JOHNSON v. MOSELEY Cite as 790 F.3d 649 (6th Cir. 2015)

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1 JOHNSON v. MOSELEY Cite as 790 F.3d 649 (6th Cir. 2015) 649 cretionary-function exception if the conduct is not a deliberate or necessary result of a discretionary general policy ; in other words, government conduct does not necessarily amount to an exercise of a discretionary function merely because carrying out the general policy provided the opportunity for the negligent act. Bultema v. United States, 359 F.3d 379, (6th Cir.2004) (holding that the prison staff s alleged failure to carry out the prison s bunk-pass-notification policy was not protected by the discretionary-function exception because, even if the policy allowed for discretion, the staff s alleged negligence was not a necessary concomitant of the prison s notification policy ). Even clearly discretionary conduct is thus not necessarily protected by the discretionary-function exception. Assume, for example, that a Jacobs employee negligently injured a third party while driving toward the KIF plant with a truckload full of safety equipment. Or that the employee, while removing coal ash from the spill site, negligently caused that coal ash to fall from the truck. Jacobs s counsel conceded at oral argument that in neither scenario would Jacobs be exempt from tort liability, despite the decidedly discretionary conduct involved. The distinction between these two examples and, say, deciding what PPE on-site workers should wear, stems from the second part of the test for the discretionaryfunction exception, in that the exception was arguably designed to protect decisions regarding the health and safety of those working on post-spill cleanup at the KIF plant. Such [d]ecisions concerning the proper response to hazards are protected from tort liability by the discretionary function exception. See Rosebush, 119 F.3d at (holding that the National Forest Service s decisions to have open fire pits, [regarding] the design of the pits, whether to enclose them within railings, and whether to warn of their dangers fall within the discretionary-function exception, which precluded claims for related personal injuries). On the other hand, Congress expressly wanted to exclude ordinary common-law torts from falling under the exception. Dalehite, 346 U.S. at 28, 73 S.Ct. 956 (discussing 2680(a) s legislative history and Congress s express desire to waive immunity for tort liability such as negligence in the operation of vehicles ). In sum, we leave it to the district court on remand to decide in the first instance whether the Plaintiffs have failed to state a claim under Rule 12(b)(6). The court specifically should consider whether, based on the pleadings, (1) Jacobs is eligible for government-contractor immunity under Yearsley, and (2) Jacobs s conduct would fall under the corollary of the discretionary-function exception to the FTCA. III. CONCLUSION For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion., Andre JOHNSON, Plaintiff Appellee, v. Jeremy MOSELEY and Laura Thomas, Defendants Appellants. No United States Court of Appeals, Sixth Circuit. June 2, Background: Arrestee brought action against arresting police officers and oth-

2 FEDERAL REPORTER, 3d SERIES ers, after he was acquitted on domestic violence charges, alleging federal civil rights violations based on false arrest and malicious prosecution, and state-law claims. The United States District Court for the Middle District of Tennessee, Kevin H. Sharp, Chief Judge, 2014 WL , dismissed action in part, but denied officers motion to dismiss the federal and state-law malicious prosecution claims on qualified immunity grounds. Officers filed interlocutory appeal. Holding: The Court of Appeals, McKeague, Circuit Judge, held that officers were entitled to qualified immunity from liability in the Fourth Amendment malicious prosecution claim. Reversed in part, and remanded. 1. Federal Courts O3625(2) A district court s rejection of a defendant s qualified immunity defense at the pleading stage, posing a question of law, is reviewed de novo. 2. Federal Civil Procedure O1835 In deciding a motion to dismiss for failure to state a claim, a legal conclusion couched as a factual allegation need not be accepted as true. Fed.Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A. 3. Federal Civil Procedure O1772 To survive a motion to dismiss for failure to state a claim, the complaint must state a claim that is plausible on its face; that is, the court must be able to draw a reasonable inference that the defendant is liable for the misconduct alleged. Fed. Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. 4. Civil Rights O1376(1) In a civil rights action, qualified immunity, if it applies, is a defense not just against liability, but against suit itself. 5. Civil Rights O1376(2) Qualified immunity ordinarily applies unless the contours of the asserted right were sufficiently clear that every reasonable official would have understood that what he was doing violated that right. 6. Civil Rights O1376(2) Qualified immunity gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. 7. Officers and Public Employees O119 Qualified immunity applies irrespective of whether the official s error was a mistake of law or a mistake of fact, or a mistake based on mixed questions of law and fact. 8. Officers and Public Employees O119 Once the defendant raises the qualified immunity defense, plaintiff bears the burden of showing that the defendant is not entitled to qualified immunity. 9. Civil Rights O1398 At the pleading stage, the plaintiff s burden to negate a qualified immunity defense is carried by alleging facts plausibly making out a claim that the defendant s conduct violated a constitutional right that was clearly established law at the time, such that a reasonable official would have known that his conduct violated that right. 10. Federal Civil Procedure O1828 Unless the plaintiff s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. 11. Civil Rights O1398 To survive a motion to dismiss for failure to state a claim, in a civil rights action, when the defendant asserts a qualified immunity defense, the plaintiff s allegations must demonstrate that each defendant, through his or her own individual actions, personally violated plaintiff s rights under clearly established law.

3 JOHNSON v. MOSELEY Cite as 790 F.3d 649 (6th Cir. 2015) Civil Rights O1088(5) To state a valid federal civil rights claim for malicious prosecution in violation of the Fourth Amendment, a plaintiff must allege facts meeting four elements: (1) a criminal prosecution was initiated against the plaintiff and the defendant made, influenced, or participated in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff s favor. U.S.C.A. Const.Amend Civil Rights O1358, 1375 Two police officers were entitled to qualified immunity from liability for their alleged conduct in obtaining a warrant for suspect s arrest on domestic violence charges and, thereafter, not urging prosecutor to discontinue the prosecution, in Fourth Amendment malicious prosecution claim brought by suspect who was later acquitted; even if complainant s medical records contained information that was inconsistent with the details of her domestic violence accusations, the complainant persisted with her accusations to the extent of testifying under oath at trial, neither officer was alleged to have actually known of grounds to question probable cause, to have testified falsely or recklessly, or to have pressed for prosecution in any nonneutral or blameworthy way, and there were no allegations that the officers were personally involved in the post-arrest investigation or prosecution in any false or misleading way. U.S.C.A. Const.Amend Civil Rights O1376(2) To avoid the qualified immunity defense, plaintiff is required to plead facts making out a violation of a constitutional right clearly established in a particularized sense; that is, the right said to have been violated must be defined in light of the specific context of the case, not as a broad general proposition. 15. Civil Rights O1376(6) A police officer violates a suspect s clearly established right to freedom from malicious prosecution under the Fourth Amendment only when his deliberate or reckless falsehoods result in arrest and prosecution without probable cause. U.S.C.A. Const.Amend Arrest O63.4(2) Probable cause to arrest exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. U.S.C.A. Const.Amend. 4. ON BRIEF: Keli J. Oliver, Derrick C. Smith, Department of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, Tennessee, for Appellants. Allen Woods, The Law Offices of Woods and Woods, Nashville, Tennessee, for Appellee. Before: DAUGHTREY, McKEAGUE and STRANCH, Circuit Judges. OPINION McKEAGUE, Circuit Judge. This is an appeal from an interlocutory ruling denying two police officers motion to dismiss plaintiff s civil rights claim for malicious prosecution. Defendant officers asserted that the claim is barred by qualified immunity because plaintiff s complaint does not include fact allegations of specific conduct plausibly making out a violation of clearly established federal law. Because we find that the district court s denial of relief was based on an overly charitable reading of plaintiff s complaint, we reverse.

4 FEDERAL REPORTER, 3d SERIES I Plaintiff Andre Johnson is a former officer in the Metropolitan Nashville Police Department. In October 2012, he was twice arrested based on domestic violence complaints by his now-estranged wife, Terri L. Smith Johnson. The second arrest was made, pursuant to warrant, by fellow Metropolitan Nashville Police Officers Jeremy Moseley and Laura Thomas, defendants-appellants in this case. In March 2013, Johnson stood trial on the domestic violence charges and was acquitted by the jury. Johnson subsequently filed this action against his estranged wife, Officers Moseley and Thomas, and the Metropolitan Government of Nashville and Davidson County. The complaint purports to set forth claims against all four defendants, collectively, for federal civil rights violations based on false arrest and malicious prosecution, as well as state law claims for malicious prosecution and intentional infliction of emotional distress. Defendant Smith Johnson has not been served and no appearance has been filed on her behalf. The other defendants moved for dismissal on the pleadings. Fed.R.Civ.P. 12(b)(6). The district court granted the motions to dismiss in part, but denied the officers motion as to plaintiff s federal and state law claims for malicious prosecution. On appeal, the officers challenge exclusively the denial of their motion to dismiss the federal claim for malicious prosecution. The federal claim for malicious prosecution against the officers is based on allegations that Smith Johnson s medical records contained information inconsistent with details in her domestic violence accusations. The complaint also cites police department policies that, if heeded by officers conducting a proper investigation, would have disclosed reasons to question the veracity of Smith Johnson s accusations and question whether there was probable cause to prosecute Johnson on the domestic violence charges. By nonetheless pressing prosecutors to pursue the charges, Officers Moseley and Thomas allegedly participated in malicious prosecution, in violation of Johnson s Fourth Amendment rights. The district court held the allegations sufficient to withstand the officers motion to dismiss based, in part, on qualified immunity. The district court s ruling, though interlocutory, is subject to immediate review under the collateral order doctrine. Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir.2009). II [1 3] The district court s rejection of the defendant officers qualified immunity defense at the pleading stage, posing a question of law, is reviewed de novo. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir.2011). Tested under Rule 12(b)(6), the complaint is viewed in the light most favorable to plaintiff, fact allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of plaintiff. Id. However, a legal conclusion couched as a factual allegation need not be accepted as true. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiff s obligation to provide the grounds for the claimed entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555, 127 S.Ct The factual allegations must raise a right to relief above the speculative level. Id. The complaint must state a claim that is plausible on its face. That is, the court must be able to draw a reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This plausibility standard is not akin to a probabili-

5 JOHNSON v. MOSELEY Cite as 790 F.3d 649 (6th Cir. 2015) 653 ty requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). [4] Moreover, plaintiff s civil rights claim against the individual officers in their individual capacities implicates qualified immunity. Qualified immunity, if it applies, is a defense not just against liability, but against suit itself. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Hence, insubstantial claims against government officials should be resolved as early in the litigation as possible, preferably prior to broad discovery. Id. [5 7] Qualified immunity ordinarily applies unless the contours of the asserted right were sufficiently clear that every reasonable official would have understood that what he was doing violated that right. Ashcroft v. al Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). Qualified immunity gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity applies irrespective of whether the official s error was a mistake of law or a mistake of fact, or a mistake based on mixed questions of law and fact. Pearson, 555 U.S. at 231, 129 S.Ct [8 11] Since the defendant officers have raised the qualified immunity defense, plaintiff bears the burden of showing that defendants are not entitled to qualified immunity. Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir.2012). At the pleading stage, this burden is carried by alleging facts plausibly making out a claim that the defendant s conduct violated a constitutional right that was clearly established law at the time, such that a reasonable officer would have known that his conduct violated that right. Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.2015). Unless the plaintiff s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (observing that bare allegations TTT should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. )). Plaintiff is thus obliged to plead facts that, viewed in the light most favorable to him, make out a violation of a constitutional right so clearly established in a particularized sense that a reasonable officer confronted with the same situation would have known that his conduct violated that right. al Kidd, 131 S.Ct. at Moreover, the allegations must demonstrate that each defendant officer, through his or her own individual actions, personally violated plaintiff s rights under clearly established law. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937; Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir.2014). III Considering the district court s opinion in light of these standards, the errors in its analysis are apparent. While the court acknowledged the governing standards and fairly applied them in dismissing plaintiff s false arrest claim, it did not do so in relation to the malicious prosecution claim.

6 FEDERAL REPORTER, 3d SERIES [12] To state a valid federal civil rights claim for malicious prosecution in violation of the Fourth Amendment, a plaintiff must allege facts meeting four elements: (1) a criminal prosecution was initiated against the plaintiff and the defendant made, influenced, or participated in the decision to prosecute; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff s favor. Robertson, 753 F.3d at 616. There is no dispute as to several of these elements. Plaintiff Johnson was undisputedly arrested and prosecuted and acquitted in relation to the domestic violence complaints made by his wife. Also unchallenged is the district court s ruling that the false arrest claims against the defendant officers could not be maintained because they were entitled to rely on the arrest-warrant-issuing judicial officer s determination that there was probable cause to arrest. This ruling having not been challenged on appeal, and plaintiff having not alleged that defendant officers engaged in any misconduct in effecting his arrest, we accept that there was probable cause to arrest and initiate prosecution. We also assume that after his arrest plaintiff was released on bond pending trial and that the conditions of his release represent a sufficient deprivation of his liberty to satisfy the third element. See Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir.2002). [13] What remains in question is whether plaintiff has alleged facts giving rise to a reasonable inference that either of the defendant officers influenced or participated in the prosecutor s decision to continue the prosecution after he or she had knowledge of facts that would have led any reasonable officer to conclude that probable cause had ceased to exist and that continuing the prosecution would be in violation of plaintiff s clearly established constitutional rights. [14] The district court answered this question in the affirmative based on three flawed premises. First, the court defined the relevant constitutional right only in a generalized sense, holding that the right to be free from malicious prosecution was clearly established well before There can be no doubt that the Sixth Circuit recognizes a constitutionally cognizable claim of malicious prosecution under the Fourth Amendment. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir.2010) (quoting Barnes v. Wright, 449 F.3d 709, (6th Cir.2006)). Yet, that is not enough. Brosseau v. Haugen, 543 U.S. 194, , 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). To avoid the qualified immunity defense, plaintiff was required to plead facts making out a violation of a constitutional right clearly established in a particularized sense. That is, the right said to have been violated must be defined in light of the specific context of the case, not as a broad general proposition. Id. at 198, 125 S.Ct. 596 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Although neither plaintiff nor the district court has defined the right to freedom from malicious prosecution in such a particularized sense, both have relied on our analysis in Sykes v. Anderson. Indeed, Sykes is instructive. In Sykes, we recognized that a showing of malice is not necessarily essential to a malicious prosecution claim under the Fourth Amendment. Sykes, 625 F.3d at But we also observed that the requisite participation in the decision to prosecute after probable cause has ceased to exist must amount to aiding the decision in more than a passive or neutral way. Id. at 309

7 JOHNSON v. MOSELEY Cite as 790 F.3d 649 (6th Cir. 2015) 655 n. 5. And there must be some element of blameworthiness or culpability in the participation albeit less than malice. That is, truthful participation in the prosecution decision is not actionable. Id. at 314. The requisite blameworthiness was made out in Sykes by evidence that both defendant officers testified for the prosecution and each made false statements, made flagrant misrepresentations, or failed to disclose key items of evidence. Id. at , , [15] We further clarified the point in Robertson, 753 F.3d at 617, holding that even false testimony is not actionable as malicious prosecution unless deliberate i.e., given with knowledge of, or reckless disregard for, its falsity. Allegations of negligence or innocent mistake are insufficient. Id. at 617 n. 7 (quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Even more recently, the rule was succinctly stated in Newman v. Township of Hamburg, 773 F.3d 769 (6th Cir.2014). A police officer violates a suspect s clearly established right to freedom from malicious prosecution under the Fourth Amendment only when his deliberate or reckless falsehoods result in arrest and prosecution without probable cause. Id. at 772. Again, we see that a defendant s participation must be marked by some kind of blameworthiness, something beyond mere negligence or innocent mistake, to satisfy the elements of a malicious prosecution claim under the Fourth Amendment. If plaintiff s allegations are evaluated in light of this clearly established law, they clearly fail to pass muster. Plaintiff has not alleged that Moseley or Thomas participated in the investigation after his arrest. He has not alleged that Moseley or Thomas actually knew of grounds to question probable cause after the arrest. He has not alleged that Moseley or Thomas testified for the prosecution at any stage, much less that either of them testified falsely or recklessly. He has not alleged that Moseley or Thomas pressed for prosecution in any non-neutral or blameworthy way. The district court nonetheless found plaintiff s allegations sufficient partly because it erroneously viewed the clearly established law only in a generalized sense. [16] Second, the district court deemed allegations of inconsistencies in Smith Johnson s domestic assault accusations sufficient to justify a reasonable inference that probable cause to continue the prosecution had ceased to exist when the defendant officers allegedly pressed for prosecution. The alleged inconsistencies, viewed in the light most favorable to plaintiff, give cause to question the accuracy of Smith Johnson s complaints and even question her credibility. Yet, inasmuch as she persisted in her accusations that Johnson twice assaulted her to the extent of testifying under oath in trial, the alleged inconsistencies cannot reasonably be deemed to compel the conclusion that probable cause had ceased to exist. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Id. (quoting Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) (emphasis added)). The fact that the jury did not consider Smith Johnson s testimony sufficiently persuasive to find Johnson guilty of domestic assault beyond a reasonable doubt does not establish that probable cause was lacking when the trial began. See id. at 773 ( Because there is no requirement that the defendant to a malicious prosecution charge must have evidence that will ensure a conviction, not every failed criminal prosecution will sustain a subsequent malicious-prosecution suit. (quoting Harris v. United States, 422 F.3d 322, 327 (6th Cir.2005))). Further, plaintiff has not alleged that either Moseley or Thomas was personally involved in the post-arrest investigation or

8 FEDERAL REPORTER, 3d SERIES that either of them actually knew of reasons to doubt or question Smith Johnson s accusations. Rather, the complaint alleges essentially that defendants, collectively, pursued the prosecution even after the officers should have known, if a proper investigation had been conducted, reasons to question the accuracy or veracity of Smith Johnson s accusations. This should have known allegation, implying that Moseley and/or Thomas failed to conduct a proper investigation, amounts to no more than a charge of negligence or innocent mistake, not the sort of deliberate or reckless falsehood or otherwise blameworthy conduct required to make out a valid malicious prosecution claim. See Newman, 773 F.3d at 772 (noting that a showing of negligence or lack of attention to detail does not amount to malicious prosecution). 1 The complaint does not even allege that Smith Johnson s accusations were false, much less that Moseley or Thomas participated in the prosecution in any false or misleading way. Similarly insufficient is plaintiff s allegation that defendants instigated or participated in or pressed the prosecution. Again, absent allegation of blameworthy conduct, such neutral participation is insufficient to sustain a facially valid malicious prosecution claim. Third, although the district court noted that plaintiff s allegations lacked details, it accepted them as sufficient to meet the notice pleading requirements of Rule 8(a) and warrant further discovery proceedings. Fed.R.Civ.P. 8(a). Despite the insufficiency of plaintiff s allegations, the court withheld dismissal based on the possibility that discovery might disclose specific facts substantiating the claim. This ignores the fact that plaintiff, having sued defendant officers for violation of his civil 1. Moreover, even if the complaint were construed as alleging that the defendant officers knew of the inconsistencies, it would still fall rights, to overcome their assertion of qualified immunity, was obliged to allege facts describing how each defendant s conduct violated a federally protected right under clearly established law. Iqbal, 556 U.S. at , 129 S.Ct. 1937; Rondigo, 641 F.3d at 681. Because, as explained above, plaintiff s complaint does not set forth facts meeting this requirement, the claim is subject to dismissal. To be clear, we are not enforcing a heightened pleading requirement that would run afoul of Crawford El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); see Goad v. Mitchell, 297 F.3d 497, (6th Cir.2002). Rather, consistent with Crawford El s admonition that firm application of the Federal Rules of Civil Procedure is fully warranted where qualified immunity is asserted, we enforce the non-controversial requirement that plaintiff put forward specific, nonconclusory factual allegations establishing a cognizable injury in order to withstand a prediscovery motion to dismiss. Id. at (quoting Crawford El, 523 U.S. at , 118 S.Ct. 1584). The district court s ruling that plaintiff is entitled to discovery notwithstanding his conclusory allegations flies in the face of qualified immunity s purpose of resolving insubstantial claims as early as possible so as to avoid unnecessarily subjecting government officials to the disruptive burdens of litigation. See Mitchell, 472 U.S. at , 105 S.Ct. 2806; Goad, 297 F.3d at The court s ruling, allowing plaintiff to conduct discovery that may uncover substantiating facts, also undercuts counsel s Rule 11 obligation to conduct a reasonable investigation and uncover evidentiary support for fact allegations before filing the complaint. Fed.R.Civ.P. 11(b)(3). Had counsel undertaken such an investigation short. As indicated, the alleged inconsistencies weaken the probable cause showing; they do not necessarily defeat it.

9 BRANDYWINE EXPLOSIVES v. DIRECTOR, WORKERS COMP. Cite as 790 F.3d 657 (6th Cir. 2015) 657 and uncovered facts facially substantiating the malicious prosecution claims facts inadvertently omitted from the original complaint counsel would naturally have moved the district court for leave to amend the complaint so as to augment the allegations. That counsel made no such motion is telling. And no less telling is it that plaintiff s appellate briefing is also devoid even of argument attempting to put flesh on his bare bones allegations. He maintains simply that his allegations, conclusory though they be, are sufficient. We are not persuaded. IV Accordingly, the district court s denial of the defendant officers motion to dismiss plaintiff s federal claim for malicious prosecution is REVERSED. The case is RE- MANDED for entry of an order dismissing this claim against defendants Moseley and Thomas, and for further proceedings, as appropriate, on plaintiff s state law claim for malicious prosecution against them, as well as on plaintiff s outstanding claims against defendant Smith Johnson., BRANDYWINE EXPLOSIVES & SUPPLY; Kentucky Employers Mutual Insurance, Petitioners, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; Richard Dean Kennard, Respondents. No United States Court of Appeals, Sixth Circuit. Argued: March 6, Decided and Filed: June 15, Background: Employee filed claim for benefits under Black Lung Benefits Act. Administrative Law Judge (ALJ) granted benefits. Employer, along with its workers compensation insurer, petitioned for judicial review. Holdings: The Court of Appeals, Jane B. Stranch, Circuit Judge, held that: (1) challenge to validity of revised regulation on BLBA 15 year rebuttable presumption of totally disability due to pneumoconiosis would not have been futile; (2) substantial evidence supported determination by ALJ that employee s working conditions were substantially similar to those in underground mine; (3) substantial evidence supported finding by ALJ that employer did not rebut presumption of legal pneumoconiosis; (4) employer could prove that employee s disability did not arise out of coal mine employment by showing either that miner s pneumoconiosis did not arise out of his coal mine employment or that his pneumoconiosis did not cause his disability; and (5) causation requirement for award of benefits under BLBA was satisfied even if employee would have been disabled had he never set foot in mine due to his lung cancer and lung removal. Petition denied. 1. Labor and Employment O2680 On a claim for benefits under the BLBA, clinical pneumoconiosis refers to a specific set of enumerated diseases, while legal pneumoconiosis is a broader and less definite term that refers to any chronic lung disease that was caused in a particular instance by exposure to coal-mine dust. Black Lung Benefits Act, 402(b), 30 U.S.C.A. 902(b). 2. Labor and Employment O2687(1) On a claim for benefits under the BLBA, the miner bears the burden of