mistakes made by the court or the jail”). Otherwise, the plaintiff
must show that the need to act should have been “plainly obvious to the [municipality’s]
policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need.” Canton, 489
U.S. at 390 n.10. This arises “in a narrow range of circumstances” where “a violation
of federal rights may be a highly predictable consequence of [the municipality’s failure
to act].” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)
(emphasis added). For example, as the Canton Court provided, where city policymakers
know that their police officers will be required to arrest fleeing felons and have armed
the officers with firearms in part to accomplish this task, the need to train the officers in
the constitutional limitations on the use of deadly force is “‘so obvious,’ that failure to
do so could properly be characterized as ‘deliberate indifference’ to constitutional
rights.” 489 U.S. at 390 n.10.
The record contains no evidence of any case in Calhoun County, other than
Heyerman’s, where a defendant was not timely presented to the trial court after his or
her case was remanded by the court of appeals. Thus this is not a circumstance where
the need for action was “plainly obvious” to the municipality’s policymakers or where
what happened was a “highly predictable consequence” of the County’s existing policy
or the failure to train assistant prosecuting attorneys on the handling of remand orders.
IV.
Undoubtedly, the judicial system– to say nothing of the criminal defense system–
has not functioned as it should when a criminal defendant remains imprisoned for
seventeen years after his or her conviction has been reversed and no further action has
been taken. Section 1983 liability, however, does not necessarily attach to any entity
and/or individual as a result of this breakdown. It does not here. In short, Mladenoff
was not personally involved in any conduct that led to any violation of Heyerman’s
speedy-trial rights to establish her individual liability. Heyerman fails to demonstrate

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a defective policy or practice to hold Calhoun County or Mladenoff in her official
capacity liable.
Accordingly, we affirm the district court’s decision.

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__________________
CONCURRENCE
__________________
SUTTON, Circuit Judge, concurring. I concur in Judge Duggan’s opinion for the
Court.
I write separately to add that, whatever else went wrong during Buxton
Heyerman’s unduly long incarceration, it was not a violation of the Speedy Trial Clause
of the Sixth (and Fourteenth) Amendment. In view of Heyerman’s seventeen-year stay
in prison after the state courts reversed his conviction, it is clear that the Michigan
criminal-justice system did not operate in a “speedy” manner. A speedy-trial violation,
however, requires two things—state lethargy and a state trial. To the extent money
damages under § 1983 are available at all for a speedy-trial violation, see Quinn v.
Roach, 326 F. App’x 280, 290 (5th Cir. 2009), a claimant must show both elements. See
Doggett v. United States, 505 U.S. 647, 651–52 (1992) (“to trigger a speedy trial
analysis, an accused must allege that the interval between accusation and trial” has been
excessive); United States v. MacDonald, 456 U.S. 1, 6 (1982) (speedy trial right
“attaches only when a formal criminal charge is instituted and a criminal prosecution
begins”); Atkins v. Michigan, 644 F.2d 543, 547 (6th Cir. 1981) (rejecting speedy-trial
claim because the defendant “has not yet been tried”). Yet Heyerman established just
one of the two requirements. Once the State figured out what had happened, it
opted—wisely—not to prosecute Heyerman a second time.
It remains intriguing whether the facts of Heyerman’s case might give rise to a
§ 1983 action premised on a different theory of liability, say an unreasonable detention
under the Fourth Amendment or a violation of due process under the Fourteenth
Amendment. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Gerstein v. Pugh,
420 U.S. 103, 125–26 & nn.26–27 (1975). But it is not intriguing whether a decision to
release an individual before trial establishes a compensable violation of the Speedy Trial
Clause. The Sixth Amendment guarantees speedy trials, not speedy detentions.

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Nor, it bears adding, is the State the only one to blame for this remarkable saga.
A jury convicted Heyerman in 1988, and the Michigan Court of Appeals reversed his
conviction the following year. Oddly enough, his next eight years of unjustified
incarceration were by design. As Heyerman acknowledged in his deposition, his
attorney and he “developed a strategy of . . . sitting tight or staying put” in jail, without
requesting a trial, for the first ten years of his confinement, because “there was a statute
of limitations that [his attorney] thought would pass in 1997.” R.39-4 at 77–78. The one
thing Heyerman did not want after the state courts reversed his first-degree criminal-
sexual-conduct conviction was a speedy trial because he thought his “chances of
prevailing on a retrial were not real good,” id. at 78, and he was not eager for the courts
to impose another 20-to-40-year sentence. What he thus wanted, and what his silence
was designed to create, was an unspeedy trial, one that would take ten years to initiate
and one that would never happen because the limitations period had run. On this record,
whatever else is wrong with the State’s maintenance of its criminal-justice system or its
enabling of this litigation strategy, a speedy-trial problem is not part of it.
Even when 1997 rolled around, and the time had come to cash in the chips on this
strategy, Heyerman and his lawyer could not bring themselves to do it. Heyerman
“asked [his attorney] why we aren’t taking this back to court,” and his attorney “started
. . . hemming and hawing about the more time the better.” Id. at 79. Heyerman
eventually got fed up and stopped speaking with his attorney, who to his discredit
apparently abandoned his client. Even then, Heyerman did not demand release or ask
the courts for it.
Perhaps not surprisingly, this strategy, if one can call it that, did not work well
for Heyerman. But it did not pan out well for his attorney either: a discipline board
suspended him from the practice of law for 33 months and he eventually settled a
malpractice claim filed by Heyerman for $95,000.
After his attorney transitioned from a do-nothing-with-the-State strategy to a do-
nothing-with-the-client approach, neither Heyerman nor his family nor anyone else
acting on his behalf showed diligence in bringing the situation to light. His complaint

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says only that when appearing before Michigan parole officials during the fourteenth and
fifteenth years of his post-reversal confinement—seven to eight years after his litigation
strategy demanded action—he told them, “I don’t know how much I can say, I am
supposed to have a new trial.” R.1 ¶¶ 27–28. While better than saying nothing, that is
not a complaint that he was being detained without authorization. Not until Heyerman
filed his petition in state court for a writ of habeas corpus did the State realize what had
happened.
It is not often that an inmate seeks refuge from the prosecutorial arm of the State
by laying low for seventeen years in prison in order to avoid the risk of a new trial that,
if all goes badly, will lead to: incarceration. And it is not often that a State abets this
strategy by failing to realize that it is housing an individual whose conviction has been
reversed. One suspects that Heyerman and his attorney will not try this again, and one
hopes that Michigan will not let this happen again. Either way, what has already
happened did not violate the speedy-trial guarantee of the Sixth Amendment.

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