Action under 42 USC § 1983 alleging retaliatory prosecution claims under the First Amendment & malicious prosecution claims under the Fourth Amendment; Presumption of “probable cause” created by a grand jury indictment; Municipal liability; Monell v Department of Soc Servs; Distinguishing Lozman v City of Riviera Beach

The court held that plaintiff-Petsche’s retaliatory-prosecution and malicious-prosecution claims against the individual defendants failed where he was unable to rebut the presumption of probable cause created by a grand jury indictment. The retaliatory-prosecution claim against defendant-City also failed as the court found that the case on which he relied, Lozman, was legally and factually distinguishable. Petsche, a former member of the City Council, sued the City, defendant-Mayor, and other city officials under § 1983 for allegedly engaging in retaliation for actions he took during his tenure on the Council. Petsche was in the roofing business, and the company that was constructing a new police station chose his company as a subcontractor. Petsche voted on many issues related to the construction process. When the Mayor discovered Petsche’s involvement, he investigated and then wrote to the Ohio Ethics Commission, which referred the matter to the prosecutor’s office. Petsche was indicted by a grand jury but subsequently acquitted after a bench trial. He claimed that the individual defendants were aware of his roofing business and intended to punish him for his position on a city debt issue. The district court granted all defendants summary judgment on all claims. Petsche only appealed as to his § 1983 retaliatory-prosecution and malicious-prosecution claims. The court held that his claims against the individual defendants failed where he was unable to rebut the presumption of probable cause created by the grand jury indictment. A grand jury indictment establishes probable cause. A plaintiff can rebut probable cause by offering “substantial evidence that the indictment was tainted.” But the court held that he failed to do so. It also concluded that his Monell claim against the City was properly dismissed, rejecting his reliance on Lozman. That case involved a retaliatory arrest and the “Supreme Court has not extended Lozman’s retaliatory-arrest rule to the retaliatory-prosecution context.” Thus, the court remained “bound by the default rule requiring a retaliatory-prosecution plaintiff to demonstrate a lack of probable cause.” It added that he offered no evidence undermining “the presumption of regularity by the prosecutor. This materially distinguishes this case from the circumstances in Lozman.” Affirmed.